Friday, April 15, 2011

EPA announces scope of new hydraulic fracturing study

EPA announces scope of new hydraulic fracturing study

Former Bush EPA official says fracking exemption went too far; Congress should revisit by Abrahm Lustgarten
ProPublica, March 9, 2011
When Benjamin Grumbles was assistant administrator for water at the Environmental Protection Agency in the George W. Bush administration, he oversaw the release of a 2004 EPA report that determined that hydraulic fracturing was safe for drinking water. Then he watched as Congress used those findings to bolster the case for passing a law that prohibited the EPA from regulating fracking under the Safe Drinking Water Act.

Q: In the 2004 EPA study, which examined hydraulic fracturing in coalbed methane gas wells, a commission of experts concluded that the process "poses little or no threat" to underground sources of drinking water. That study has since been criticized. Where do you stand?

I saw that there were accusations, by Congressman (Henry) Waxman and Congresswoman (Diana) DeGette, that somehow politics were involved in that commission, or that it was too heavily slanted towards an industry perspective and that there were not enough environmental groups on that commission. There was also an employee in Denver who claimed whistle-blower status and felt that there was a greater risk to groundwater than was being acknowledged. Honestly, I never felt that the claims had much merit.

The career employees reviewing the report were quite comfortable with the integrity and product of that commissioned report. So, they recommended to me that hydraulic fracturing was not the type of threat that should be as high a priority as other types of threats to drinking water supplies. They took great offense to some of the other accusations that were made that the commission was biased in some way.

Q: You've said the study was never intended to be a "clean bill of health." Can you explain?

When we got the report, it was a snapshot in time. It was a thorough review describing the issues. Whether it's hydraulic fracturing or any other type of practice that can have an impact on the environment, one single report shouldn't be the basis for a perpetual, never-ending policy decision.

It wasn't meant to be a bill of health saying 'well, this practice is fine. Exempt it in all respects from any regulation.' I'm sure that wasn't the intent of the panel of experts, and EPA never viewed it that way. That's one reason why we were urging Congress to say 'look, if you are going to issue an exemption, ensure that it is not perpetual.'

Q: You're referring to the exemption passed by Congress as part of the 2005 Energy Policy Act, which prohibited the regulation of fracturing under the Safe Drinking Water Act. What did you think about the idea of an exemption?

The career staff and I felt that when Congress provides a permanent exemption in an environmental statute, they need to be very careful about that and they need to have some built-in review process or safeguards so that if there is a risk presented, either the states or the EPA can then revisit it.

Q: The EPA's 2004 report did find that diesel fluid in fracturing presented a risk to groundwater. How was this addressed?

The former administrator [of water] Tracy Mehan recognized that under current law the agency was not regulating or prohibiting diesel fluids from being used in the hydraulic fracturing process, so he signed, on behalf of the EPA, an MOU [memo of understanding] with major companies that have a major stake in this, voluntarily getting them to commit not to use diesel fluids for the hydraulic fracturing process.

Based on current law and what tools we had, I felt this was a positive step. And it was a sincere step forward for us to make sure that we were engaged with the industry and engaged in the sense that they knew we were watching this and knew that it could be a problem if they used this sort of a process.

Q: And now we learn from some members of Congress that diesel use continued despite those efforts ...

It's disappointing, and the agency needs to follow up and ensure that the industry is providing accurate and timely information.

I think if the information is true that industry withheld information or misled regulators or the policy makers, then that is serious, and they need to provide all the relevant information they have.

Sen. Inhofe
The Safe Drinking Water Act was enacted in 1974 to establish drinking water standards and to control permanent disposal of waste by underground injection. By 1974, hydraulic fracturing had been in commercial operation for 25 years. This law was not designed nor intended to regulate the practice and the legislative history demonstrates that. The 1974 conference report states that none of the Act’s underground injection provisions are to “needlessly interfere with oil or gas production.” In fact, the 1980 amendments were probably the most significant until 2005 for clarifying the Act’s application to oil and gas operations. The 1980 amendments created a new section 1425 to allow States to regulate underground injection from two types of oil and gas operations known as injection wells and disposal wells. However, given the chance to additionally address hydraulic fracturing, Congress declined. In the 2005 Energy Bill, Congress specifically clarified the Act is not intended to apply to hydraulic fracturing.
There are a myriad of federal statutes such as federal workplace rules, the Emergency Planning and Community Right to Know Act, the Toxic Substances Control Act, among others which regulate the storage and disposal, transporting, handling, and reporting of chemical use. Federal law requires disclosure of any release to the environment. Those statutes overlay state laws which also include extensive rules permitting oil and gas drilling and production. No state has been required to regulate hydraulic fracturing under the Safe Drinking Water Act with the exception of Alabama. The 11th Circuit issued an opinion in 1997 ignoring legislative history, oil and gas industry practices, and the clear text of the law, finding that Alabama should subject hydraulic fracturing in coal bed methane production to the Safe Drinking Water Act. However, hydraulic fracturing has not been subject to the Safe Drinking Water Act and is not correctly governed by the Act.
I am not alone in this opinion. President Obama’s Energy Czar agrees with me. In 1995, as EPA Administrator, Carol Browner wrote in response to litigation that federal regulation is not necessary for hydraulic fracturing. She correctly made the point that the practice was closely regulated by the states and, “EPA is not legally required to regulate hydraulic fracturing.” Most importantly, she further wrote that there was “no evidence that hydraulic fracturing resulted in any drinking water contamination” in the litigation involved…
… As early as 1998, the Ground Water Protection Council conducted the first survey of the 25 states in which hydraulic fracturing for oil and natural gas production occurs for any complaints of groundwater contamination. The survey reported no instance of contamination from the practice. In 2002, the IOGCC representing 37 states conducted its own survey making the same findings. On June 12, the Oklahoma Corporation Commission addressed the issue of hydraulic fracturing again in correspondence with the IOGCC. The Corporation Commission wrote that it has been regulating oil and gas drilling and production for 90 years which has included tens of thousands of hydraulic fracturing operations over the past 60 years. The Commission wrote, “You asked whether there has been a verified instance of harm to groundwater in our state from the practice of hydraulic fracturing. The answer is no.”
States have been regulating oil and gas exploration and production for years. The Department of Energy and Ground Water Protection Council released a report in May titled, “State Oil and Natural Gas Regulations Designed to Protect Water Resources” where it described state regulations which require multiple barriers, casings, and cement reinforcement to protect against groundwater contamination. Fracturing involves removing thousands of gallons of water from the well which includes the fracturing fluids. Once these fluids are returned to the surface, regulations require they are treated, stored, and isolated from ground water zones. All these processes together work to significantly reduce risk to groundwater. This DOE and GWPC report ultimately concluded that federal regulations on fracturing would be “costly, duplicative of state regulations, and ultimately ineffective because such regulations would be too far removed from field operations.” Equally interesting, the report also concluded that the “only alternative to fracturing in reservoirs with low permeability such as shale would be to simply have to drill more wells.” These findings mirror the EPA’s 2004 report of hydraulic fracturing in CMB production. EPA noted that fracturing involves the removal of thousands of gallons of ground water. This removal includes the fracturing fluids and the possibility that fracturing chemicals effect groundwater. EPA also concluded that the low permeability of rock where hydraulic fracturing is used acts as a barrier to any remnant of fracturing chemicals moving out of the rock formation. None of these findings are new. In the 1980 amendments to the Safe Drinking Water Act, Congress acknowledged, “32 states that regulate underground injection related to production of oil and gas believe they have programs already in place to meet the requirements of this Act….States should be able to continue these programs unencumbered with additional federal requirements.”

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