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Know the West

BLM’s new fracking rules strike middle ground

But they're unlikely to resolve today's fierce skirmishes over oil and gas development.


After four years of study and 1.5 million public comments, the U.S. Department of Interior on March 20 unveiled new rules governing hydraulic fracturing of oil and natural gas resources overseen by the Bureau of Land Management. While the first official draft was fairly protective and a second was significantly weakened, this final version appears to be squarely between the two – predictably falling short of what many environmental groups hoped for, and going beyond what industry groups seem willing to live with.

One thing is certain: The rules are much stronger than what was in place before on federal lands, which account for 11 percent of the nation's natural gas production and five percent of its oil production. “Current federal well-drilling regulations are more than 30 years old and they simply have not kept pace with the technical complexities of today’s hydraulic fracturing operations,” Interior Secretary Sally Jewell said in a prepared statement. Indeed, recent technological advances in drilling and fracking – which involves firing a slurry of water, sand and chemicals underground to release trapped oil and gas – have unlocked formerly unreachable formations and initiated unprecedented flurries of drilling activity from Pennsylvania to North Dakota to the Intermountain West. The uptick in activity has spurred a parallel flurry of public concern over possible air and water contamination. “This updated and strengthened rule,” Jewell continued, “provides a framework of safeguards and disclosure protocols” to help ensure that the public has “confidence that transparent and effective safety and environmental protections are in place.”

Among the significant changes in the final rules are:

  • Companies will not be allowed to use a test of a single well’s structural integrity to demonstrate the same for a group of similar wells, as they would have been under the last draft. Now, companies must submit proof of each well’s integrity before fracking is allowed. That’s important because most everyone acknowledges that faulty well casings and cementing jobs – linked to everything from contaminated surface and ground water to exploding houses – are among the most common causes of problems.
  • Companies won’t be able to use waste pits – even lined ones – on drilling pads except under limited exceptions, forcing them to dump produced water and other nasty stuff into above ground tanks that are either sealed or covered with netting to keep critters out. While this restriction doesn't appear to address the ultimate disposal of that waste – which often occurs in centralized evaporation facilities or injection wells – the requirement is significant. Those temporary pits scattered across the landscape have been “one of the big contamination risks,” says Oil and Gas Accountability Project executive director Bruce Baizel. Now, “You’re going to have far fewer leaks.”
    Drilling waste reserve pit
    Wellpad pits like this one will no longer be allowed on federal land, under BLM's final fracking rule. Image courtesy Sarah Gilman.

The major sticking points for many environmental groups – most of which are still analyzing the 395-page rule document – center around its requirements for the public disclosure of fracking fluid’s chemical constituents. Not only are companies not required to disclose them until 30 days after fracking, but they are allowed to do so through the industry-backed website FracFocus, run by the nonprofit Ground Water Protection Council. A federal panel and a Harvard study have both found the database to be significantly lacking. According to FuelFix, though the feds are working with the Council to alleviate concerns about data accessibility and accountability, relying on it “will at least temporarily violate an executive order on government transparency,” because the information it contains isn’t machine-readable. Plus, some groups say they’ve noticed significant discrepancies between what companies report on state permits and what they report on the website.

Companies also still get to invoke trade secret exemptions essentially on their own authority, rather than the agency making the call, says Amy Mall of the Natural Resources Defense Council, and the rules lay groundwork for states to apply for exceptions if their own “meet the same objectives” – wiggle language Mall finds alarmingly vague. Nor does the rule cover whether some places should be kept off-limits altogether.

The BLM estimates the new rules, which come into effect in 90 days, will add about $11,400 to the cost of drilling each well – approximately 0.13 to 0.21 percent of the total. The Western Energy Alliance, an industry trade group, puts it at more like $97,000, and joined the Independent Petroleum Association of America, in filing a lawsuit the same day the rules were released.

But if anything, the rules seem mostly to institutionalize, at a federal level, practices that the most responsible companies and the most strict state regulatory agencies already use. “Basically, you’ve got the whiners that don’t want to come into this century," argues Baizel, who has worked on oil and gas issues for OGAP since 2002. And if companies had been more open to these sorts of basics a decade ago, then today's fierce skirmishes over whether local governments have to the authority to regulate or even ban fracking may never have happened. “But now, with so much lack of trust because of peoples’ experience from the last 10 years,” he says, “these rules won’t solve any of the political questions.”

Correction: An earlier version of this story stated Amy Mall's last name as spelled Moll. Sarah Gilman is a contributing editor at High Country News.