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Feds Punt on Leadership Over Fracking Rules, Experts Say

New BLM rule stands up well next to state regulations, says one scientist. "But unfortunately, that's because most state regulations are very poor."

May 15, 2012
U.S. Interior Secretary Ken Salazar

Nearly two years after Wyoming became the first state to regulate high-volume hydraulic fracturing, the federal government is finally taking similar steps to supervise oil and gas drilling on public lands.

Released earlier this month, the proposed rule is now open for public comment. While the regulations it contains are a significant step forward, they've disappointed environmentalists and watchdogs who hoped that the Obama administration would lead by example.

Compared to existing state regulations, the federal rule is in the "middle of the pack," said Bruce Baizel, senior staff attorney at Earthworks, a nonprofit that advocates for responsible oil and gas drilling. "It's not a model leader but it's also not stepping back either."

The proposed rule will require operators to test for leaks, create a plan for managing wastewater and reveal some of the chemicals they use in hydraulic fracturing, or fracking.

Regulating these activities will "ensure the health and safety of the land and the public ... and raise public confidence in hydraulic fracturing," Bureau of Land Management spokeswoman Megan Crandall told InsideClimate News.

Kathleen Sgamma, vice president of government and public affairs for the industry group Western Energy Alliance, said the BLM regulations will "add more delays and cost onto an already excessively bureaucratic federal process."

At least nine states have adopted new fracking regulations in the past two years. The federal rule would affect oil and gas drilling on 700 million acres of mineral resources managed by the BLM. That includes 57 million acres of private "split estate" land, where residents own the surface rights while the BLM controls the mineral resources under ground.

The regulations are similar to those in an earlier version of the rule that was leaked in February except for one major difference: they don't require operators to disclose the chemicals used in fracking until after a well has been fractured. The leaked version would have required disclosure both before and after fracking.

Scientists say pre-drilling disclosure is crucial for two reasons—to track surface spills of chemicals that can leach into groundwater, and to establish a scientific baseline.

Some fracking chemicals are highly toxic, and even minute amounts can lead to health problems. Because water testing is expensive, and fracking fluids can contain hundreds of different chemicals, it's impossible for landowners to test for every potential contaminant, said Renée Sharp, senior scientist and California director of the Environmental Working Group, an organization that focuses on public health and the environment.

Pre-fracking disclosure could help landowners decide which chemicals to test for, she said, but even then, it might be impractical to test for every compound used during fracking.

Without baseline tests, it can be difficult to prove that subsequent contamination was caused by drilling activities, said Baizel, the Earthworks attorney. "It just makes it that much harder for those who are trying to show there's contamination."

Pre-drilling disclosure isn't unprecedented, he added. It's already required in Wyoming, "which is a big producing state, so it's not like they haven't figured it out."

Crandall, the BLM spokeswoman, said disclosure before drilling "is an extra step that is perhaps not necessary, when you're getting the same information post-drilling. The rule was crafted with input from industry, the public and [Native American] tribes. And taking all of that into account, post-disclosure seemed the best choice."

Last week, E&E Publishing, a news service that covers energy and environmental issues, reported that earlier this year White House officials met four times with industry lobbyists and once with environmentalists to discuss the proposed regulations. The issue of pre-drilling disclosure was brought up in at least one of the industry meetings. 

BLM Rules Revision Long Overdue

The BLM's fracking regulations were last revised in 1988, years before the industry began using high volume hydraulic fracturing, where up to millions of gallons of water, sand and chemicals are injected underground to extract oil and gas.

The combination of high volume fracking and horizontal drilling has allowed operators to tap tightly bound gas reserves that were once unprofitable. But the industry's rapid expansion has increased concerns about air and water contamination.

On Friday, the Environmental Protection Agency concluded that a potential case of groundwater contamination in Dimock, Pa. didn't require further action. It is also testing the groundwater in Pavillion, Wyo. and conducting a separate study on how fracking affects drinking water.

Meanwhile, New York is approaching the end of a contentious, four-year-long process to decide whether to allow high-volume fracking, and Vermont is expected to become the first state to ban fracking entirely.

The BLM rule "stands up quite well next to other state regulations," said Sharp, the Environmental Working Group scientist. "But unfortunately, that's because most state regulations are very poor."

For example, some of the states that regulate fracking don't deal with the wastewater, called flowback, which comes out of the well after it's fracked, Sharp said. Flowback water contains fracking chemicals as well as naturally occurring radionuclides from underground rock formations.

The new BLM rule would require companies to report the volume of flowback water and create a plan for its disposal. They also would have to store the waste in closed tanks or in aboveground pits lined with a plastic barrier.

Sharp said her group is disappointed that the BLM is allowing companies to use disposal pits, because of the potential for leaks and liner degradation. But she acknowledged that lined pits "are a lot better than unlined pits."

The rule also requires operators to keep "cement bond logs"—detailed records of tests that help ensure their wells are properly cemented. After drilling a well, operators pour cement between the metal casing and the surrounding rock to prevent fluids from leaking out. They then test the effectiveness of the cement sealant by running a series of tests and recording the results in the cement bond log.

"It is essentially a way of logging, from top to bottom, what the density on the cement is, so that if you have something that isn't as dense or thick as you need it to be, it tells you that you have a problem," Baizel said.

Not all states require cement bond logs, Baizel said, and he was "happy" to see that requirement in the BLM regulations.

The industry isn't happy about the requirement. Sgamma of Western Energy Alliance said the logs will require "additional reporting and oversight…[It's] another case of the federal government making it more expensive and time-consuming to operate on federal lands, and will continue putting them at a disadvantage" compared with adjacent state and private lands.

The use of cement around well casings is hardly new, said Crandall of the BLM. What's new is the agency requirement that operators submit their cement bond logs. "It's good for the environment, the public and operators. If you're confirming your well is good, essentially the public is confident in our ability to regulate fracking on public lands, and operators are in good shape…it really is a win-win for everyone."

Rule Still Protects Trade Secrets

Like all the existing state regulations, the BLM rule allows operators to avoid disclosing certain chemicals or mixtures of compounds—called products—that are considered trade secrets.

Operators will be required to submit a list of non-proprietary chemicals, along with a separate list of fracking products. Keeping the chemicals and products separate will help prevent the loss of proprietary information, Crandall said.

The disclosed information will be posted on a third-party website such as FracFocus, an industry-funded portal where companies provide voluntary disclosure. Crandall said the BLM intends to work with FracFocus to discuss ways of improving the site.

In addition to the names of chemicals, operators will also disclose the concentration of each chemical as a percentage of the total fracking fluid. Knowing the volume is important, said Sharp, because it can help landowners decide which contaminants to test for. "All other things being even, it's more likely that a chemical in higher concentration in a drilling fluid will become a problem than a chemical with a lower concentration."

Sharp said the BLM's effort to upgrade its regulations will be most helpful in states with little or no fracking oversight. Before drilling on federal land, operators must obtain a state as well as a BLM permit—and if the state rules are lax, the BLM's updated regulations can now help fill the gap. In California, for example, she said operators can frack a well without notifying regulators or landowners, and they aren't required to disclose the chemicals they used or to present a plan for wastewater disposal.

Lawmakers in California are discussing new measures to regulate fracking, but it may be years before the rules are finalized.

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