Fracking (Hydraulic Fracturing) 5 of 7

Last spring I did a pretty thorough look into fracking so here a copy. Necessarily due to the length it is broken into multiple parts. Here are the links for all parts: Fracking: 1, 2, 3, 4, 5, 6, 7, Citations.

U.S. Policy

Earlier it was mentioned that the first instance of fracking occurred in 1947. From 1947 to 1997 fracking remained under the radar; due to there not being a large enough concern or because fracking was not performed in as quite as risky a manner. Before 1997, the EPA asserted that they did not have legal jurisdiction over fracking. This was contested by Legal Environmental Assistance Foundation, INC. (LEAF), in 1997 in the court case LEAF v EPA in the United States Court of Appeals, Eleventh Circuit.

Summary of Leaf v. EPA, 118 F.3d 1467 (11th Cir. 1997):

LEAF filed a petition to be heard in the USCA 11’th Circuit because they disagreed with EPA’s denial of withdrawal of approval of Alabama’s underground injection control (UIC) program. The Eleventh Circuit Court decided to hear the case because they felt that the EPA was interpreting the definition of “underground injection” differently than the statutory definition. They found the statutory definition of underground injection to be “the subsurface emplacement of fluids by well injection” 42 U.S.C § 300h(d)1. The court also considered the five definitions of wells in the Safe Drinking Water Act (SDWA):

Class 1: “wells used to dispose of hazardous, industrial, or municipal wastes beneath underground sources of drinking water. 40 C.F.R. § 144.6(a)”

Class 2: “”[w]ells which inject fluids: (1) [w]hich are brought to the surface in connection with … conventional oil or natural gas production …; (2) [f]or enhanced recovery of oil or natural gas; and (3) [f]or storage of hydrocarbons.” Id. § 144.6(b).”

Class 3: “wells which inject for extraction of minerals”

Class 4: “wells used to dispose of hazardous or radioactive wastes into or above underground sources of drinking water. Id. § 144.6(c) and (d).”

Class 5: “”[i]njection wells not included in Classes I, II, III, or IV.” Id. § 144.6(e).”

The EPA had previously given the state of Alabama the authority to run their own UIC program, which was officially done in two parts, the first in 1982 and the second in 1983. LEAF basically wanted EPA to reclaim that authority because they felt that the state of Alabama was negligent in their administration of the SDWA regulation for UIC. They had testimony submitted by the State Oil and Gas Board defining:

“”Hydraulic fracturing” involves the injection of fluids and a propping agent (usually sand) into a coal bed”

Standing was established by the court to justify hearing the case. After a long analysis of the evidence and precedent Birch in his majority opinion concluded:

LEAF petitioned EPA to initiate proceedings for the withdrawal of Alabama’s UIC program because Alabama does not regulate hydraulic fracturing associated with methane gas production. EPA denied the petition on the ground that hydraulic fracturing does not fall within the regulatory definition of “underground injection.” Because we find that EPA’s interpretation of its regulations is inconsistent with the statute, we GRANT the petition for review and REMAND for further proceedings consistent with this opinion.”

In short, the court indicated to the EPA that yes the SDWA does indeed require the EPA to regulate fracking if it poses an environmental hazard.

Due to the courts telling the EPA that fracking was indeed their responsibility to regulate the EPA designed a study to determine if fracking creates a risk that requires regulation. This study began in 1999 and was published in 2004, with a conclusion that fracking poses little to no threat (Cronkhite et al, 2004). A year after the EPA released these results Congress passed and George Bush signed into law the Energy Policy Act.

The Energy Policy Act was the ‘nail in the coffin’ for environmentalists seeking to prevent fracking. It modified the definition of “Underground Injection” in the SDWA:

SEC. 322. HYDRAULIC FRACTURING.
Paragraph (1) of section 1421(d) of the Safe Drinking Water Act (42 U.S.C. 300h(d)) is amended to read as follows:
‘‘(1) UNDERGROUND INJECTION.—The term ‘underground injection’—
‘‘(A) means the subsurface emplacement of fluids by well injection; and
‘‘(B) EXCLUDES
‘‘(i) the underground injection of natural gas for purposes of storage; and
‘‘(ii) the underground injection of fluids or propping agents (other than diesel fuels) pursuant to hydraulic fracturing operations related to oil, gas, or geothermal production activities.’’

