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40 Acres and a Rule: Draft Federal Fracking Regs Cover Only A Sliver of Land

The Obama administration’s newly proposed fracking rules contain some strong measures but apply to only a fraction of the country

Natural gas drilling equipment on the Pinedale Anticline, WY. (Richard Waite, Flickr)

Last week’s media coverage of the Obama administration’s newly-proposed fracking rules focused so heavily on how drilling companies would have to disclose the chemicals they use that it largely overlooked the toughest provisions: Drillers would be required to test the physical integrity of their wells, and more water would be protected from drilling. Since many wells fail because the cement and casings crack, the new tests could prevent dangerous leakages.

One major limitation: Although widely understood as “national” guidelines, the draft rules would in fact only apply to a sliver of the nation’s natural gas supply. That’s because they would apply to mineral rights managed by the Bureau of Land Management, which means areas beneath most BLM and tribal land, but scarcely any U.S. Forest Service, private or state-owned lands – where most drilling occurs. Industry has criticized the proposed rules as too restrictive.

The draft rules would require companies to conduct “mechanical integrity tests.” These include pressure tests to make sure that the well can withstand the highly pressurized fluid used for fracking. Ensuring that wells are properly sealed is considered critical for preventing water and ground contamination.

The proposed rules also expand the scope of water protected from drilling to include not just fresh water but all “usable water” – meaning lower quality water used for agriculture and construction, as well as water that can be treated to make potable. Currently, only water with up to 5,000 parts per million of total dissolved solids is protected by the BLM. The new rules would expand that definition to include water with up to 10,000 parts per million, which matches the EPA’s definition for an underground source of drinking water.

“The proposed rule will modernize our management of well stimulation activities – including hydraulic fracturing – to make sure that fracturing operations conducted on public and Indian lands follow common-sense industry best practices,” Secretary of the Interior Ken Salazar said in a statement.

The lands covered by the proposed rules are the source of “11 percent of the Nation’s natural gas supply and five percent of its oil,” according to the BLM. About 3,400 wells are drilled on these lands each year, according to the bureau, and 90 percent of those wells use hydraulic fracturing, a technique to extract natural gas by injecting into the earth highly pressurized fluids laden with chemicals, sometimes including potentially toxic ones such as benzene and lead.

Environmental activists wonder how likely the rules are to be enforced. In New Mexico, for example, the BLM oversees more than 30,000 active wells ­– with only 69 inspectors. “However strong the rules are, enforcement is only as good as staff on the ground,” said attorney Erik Schlenker-Goodrich of the Western Environmental Law Center.

Environmentalists also lambasted a provision that would require companies to disclose the chemicals they use to frack on some public lands. At issue was timing: The draft rule would allow companies to complete drilling before they make public the chemicals they had injected into the ground. Although some drilling companies report the chemicals they use to online public registries, they are not always required to do so. Many drillers claim that disclosure would amount to revealing “trade secrets.”

The timing of disclosure matters. Landowners who want to see if a nearby well is polluting their land or water need a baseline assessment of chemicals that are present before drilling. If they don’t know the chemicals the company will inject, the only way to get a baseline reading is to test for a vast number of chemicals, an expensive and impractical undertaking.

“Knowing after the fact is nice, but does not allow for any steps to be taken if the chemicals being used are of concern to the public. I urge the Interior Department to strengthen this rule,” Congressman Maurice Hinchey (D-NY) said in a statement. Hinchey co-authored national legislation to give the EPA the power to monitor all fracking activities in the U.S., which under current law the agency cannot regulate.

The proposed disclosure rules would not demand much more than the standards some states already have in place. For example Colorado and Wyoming have large swaths of public lands targeted by the draft rules, but they already have disclosure regulations that are equally stringent, if not more so, than the federal proposal. Colorado requires that companies disclose the chemicals they use in addition to their concentrations within 60 days of fracking activities. Wyoming requires disclosure of chemicals both before and after fracking, although its regulation has been criticized for not making all of those disclosures public.

