This paper will explore fracking wastewater regulation and arguments made about what the role federal law should play in regulations.
Hydraulic fracturing, also known as fracking is a method of extracting subsurface natural gas. Water, sand, and secret chemical additives are pumped into horizontal veins of shale deposits and cause pressure within the rock formation, developing small fractures from which natural gas escapes. Natural gas from fracturing burns with less carbon release than coal, but it has tradeoffs. One well can use 2-16 million gallons of water with about 250 thousand cubic feet (44,527 barrels) of natural gas per well. Flowback is the water that comes back to surface after the initial fracking. There are about 10 barrels of wastewater per barrel of natural gas.
Produced water is the briny remain of fracking once the gas has been separated from the rest of the liquids. Fracking disturbs rocks as deep as 10,000 ft under the Earth’s crust, it brings to the surface radionuclides called Technologically Enhanced Naturally Occurring Radioactive Materials (TENORMs). The EPA has declared TENORMs from fracking (uranium, thorium, and radium ) pose a low, but serious risk of exposure to radioactive dust inhalation and gamma radiation to those within 100 meters of where it is disposed of.
Rules for waste and toxic substances are promulgated in United States federal law and regulated by the Environmental Protection Agency (EPA). In 2004, the EPA concluded coalbed methane wells pose little to no threat to underground sources of drinking water. One year later, due to its classification as oil and gas exploration and production, hydraulic fracturing waste found itself exempt from many elements of federal environmental statutes provided by the Energy Policy Act of 2005’s amendments to longstanding acts. These include an exemption from obtaining the Clean Air Act-mandated Title V permit. The Clean Water Act was amended so that the EPA could not regulate stormwater runoff from fracking sites. The EPA only has jurisdiction through the Resource Conservation and Recovery Act to regulate Class II wells (fracturing wells and waste disposal wells), under its Underground Injection Control program when the injection fluid includes diesel. The Energy Policy Act of 2005 amended the Safe Drinking Water Act to exclude 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. This is called the Halliburton Loophole.
Fracking is under a categorical exclusion within the National Environmental Policy Act. This excludes the practice from the need to Environmental Impact Statement—which evaluates the effect an activity will have on the environment— for fracking. Instead, the U.S. Department of Interior’s Bureau of Land Management updates their Environmental Impact Statement for the Allocation of Oil Shale and Sands and amended land use plans to auction off hundreds of thousands of acres of land in Wyoming, Colorado, California, and Utah. Last year, U.S. District Court judge for the Central District of California, Judge Michael Fitzgerald, ruled that the Bureau of Land Management would have to do more research preliminarily before such an action could be taken, regardless of knowledge of specific parcel sites.
CERCLA/Superfund gives the EPA regulating power. The EPA has not revised regulations for oil and gas waste in the Resource Conservation and Recovery Act since they established the need for such in 1988. In 2016, citizens brought a federal lawsuit in the District Court for the District of Columbia against the EPA and won a settlement for the EPA to revise the rules in December . The EPA’s authority and duty to regulate fracking wells when Alabama’s statutes did not was questioned in a 1997 decision by the U.S. Court of Appeals Eleventh Circuit, which concluded that fracking wells were included in underground injection .
There have been attempts by Democratic legislators to force the EPA to write more stringent regulations in regards to the disposal of the produced water and to repeal amendments that allow fracturing exemption in the Resource Conservation and Recovery Act. The Fracturing Responsibility and Awareness of Chemicals Act (FRAC) has been brought to the floors of both houses of Congress in 2009 and 2011, and in the Senate 2013 and 2015, all to no avail. It calls for the disclosure of chemicals in the liquids used for fracking and amendments to the Safe Drinking Water Act that define hydraulic fracturing as a regulated activity and to repeal exemptions for hydraulic fracturing.
The EPA banned the disposal of wastewater from hydraulic fracturing in publicly owned water treatment facilities in 2016. However, waste finds its way into communities in many ways. Sludge and other solid waste from fracking makes its way into the country’s landfill through filter socks, pipes, and tank bottoms. The wastewater travels across state lines in order to be disposed of. New York allows private landfills to accept solid frack waste though the state banned the conducting fracking. The interpretation of Dormant Commerce Clause in the Supreme Court’s City of Philadelphia v. New Jersey (1978) set precedent for an analysis of the legality of whether or not a state could discriminate against importation of waste. This case was used to examine Ohio’s two-tier wastewater disposal fee, charging a higher fee for wastewater produced out of state.
