By: Ashley Gardana

As stated earlier on this blog, hydraulic fracturing or “fracking” is a process used to extract underground resources including oil, natural gas, and geothermal energy. The process begins with building the infrastructure, including well construction. These wells are drilled either in the vertical or horizontal direction, with the former being drilled hundreds to thousands of feet below the land surface and the latter extending 1000 to 6000 feet away from the well. The drill passes through aquifers and dozens of geological layers until it reaches the shale layer. Water and chemical additives are then pumped into the geologic formation at high pressures to open or enlarge fracture that are akin to paper-thin cracks throughout the shale. These small fractures free the trapped gas, which then flows up into the surface, through the casing pipe. The fluid either returns with the natural gas and becomes flowback, or remains in the shale. The flowback is then disposed into surface water or underground injection.

The Obama Administration maintains that “natural gas plays a key role in our nation’s clean energy future” and supports responsible development of America’s shale gas resources.  However, the hydraulic fracturing process carries with it known concerns including stress on surface and ground water supplies, contamination of underground sources of drinking water, adverse impacts from discharges to surface waters from flowback disposal, and air pollution from the release of volatile organic compounds (VOCs), hazardous air pollutants and greenhouse gases. The unknown effects are, of course, yet to be seen. Recently, the U.S. Geological Survey research team has linked hydraulic fracturing with the increase in earthquakes since 2001.

Due to the wide range of known and unknown effects, some believe there is a need for stronger regulations surrounding the hydraulic fracturing process. Currently, the Environmental Protection Agency (EPA) loosely monitors the hydraulic fracturing through various existing legislation.  The Safe Drinking Water Act (SDWA) and Energy Policy Act regulate undergoing injection to protect drinking water. In 2005 Congress created exemptions for hydraulic fracturing retaining authority only when the company used diesel.

Another loophole in regulation exists around the shale wastewater and flowback fluid compound after it returns from the shale. As the number of shale gas wells increases in the U.S, so does the volume of wastewater.  This fluid contains high levels of total dissolved solids, fracturing fluid additives, metals, and naturally occurring radioactive materials. While some of the wastewater is reused or re-injected, a significant amount still requires disposal. Presently, no comprehensive set of national standards exists for the disposal of wastewater discharged from natural gas extraction activities. As a result, some shale gas wastewater is transported to treatment plants or private centralized waste treatment facilities, many of which are not properly equipped to treat this type of wastewater.

The environmental community and industry are at odds when determining the impacts of hydraulic fracturing and whether the need exists for additional regulations. The National Resources Defense Council maintains that the Obama Administration and Congress should remove existing loopholes that exempt hydraulic fracturing from the SDWA and ensure that oil and gas wells are subject to rigorous construction, operation and maintenance standards under the UIC program. This will not only provide uniform federal standards to protect groundwater, but it will also allow EPA to coordinate regulation of fracking and geologic sequestration under the same program and help avoid potential conflicts between these two activities. Numerous other organizations including the Sierra Club and Earthjustice also oppose the practice, contributing an increase in reports of poisoned drinking water, polluted air, and animal death to “Fraccidents.” (

Industry, on the other hand, holds that robust state and federal regulations for hydraulic fracturing already exist. They claim that a “comprehensive set of state, local, and federal laws address nearly every aspect of exploration and production. These include well design, water use, waste management and disposal, air emissions, surface impacts, health, safety, location, spacing, and operation.” (

This conflict takes center stage in Congress where bills have been introduced in both the house and the Senate to address this process. The FRAC Act (S. 587), introduced by Senator Robert Casey (D-PA) was introduced in the Senate and House, respectively. Both propose amending the SDWA. The proposed amendment would repeal the aforementioned exemption for hydraulic fracturing to the UIC program.  The amendment would require state underground injection programs to disclose the chemicals intended for use in underground injections to the state and the public. The bill would also require the operator of the hydraulic fracturing site, when a medical emergency exists and the chemical formula is necessary for medical treatment, to disclose the formula regardless of any confidentiality agreement.

On the other side of the aisle, Senator James Inhofe (R-OK) and Representative Louis Gohmert (R-TX), have both introduced bills that would place authority of regulating hydraulic fracturing on federal land solely with the States.

The Obama Administration is aiming to update the status quo of hydraulic fracturing oversight through the rulemaking process. In July, 2011 the agency proposed a suite of regulations that would reduce harmful air pollutions by creating four air regulations for the oil and natural gas industry: a new source performance standard for VOCs; a new source performance standard for sulfur dioxide; an air toxics standard for oil and natural gas production; and an air toxics standard for natural gas transmission and storage.

The EPA maintains that the cost-effective rule will cut smog-forming VOC emissions by nearly one-fourth, reduce cancer risks from emissions, and yield significant reductions in methane and greenhouse gases. EPA’s Regulatory Impact Analysis for the rule estimates the values of the climate benefits to reach $1.6 billion annually by 2015, including climate-related benefits such as avoided health impacts, crop damage, and damage to coastal properties.

Conversely, the American Petroleum Institute’s (API) Estimate of Impacts of EPA Proposals to Reduce Air Emissions from Hydraulic Fracturing Operations report found that the proposed rule will cause a significant slowdown in unconventional resource development, resulting in less reserve additions, less production, lower royalties to the Federal government and private landowners, and delays in production. However, it should be noted that API is the largest U.S. trade association for the oil and natural gas industry.

On April 17, 2012, the EPA Administrator Lisa Jackson signed 40 CFR part 63 – Oil and Natural Gas Sector: New Source Performance Standards and National Emission Standards for Hazardous Air Pollutants.  Within the rule, the EPA revised the new source performance standards for VOCs from leaking components at onshore natural gas processing plants and new source performance standards for sulfur dioxide emissions from natural gas processing plants.  It includes the regulations of VOCs from gas well, compressors, controllers and storage vessels.

While these rules address the air quality impacts associated with hydraulic fracturing activities, they do not address the other loopholes surrounding hydraulic fracturing with diesel fuels or the safe disposal of wastewater. The EPA remains committed to improving the status quo and has committed to developing UIC guidance for permitting hydraulic fracturing activities. However, if the proposed amendments by Senator Inhofe and Representative Gohmert, it will be the State’s duty to confront these loopholes.