“It seems like BLM has looked at state rules as a ceiling, not as a floor, for what should be done,” said attorney Schlenker-Goodrich, who charged that the administration was putting forward “half-measures.”

Industry charges that the rules would slow down drilling too much. The Independent Petroleum Association of America and ExxonMobil did not immediately respond to requests for comment, but the IPAA head Barry Russell told Reuters that the rules will “will undoubtedly insert an unnecessary layer of rigidity into the permitting and development process.”

Once the draft rule is published in the Federal Register, the BLM will take comments for 60 days before it finalizes the rule.

Drilling companies already perform mechanical integrity tests on every well they drill (contrary to what the article implies), and this particular regulation is a summary of the industries current best practices.
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Landowners who want to see if a nearby well is polluting their land or water need a baseline assessment of chemicals that are present before drilling. If they don’t know the chemicals the company will inject, the only way to get a baseline reading is to test for a vast number of chemicals, an expensive and impractical undertaking.

But the drillers ALREAY do this to protect themselves from litigation as the law assumes them to be responsible for ANY contamination within 1500’ of the well. That’s seems like a pretty important detail to leave out, doesn’t it?

Another typically hack-tacular piece from the folks at ProPublica

Emmett Smith

May 8, 2012, 3:29 p.m.

This fear tactic is as bad as Global Warming. The government is helping the companies charge more and take your money. That’s all this is.

As usual big money talks and you don’t get much bigger than the energy companies.  They want to make big money and the cost to anyone else doesn’t enter into the equation. 

Clean air and clean water are too valuable to trade for dollars no matter how big the stack is.  Most of the world has already learned this the hard way.  It seems that will be our fate too.

Robert Short

May 8, 2012, 6:14 p.m.

Just what company do you work Mike.  Yes, the water is safe.  Just because some of it burns it is still okay to drink and make coffee with.

Have many glasses per day do the execs of these companies drink? 

Do you have your eight glasses each day?

To much information out there that has been checked out to believe all these companies put out.

There are ranches in Wyoming that are worthless now because of fracking.

@ Robert Short

I dont work for an energy company, if thats what you are implying ... just another concerned citizen who is tired of the fear mongering and disinformation that passes for journalism.

Natural gas in aquifers is a problem that long outdates gas drilling and proper water well construction with adequate venting is usually more than enough to remidiate the issue.

As for the case in Wyoming, the jury is still out on that one .. lets wait to see what the peer review process comes up with.

Too restrictive huh-they mean they dont want to cause they’ll find out how many are really leaking!

Mike H
“Case in Wyoming???”  You only know of one??  Check out High Country News and other sources that are available..

Speaking of disinformation.  Speaking of Fox News Fair and Unbiased??

The BLM was emasculated long ago and what was left of that bureau has been underfunded thanks to the turf wars it lost with the Corps of Engineers over dam sites. So, what the administration has foisted on us over fracking is even more of a sick joke.

We will see the unintended consequences soon enough, but by then those who made these decisions will be retired, dead, or on a tropical beach where the damage they allowed won’t touch them.

Drilling companies can drill safely and without environmental damage if they wanted to. The technology has been available for decades, they merely choose the more profitable path.

The 10,000 ppm definition of “usable water” and the required protection for usable water zones has already existed in federal regulation since at least 1992.  Those requirements are avalable in Onshore Order number 2, and are easily located using any search engine.

How about some simple solutions:

1) Require independent baseline testing of all water and wells prior to drilling. The drillers have to pay for this. Consider it a cost of doing business, which they will pass along to the end consumer anyways.

2) Require all drillers to publish what chemicals they are using in fracking.  While I don’t agree with the drillers argument that the combination of chemicals is proprietary and secret there is a solution that can satisfy both.  They must report all chemicals that they use, without providing specific concentrations or mixtures and this information must be made public.

3) At pre-established points of time their must again be independent water/well sampling conducted.  Should be done during drilling, and after drilling for a specified period of time.

