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.