Please take note that the wording change “the underground injection of fluids or propping agents” almost exactly matches the material submitted during LEAF v EPA to define hydraulic fracturing: “involves the injection of fluids and a propping agent”. It appears from this comparison that this particular change was inserted directly to undermine the 11’th circuit court telling the EPA that they were obligated to regulate fracking if it posed a risk. This one change effectively gave the oil industry a free pass in regards to the SDWA. The Energy Policy Act did not stop at changing the SDWA. It also modified the Clean Water Act (CWA):

The term “pollutant” means dredged spoil, solid waste, incinerator residue, sewage, garbage, sewage sludge, munitions, chemical wastes, biological materials, radioactive materials, heat, wrecked or discarded equipment, rock, sand, cellar dirt and industrial, municipal, and agricultural waste discharged into water. This term does not mean (A) “sewage from vessels” within the meaning of section 312 of this Act; or (B) water, gas, or other material which is injected into a well to facilitate production of oil or gas, or water derived in association with oil or gas production and disposed of in a well, if the well used either to facilitate production or for disposal purposes is approved by authority of the State in which the well is located, and if such State determines that such injection or disposal will not result in the degradation of ground or surface water resources.”

            Earlier when describing the process of fracking it was discussed that 50,000 lbs of chemicals per well are injected into the well with about 5 million gallons of water (chemical waste). Fossil fuels are degraded organic matter derived from past living organisms. Also mentioned is that frackwater pumped out of the ground and stored in pits could bring radioactively decaying material and heavy metals to the surface. The propping agent – sand – is put into the water when injected into the ground. Further when the millions of gallons of water resource per well (which is fortunately abundant by observation of the oceans) is injected into the ground to dispose of the frackwater waste. Then it is removed as a surface resource indefinitely. All of these actions could potentially qualify fracking for regulation under the CWA, especially if frackwater could be shown to contaminate underground aquifers. However, once again, Congress and the President established a blanket exclusion which was given to the fracking industry suggesting that they may frack without oversight.

Moving to more recent times Barack Obama was elected as president, and a year later he released his energy plan, titled “Blueprint for a Secure Energy Future” (Obama, 2009). August 4, 2011, arrives and 115 Environment and Health groups submit, by hand, a citizen petition requesting that the EPA take at least ‘monitoring action’ on fracking wells. The EPA adopted part of this 30 page petition, but decided against enacting portions which were inconsistent with President Obama’s Blueprint. A fully-detailed dialogue between petitioners and the EPA as well as a copy of the Presidential Blueprint can be found on the EPA website (at url: http://www2.epa.gov/hydraulicfracturing). In 2013, the EPA released a statement. A portion of the statement was dedicated to explaining the reasoning behind denial of portions of the petition. The EPA cited: unnecessarily broad request (they implemented a more narrow version), and for denial of the other portion the EPA reasoned that the charge of requiring data collection of oil companies was unnecessary because EPA has sufficient information to make an informed decision at this time without putting additional burden on the oil companies. In November 2011, the EPA released information about a new study plan, unrelated to the petition, as the new study was directed by Congress in FY 2010. The results of this study are expected sometime in 2014. Finally, in 2013 the EPA proposed to only regulate waste water discharges from fracking and to not regulate any other aspect of the fracking process.

In summary, of the policy portion in 1997, the courts ruled that EPA had a jurisdictional responsibility to examine fracking and its effect on the environment and health. Then, in 2004 the EPA determined there was little or no effect on the environment or health from fracking. Next in 2005 President Bush signed legislation that gave fracking immunity from the SDWA and the CWA. Again in 2011, protections were not put in place due to their conflict with Obama’s 2009 Blueprint. This action suggests that legally the government should protect the public from fracking if it is unsafe. The federal government is aware of these concerns. But, under Republican direction, they took active steps to bypass the courts decision, maybe because they favored the perceived economic benefits of fracking? Then later, a Democratic controlled Congress ordered the EPA to conduct a new study, but the EPA also declined to implement certain restrictions based on the Obama blueprint, possibly passive steps to not inhibit fracking, due to the perceived economic benefits of fracking?