4) Require that all water/well testing data, and all the site-specific use of fracking chemicals, including mixture and concentration data, be put in a database maintained by the EPA.  This data can then be analyzed to determine if there is a correlation between the chemicals being found in well water show contamination due to the fracking chemicals.  Another impact that can be studied is the increased presence of methane and other gases. One of the things that has been missing is the possibility that the process of fracking is increasing the release of naturally occurring methane into people’s drinking water. These companies have been using the excuse that methane occurs naturally. Sure it does. But if the release of it is being increased due to your drilling activity then it’s still a bad thing.

Will this increase the price of natural gas. Possibly.  But consider the tradeoff.  I’d rather have clean water and air and pay more for sources of energy.  Or, we can just hack and cough due to polluted air and water while saying “well at least natural gas is cheap!”

James Sweeney

May 10, 2012, 7:58 p.m.

Fresh water aquifers are normally close to the surface and sealed with “Surface Pipe.”  Water shut off test is performed to insure a seal required by Department of Oil and Gas.  This is normal practice before drilling deeper. Normally addition casing is run into the well for control proposes.  Fracking the pumping slurry of sand and gravel is common on deep hard rock formations like limestone.  The depth between surface and producing can be great.  So much so that connecting surface aquifer and producing reservoir is extremely difficult if not impossible.  All this makes as much senses as shutting down all truck traffic because of one accident.  Our environmentalist need to come to grips with the fact that their extremes are going to cost them credibility.  This is like Bush making a case for WMD’s.

Alex Stromeyer

May 10, 2012, 8:42 p.m.

A look at Pa’s court records show many lawsuits settled between damaged parties and the gas industry.Non disclosure clauses are in all gas lease agreements.The courts also are obliged to not disclose settlements in lawsuits.This is a gag order on the truth on fracked gas wells.The land owners need to disclose the settlements which do show the documented effects of fracking. The gas cos have it all,the land owners do have remedies for damages,but all is cloaked in secrecy.The gas cos own Pa’s legislature,Governor,and the DER.The fines levied for the many spills,and accidents are minuscule compared to the lasting effects of polluted land,fish killed streams,ponds,and the permanent pollution to water aquifers.A well may pass a pressure test until it is fracked,then many times the “seal” fails.In time between 10 years and onward,the “seal” will fail,and the large amount of toxic frack water will pollute water aquifers.Steel pipe,does corrode,releasing the toxic brine and chemical,radioactive stew in the fracking residue.It is only a matter of time. Health effects of fracked wells are well documented,from respiratory problems to nose bleeds,and neurological disorders,cancers.The gas produced will run out in 30 years at most,then the devil’s mix will be there for millennia.Is this worth the legacy of pollution form escaped gas coming up thru the rock sub strata,bubbling up in streams,ponds,wells,and air?A conscious examination says no.

The problem is that, even accepting the potential ambiguity of the source of problems in fracking (and inconclusive reports are easy and can be sold as no correlation—check the “research” of pretty much any Superfund site), future generations are going to laugh at us for the simple reason that we’re going about this the wrong way.

I mean, sure, it’s probably fun to snake out the Earth’s crust looking for limited pockets of methane.  Like fluoride, you get to take toxic waste and convince Americans to pay you to dump it in the water, for example.  But it’s far from the only source of methane in existence, as any drunken frat-boy can tell you.

Methane is produced digestively, by burning in a low-oxygen environment, and a few other ways that are entirely sustainable and scalable.  The energy companies are—to pirate an inappropriate metaphor—buying cows when milk is free.  They are the dinosaurs that they think are in their product, and the first company that starts producing methane instead of mining it is going to force them into extinction.

You say ‘benzine and lead’. Alarmist websites add mercury, and uranium. While it is true that I am not an expert, and that the only real fracking formula I have closely read is the ‘Wyoming formula’ I do not see heavy metals being used, or necessary, when fracking.

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