The possibly dangerous repercussions of the practice of disposing of produced water beneath the water table through injection wells has been scrutinized. Citizens have published videos setting their tap water on fire due to aquifer contamination. Fracking legislation varies by state. New York, Hawaii, Vermont, and Maryland are the only states in the country that have banned fracking altogether. Five counties in California have banned fracking, but Colorado and Ohio state Supreme courts have ruled local governments within their jurisdiction do not have the power to ban hydraulic fracturing activities activities.,, Former Pennsylvania governor Ed Rendell advocates for community control over fracking in their areas, though Pennsylvania local governments can\’t ban fracking either.
With state departments of interior, environmental protection, and natural resources left to their own devices in regulating, many resort to permit-based regulation. States often charge severance taxes for wells as a rate on the amount of gas produced. Pennsylvania is one of the only states with fracturing business that does not charge a severance tax. States also regulate the amount of time a well can be unproductive, sit idle, before it must be plugged.
With scarce regulation in the industry and varying degrees of scrutiny from state legislation, tort claims are often the route for remedy. The most common are trespass, nuisance, and negligence. Because states vary in regulation of pit liners, venting, and flaring, all practices that reduce the risk of accidents, citizens are forced to sue large energy companies for water contamination, ground sinkings, and earthquake damage. This system is not effective, as the American Bar Association cites procedural barriers such as providing specific quantities of chemicals plaintiffs were exposed to and the linkage to any resulting disease (Lone Pine Order) and motions for sanctions by fracking companies to remove cases due to inadequate expert evidence.
Curtis Morrison calls for a Federal Fracking Waste Disposal Commission. Without standard minimum regulation for disposal of wastewater, we leave states that are more economically vulnerable in a race to the bottom, making themselves more amenable to wastewater management industry through lax to no regulation.
Sara L. Rafferty, legislative assistant to Texas State Representative support the FRAC Act. She has also criticized the segregation of fracking research across 3 different agencies: the EPA, Department of Interior, and Department of Energy. Rafferty also calls for more disclosure about the practices of fracturing. In order to get around the argument about corporate secrets, she suggests a reading room for government to become informed. However, she acknowledges that this practice would require override of the Freedom of Information Act.
Rafferty also suggests more cooperation between state entities and the EPA or some form of central government, while Morrison models his proposed Fracking Disposal Regulatory Commission after the Congress United States Nuclear Regulatory Commission that was made in 1974. Features Morrison promulgates are regional offices in proximity to where heavy concentrations of fracking occurs; short driving distances away from fracking sites. He would like the commissioners appointed by the President and confirmed by the Senate, all of this empowered through a passed act.
A contest to any proposal to regulation when it pertains to technological and environmental standards would be that of the risk of regulatory/agency capture Regulations would cost the companies plenty of money and compromise what Morrison calls the use of fracking as a geopolitical tool. The counter of technological regulation is the stagnation of innovation. Harvard Business School professor, Michael Porter purports that regulations must have certain characteristics in order to spur innovation, not stall it. Those include clear and measurable goals, performance standards, defined phase-in periods, universal measurement reporting systems, and required timely reports.
Conclusion
Central regulation is scant, but something to keep in mind is the self regulation that hydraulic fracturing firms have been practicing. As early as 2011, firms stopped disposing of wastewater at publicly owned water treatment location and the EPA did not ban the practice until 2016. Some companies have willingly disclosed the chemical properties of their fracking liquid. However, that does not mean we can wait on the goodwill of companies or the states they bring a tax base to to keep them in check.
Though the American Petroleum Institute has invested $81 billion in GHG release mitigation as of 2015, the Clean Air Act should be amended to require a composite air pollution in wells. The drilling process of methane-rich natural gas, releases the gas, which is the 100 times more powerful in trapping heat in the atmosphere than carbon dioxide. The FRAC should be passed. The Safe Drinking Water Act should empower the EPA to regulate the disposal process through injection and open ponds. The waste is too much of a threat to local water supplies. Ohio has been host to earthquakes caused by wastewater injection and Pennsylvanian water tables have been contaminated after
More strenuous regulation is needed within the fracking business. Wastewater is only one facet. However, with an administration that is more pipeline-friendly and anti-big government, it is hard to say any will come within the next four years.
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