It’s not my Fracking Problem!
Regulations, Liability, and the
Process of Hydraulic Fracturing
Katie Heath
November 30, 2010
Hydraulic Fracturing
Underground Injection Wells Under the Safe
Drinking Water Act
Legal Environmental Assistance
Foundation v. EPA(1997)
• In 1994, LEAF petitioned the EPA to withdraw its
approval of the Alabama Underground Injection
Control (UIC) plan, as it failed to include hydraulic
fracturing.
• EPA denied the petition, stating that the SDWA
was concerned with injection of fluids for
placement underground, and fracking was not
covered under the statute.
• LEAF petitioned the 11th Circuit for Review,
asserting that denial was inconsistent with the
SDWA
LEAF v. EPA
“EPA's argument that a
methane gas production
well is not an "injection
well" because it is used
primarily for gas
extraction is
spurious…In view of
clear statutory language
requiring the regulation
of all such activities, they
must be regulated,
regardless of the other uses
of the well in which these
activities occur.”
Conasauga Shale Formation,
Alabama
2004 EPA Report
“Based on the information collected and
reviewed, EPA has concluded that the injection
of hydraulic fracturing fluids into CBM wells
poses little or no threat to USDWs and does
not justify additional study at this time.”
Weston
Wilson Letter
“EPA's conclusions are
unsupportable. EPA has
conducted limited research
reaching the unsupported
conclusion that this
industry practice needs no
further study at this time.
EPA decisions were
supported by a Peer
Review Panel; however
five of the seven members
of this panel appear to
have conflicts-of-interest
and may benefit from
EPA's decision not to
conduct further
investigation or impose
regulatory conditions.”
Energy Policy Act of 2005
“Halliburton Loophole”
42 U.S.C. §
300h(d)(1)(B)(ii)
The term “underground injection”—
(B) excludes—
(i)the underground injection of
natural gas for purposes of storage;
and
(ii)the underground injection of fluids
or propping agents (other than diesel
fuels) pursuant to hydraulic
fracturing operations related to oil,
gas, or geothermal production
activities.
33 U.S.C. § 1362:
“water, gas, or other material which is
injected into a well to facilitate
production of oil or gas, or water
derived in association with oil or gas
production and disposed of in a well, if
the well-used either to facilitate
production or for disposal purposes is
approved by authority of the State in
which the well is located, and if such
State determines that such injection or
disposal will not result in the
degradation of ground or surface water
resources.”
Clean Water Act
The term “pollutant” does not include:
Emergency Planning and
Right to Know Act
42 U.S.C. § 11001
National Environmental Policy Act
Section 390 of the Energy Policy Act of 2005:
Certain Oil and Gas Drilling Activities “subject to a
rebuttable presumption that the use of a categorical
exclusion under the National Environmental Policy Act of
1969 would apply if the activity is conducted pursuant to the
Mineral Leasing for the purpose of exploration or
development of oil or gas…”
No Environmental Impact Assessment
RCRA
Subtitle C:
Hazardous Wastes
42 U.S.C § 6921:“Not later
than six months after
completion and submission of
the study…the Administrator
shall, after public hearings and
opportunity for comment,
determine either to
promulgate regulations…or
that such regulations are
unwarranted.”
1988: EPA Finds
Regulation Under
Subtitle C is
Unwarranted.
CERCLA
42 U.S.C. § 9601(10)(1);
“Federally Permitted Releases”
“any injection of fluids or other materials
authorized under applicable State law (i)
for the purpose of stimulating or treating
wells for the production of crude oil,
natural gas, or water, (ii) for the purpose of
secondary, tertiary, or other enhanced
recovery of crude oil or natural gas, or (iii)
which are brought to the surface in
conjunction with the production of crude oil
or natural gas and which are reinjected.”
“FRAC” Act of 2009
“A bill to amend the Safe Drinking Water Act
to repeal a certain exemption for hydraulic
fracturing, and for other purposes.”
• Requires disclosure of chemical composition
of “Frac Fluids”
EPA Takes
Action
September 9, 2009: EPA Issues
Voluntary Information Requests
to Nine Hydraulic Fracturing
Companies Requesting Detailed
Information About the Chemical
Composition of Fracking Fluids
Halliburton Subpoena
 Eight of the Nine Companies Respond to the
Voluntary Request. Halliburton resists.
 November 9, 2009; EPA subpoenas Halliburton
concerning the components of their fracking fluid.
 Halliburton continues to fight request, but makes
list of various chemicals available on its website.
Among these chemicals are materials found in
cleaners, car wax, and paint thinner.
“Additives
used in
hydraulic
fracturing
fluids include a
number of
compounds
found in
common
consumer
products…”
WHAT NEXT???
Our hydraulic fracturing lawyers are offering free lawsuit
consultations to anyone whose health and property has been
damaged by fracking. We urge you to contact us today to
protect your legal rights.
THE INFORMED PROPERTY OWNER