It’s not my Fracking It’s not my Fracking Problem! Problem!

Regulations, Liability, and Regulations, Liability, and the Process of Hydraulic the Process of Hydraulic

FracturingFracturingKatie HeathKatie Heath

November 30, 2010November 30, 2010

Hydraulic FracturingHydraulic Fracturing

Underground Injection Wells Under the Safe Drinking Water Act

Legal Environmental Assistance Legal Environmental Assistance Foundation v. EPA(1997)Foundation v. EPA(1997)

• In 1994, LEAF petitioned the EPA to withdraw its In 1994, LEAF petitioned the EPA to withdraw its approval of the Alabama Underground Injection approval of the Alabama Underground Injection Control (UIC) plan, as it failed to include hydraulic Control (UIC) plan, as it failed to include hydraulic fracturing.fracturing.

• EPA denied the petition, stating that the SDWA EPA denied the petition, stating that the SDWA was concerned with injection of fluids for was concerned with injection of fluids for placement underground, and fracking was not placement underground, and fracking was not covered under the statute.covered under the statute.

• LEAF petitioned the 11LEAF petitioned the 11thth Circuit for Review, Circuit for Review, asserting that denial was inconsistent with the asserting that denial was inconsistent with the SDWASDWA

LEAF v. EPALEAF v. EPA

““EPA's argument that EPA's argument that a methane gas a methane gas production well is not production well is not an "injection well" an "injection well" because it is used because it is used primarily for gas primarily for gas extraction is extraction is spurious…In view of spurious…In view of clear statutory clear statutory language requiring the language requiring the regulation of regulation of all such all such activities, they must activities, they must be regulated, be regulated, regardless of the other regardless of the other uses of the well in uses of the well in which these activities which these activities occur.”occur.”

Conasauga Shale Formation, Alabama

2004 EPA Report2004 EPA Report

““Based on the information collected and Based on the information collected and reviewed, EPA has concluded that the reviewed, EPA has concluded that the injection of hydraulic fracturing fluids injection of hydraulic fracturing fluids into CBM wells poses little or no threat to into CBM wells poses little or no threat to USDWs and does not justify additional USDWs and does not justify additional study at this time.”study at this time.”

Weston Weston Wilson LetterWilson Letter““EPA's conclusions are EPA's conclusions are unsupportable. EPA has unsupportable. EPA has conducted limited conducted limited research reaching the research reaching the unsupported conclusion unsupported conclusion that this industry that this industry practice needs no further practice needs no further study at this time. EPA study at this time. EPA decisions were decisions were supported by a Peer supported by a Peer Review Panel; however Review Panel; however five of the seven five of the seven members of this panel members of this panel appear to have conflicts-appear to have conflicts-of-interest and may of-interest and may benefit from EPA's benefit from EPA's decision not to conduct decision not to conduct further investigation or further investigation or impose regulatory impose regulatory conditions.”conditions.”

Energy Policy Act of Energy Policy Act of 20052005

“Halliburton Loophole”“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.

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33 U.S.C. § 1362:33 U.S.C. § 1362:

The term “pollutant” does not include:The term “pollutant” does not include:

““water, gas, or other material which is water, gas, or other material which is injected into a well to facilitate injected into a well to facilitate production of oil or gas, or water production of oil or gas, or water derived in association with oil or gas derived in association with oil or gas production and disposed of in a well, if production and disposed of in a well, if the well-used either to facilitate the well-used either to facilitate production or for disposal purposes is production or for disposal purposes is approved by authority of the State in approved by authority of the State in which the well is located, and if such which the well is located, and if such State determines that such injection State determines that such injection or disposal will not result in the or disposal will not result in the degradation of ground or surface degradation of ground or surface water resources.”water resources.”

Emergency Planning Emergency Planning and Right to Know Actand Right to Know Act42 U.S.C. § 1100142 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

RCRARCRASubtitle C:Subtitle C:

Hazardous WastesHazardous Wastes

42 U.S.C § 6921:42 U.S.C § 6921:“Not later“Not later than six months after than six months after completion and submission completion and submission of the study…the of the study…the Administrator shall, after Administrator shall, after public hearings and public hearings and opportunity for comment, opportunity for comment, determine either to determine either to promulgate regulations…or promulgate regulations…or that such regulations are that such regulations are unwarranted.”unwarranted.”

1988: EPA Finds 1988: EPA Finds Regulation Under Regulation Under Subtitle C is Subtitle C is Unwarranted.Unwarranted.

CERCLACERCLA42 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 2009FRAC” Act of 2009

““A bill to amend the Safe Drinking Water A bill to amend the Safe Drinking Water Act to repeal a certain exemption for Act to repeal a certain exemption for

hydraulic fracturing, and for other hydraulic fracturing, and for other purposes.”purposes.”

• Requires disclosure of chemical Requires disclosure of chemical composition of “Frac Fluids”composition of “Frac Fluids”

EPA Takes EPA Takes ActionAction

September 9, 2009September 9, 2009: EPA : EPA Issues Voluntary Information Issues Voluntary Information Requests to Nine Hydraulic Requests to Nine Hydraulic Fracturing Companies Fracturing Companies Requesting Detailed Requesting Detailed Information About the Information About the Chemical Composition of Chemical Composition of Fracking FluidsFracking Fluids

Halliburton SubpoenaHalliburton Subpoena

Eight of the Nine Companies Respond to the Eight of the Nine Companies Respond to the Voluntary Request. Halliburton resists.Voluntary Request. Halliburton resists.

November 9, 2009; EPA subpoenas November 9, 2009; EPA subpoenas Halliburton concerning the components of Halliburton concerning the components of their fracking fluid.their fracking fluid.

Halliburton continues to fight request, but Halliburton continues to fight request, but makes list of various chemicals available on makes list of various chemicals available on its website. Among these chemicals are its website. Among these chemicals are materials found in cleaners, car wax, and materials found in cleaners, car wax, and paint thinner.paint thinner.

“Additives used in hydraulic fracturing fluids include a number of compounds found in common consumer products…”

WHAT NEXT???WHAT NEXT???

Our hydraulic fracturing lawyers are offering free Our hydraulic fracturing lawyers are offering free lawsuit consultations to anyone whose health and lawsuit consultations to anyone whose health and property has been damaged by fracking. We urge property has been damaged by fracking. We urge

you to contact us today to protect your legal rights.you to contact us today to protect your legal rights.

THE INFORMED PROPERTY OWNER