RULES OF THE ROAD:
Why and How to Regulate Fracking
Ann Alexander
Senior Attorney, Midwest Program
Natural Resources Defense Council
National Moot Court Championship
January 23, 2014
Risks associated with fracking
Hot topics in fracking regulation
Risks of High-Volume
Horizontal Fracking
Air emissions
Depletion
of water
resources,
aquatic life
impacts
Hazardous
chemicals;
industry seeks
trade secret
protection
Out-of-zone
fractures,
disturbance of
pollutants
Leaks, spills,
volatilization
Leaks from
disposal
wells; impact
on sewage
treatment
plants;
seismicity
Rising Concerns about Health
Impacts from Natural Gas Production
The National Institute for
Occupational Safety and
Health (NIOSH)
National Environmental Public Health
Tracking Network
Concerning finding: “They found that proximity
to fracking increased the likelihood of low
birth weight by more than half, from about 5.6
percent to more than 9 percent. The chances
of a low Apgar score, a summary measure of
the health of newborn children, roughly
doubled, to more than 5 percent.”
Need for independent studies: “Much of the
available research has been sponsored either
by the energy industry or by its critics.
Independent studies have found evidence of
well-water contamination in areas close to
fracking activity.”
Prior Difficulty in Obtaining Data: “Establishing
a direct link between fracking and human
health, though, has been complicated by a lack
of information on the chemical substances
used in the process and the difficulty of
obtaining health records that include residence
data.”
Establishing causation: “While the study
strongly indicates that fracking is bad for
infant health, more work is needed to
understand why.”
Health Threats From Oil & Gas
Development with Fracking
Air Quality
Diesel Particulate Matter (PM) (respiratory and cardiovascular)
Ozone (respiratory)
Air Toxics (respiratory, neurological and immune system, carcinogens)
Silica (lung disease)
Noise & Light Pollution
(Sleep disturbances, cardiovascular impacts)
Public Safety
Accidents, Explosions,
Fires
Water and Soil Contamination
Spills, Leaks, Chemical Migration, and Waste Disposal
Methane in Drinking Water (explosive & asphyxiation hazard)
Types of Air Pollution from Natural
Gas Development and Processing
 Local
 Diesel Particulate Matter (PM)
 Air Toxics (i.e. benzene, formaldehyde, etc.)
 Silica
 Regional
 Ozone Precursors (VOCs and NOx)
 Global
 Global warming pollutants (methane)
Pollutants and Sources from Shale Gas
Development and Production
Local Impacts
Table used with permission from Robinson AL. 2012 Air Pollutant Emissions from Shale Gas Development and Production. IOM
Roundtable http://www.iom.edu/Activities/Environment/EnvironmentalHealthRT/2012-APR-30.aspx
State of Wyoming, Department of Health. 2013. Associations of Short-Term Exposure to Ozone and Respiratory Outpatient Clinic Visits — Sublette County,
Wyoming, 2008–2011. http://www.health.wyo.gov/news.aspx?NewsID=589
Proximity to well sites was linked to increased
levels of air toxics and associated health risks:
• Median levels of xylenes were 9 times higher in
immediate proximity
• Elevated risk for respiratory and neurological impacts
within ½ mile
• Elevated cancer risk within ½ mile
Several additional
recent studies have
identified oil and gas
production as
contributing to poor
air quality.
Federal regulatory efforts
require pollution controls
but fail to address all
sources, phases, and types
of drilling; and delay
safeguards until 2015.
Threats to Drinking Water Quality
Surface Contamination
 Spills
 Waste disposal through WWTPs
 Resource Depletion
Sub-Surface Threats
 Faulty Well Construction
 Unidentified Faults and Fractures
 Abandoned Wells
 Unintended Fracturing
 Underground injection waste
disposal
Contaminants:
Methane, Hydrocarbons, BTEX,
Radioactivity, Metals, Other ?
• Study was conducted
in NY and PA.
• Found an association
between shale gas
extraction and
methane
contamination of
drinking water.
• Levels in some wells
pose health and
safety risk.
Pavillion, Wyoming groundwater
contamination investigation
• Methane and dissolved
hydrocarbons found in private
wells.
• Shallow ground water
contaminated with: benzene,
xylene, and hydrocarbons.
• Suspected contamination of
deeper groundwater resources.
Other Public Health Threats
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Photo by
Thinkstock.com
Risks to food supply
Strain on healthcare system
Increased traffic deaths
Earthquakes
Psychosocial
stress/community
disruption
Federal Exemptions and Loopholes
 Resource Conservation and Recovery Act (waste
disposal)
 Safe Drinking Water Act (underground injection)
 Superfund law (spill cleanup)
 Clean Water Act (permits for discharge of pollutants)
 Clean Air Act (aggregation of sources)
 Federal Motor Carrier Safety Regulations (governing
trucker shift hours)
 Emergency Planning and Community Right to Know
Act (reporting of toxic releases)
 National Environmental Policy Act (EIS requirement)
State Regulation
Overview
 Fracking has historically occurred in many states
for decades, but not so much (i) high volume, and
(ii) horizontal
 States where fracking is occurring regulate it in
some form, but strength of regulations varies
greatly
 Ongoing or anticipated development of new
fracking regulations in New York, Illinois,
California, North Carolina, Michigan.
State Regulation
Applicability
Necessity of a threshold
Basis for threshold
Non-water fracks
State Regulation
Chemical disclosure
Timing of disclosure
Substance of disclosure
Location of disclosure
Trade secret protection
Disclosure to health professionals of
trade secret-protected information
Least toxic alternative analysis
State Regulation
Chemical disclosure
State Regulation
Chemical disclosure
State Regulation
Chemical disclosure
State Regulation
Setbacks
Setback distances (and measuring
parameters)
Scope of protection
 Basis for setbacks and supporting
data
Waivers
State Regulation
Public participation
Application requirements
Notice and comment
Public hearings
Citizen suits
Challenges to trade secret
protection determinations
State Regulation
Fluid storage and disposal
 Pits versus tanks
 Testing requirements
 Allowed disposal methods
State Regulation
Water use
 Withdrawal location identification
 Minimization/recycling
requirement
 Drought emergency
State Regulation
Air emissions
Federal
regulations still
leave gaps:
Oil not
covered
Methane not
covered
Photo © Robert Donnan
State Regulation
Water testing/presumption of liability
When to test
Where/how to test
What to test for
Presumption of liability
State Regulation
Other
Well preparation and drilling requirements
Permit suspension and revocation
Seismicity regulations
Ban on injection of diesel
Plugging abandoned wells
Reclamation requirement
Bonding and insurance requirements
Huffington Post photo
thank you