Posted March 18, 2015
A number of congressional Democrats say they plan to reintroduce legislation to repeal the oil and natural gas industry’s “exemption” from the federal Safe Drinking Water Act (SDWA) and require disclosure of chemicals using in hydraulic fracturing.
This “Back to the Future” exercise – it first emerged in 2009 – is founded on two falsehoods:
- That industry is exempt from SDWA
- That currently there’s no disclosure of chemicals used in fracking.
In short, the so-called “FRAC Act” that some in Congress hope to reanimate is one of those Washington solutions in search of a problem.
So, let’s have a “Back to the Future” discussion of federal regulation and fracking, because – yes, we’ve been here before. A 2013 Congressional Research Service (CRS) report does a thorough job of corralling the relevant questions and answers. First, some background:
Historically, the Environmental Protection Agency (EPA) had not regulated the underground injection of fluids for hydraulic fracturing of oil or gas production wells. In 1997, the U.S. Court of Appeals for the 11th Circuit ruled that fracturing for coalbed methane (CBM) production in Alabama constituted underground injection and must be regulated under the Safe Drinking Water Act (SDWA). This ruling led EPA to study the risk that hydraulic fracturing for CBM production might pose to drinking water sources. In 2004, EPA reported that the risk was small, except where diesel was used, and that national regulation was not needed. However, to address regulatory uncertainty the ruling created, the Energy Policy Act of 2005 (EPAct 2005) revised the SDWA term “underground injection” to explicitly exclude the injection of fluids and propping agents (except diesel fuel) used for hydraulic fracturing purposes.
This was reinforced when Congress amended the definition of “underground injection” in the SDWA. CRS:
This amendment clarified that the UIC (underground injection control program) requirements found in the SDWA do not apply to hydraulic fracturing, although the exclusion does not extend to the use of diesel fuel in hydraulic fracturing operations.
It’s false to say fracking is exempt from the SDWA, because SDWA applies to operations in certain states that use diesel fuel. More importantly, however, hydraulic fracturing was never meant to be covered by the SDWA. And that’s because fracking is well covered by state regulatory regimes. CRS:
Both the GWPC (Groundwater Protection Council) and the IOGCC (Interstate Oil and Gas Compact Commission) oppose federal regulation of hydraulic fracturing, noting that this process is regulated by the states, sometimes specifically, but most often through general oil and gas production regulations, policies, and practices. The IOGCC argues that member states have adopted comprehensive laws and rules to provide for safe operations and to protect drinking water sources, and that these states have trained personnel with expertise to effectively regulate oil and gas exploration and production, thus making states the best-suited regulators of hydraulic fracturing.
CRS then quotes IOGCC, which underscores the case for keeping hydraulic fracturing regulatory responsibility with the states:
“Hydraulic fracturing is currently, and has been for decades, a common operation used in exploration and production by the oil and gas industry in all gas producing states. Because of the unique position of the states and their collective expertise on matters concerning the oil and gas industry, regulation of hydraulic fracturing should remain the responsibility of the States. The States have as much of a vested interest in the protection of groundwater as the federal government and as such, will continue to regulate the process effectively and efficiently, taking into account the particulars of the geology and hydrology within their boundaries. There is not a “one-size fits all” approach to effective regulation.”
The fact is at least eight federal environmental and public health laws apply to unconventional oil and natural gas development, hydraulic fracturing and related activities – in addition to a host of state laws and regulations tailored to individual shale plays. According to the U.S. Government Accountability Office (GAO), these include the SDWA (for certain operations using diesel fuel and waste disposal wells); the Clean Water Act; the Clean Air Act; the Resources Conservation and Recovery Act; the Comprehensive Environmental Response, Compensation, and Liability Act; the Emergency Planning and Community Right-to-Know Act; the Toxic Substances Control Act; and the Federal Insecticide, Fungicide and Rodenticide Act.
Now, about chemical disclosure. Since April 2011 the FracFocus.org chemical disclosure registry has provided detailed information to the public on specific wells. It’s now in its third revision and covers more than 91,000 wells. It includes information about hydraulic fracturing and the purposes of chemicals in fracking fluids – keeping in mind that additives typically account for less than 1 percent of fracking fluid content. The other 99 percent and then some is water and sand.
Something else to remember: Industry wants clean water and air. We want to keep the water and air clean in the communities where we work – and live. Environmental protection and safety are fully integrated into what we do and in many cases exceed what is covered by statute. Because operating safely and responsibly is fundamental to remaining a good steward and a good neighbor.
ABOUT THE AUTHOR
Mark Green joined API after a career in newspaper journalism, including 16 years as national editorial writer for The Oklahoman in the paper’s Washington bureau. Mark also was a reporter, copy editor and sports editor. He earned his journalism degree from the University of Oklahoma and master’s in journalism and public affairs from American University. He and his wife Pamela live in Occoquan, Va., where they enjoy their four grandchildren.