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Sarah Gilman | May 08, 2012 12:17 PM

If you want evidence that it’s an election year, look no further than this press release from the Department of the Interior. It announces the department's first-ever regulations (pdf) for certain federal lands covering several aspects of that ever controversial practice, hydraulic fracturing, wherein millions of gallons of water, plus measures of sand and chemicals, are fired into a wellbore under pressure to break up oil and gas-bearing geological formations thousands of feet below the ground and release their bounty to the surface. Anticline gas rig

The proposed rule, released May 4, applies mostly in the West, covering mineral rights overseen by the Bureau of Land Management -- which include those underlying the agency's own vast holdings as well as those beneath Indian lands, accounting for about 11 percent of domestic natural gas supply and 5 percent of domestic oil supply. It  requires companies to publicly disclose the chemical composition of the fracking fluids (including specific amounts of each constituent) they use in the drilling process. The rule also requires them to take several steps to ensure the integrity of each well's construction so that chemicals and hydrocarbons moving through it won’t leak out. If you’ve followed the media coverage, including ours, over the past couple of years, then you know that this latest regulatory landmark was primarily driven by calls to reduce drilling risks to and better ensure protection of ground and surface water supplies for drinking, agriculture, wildlife and more. But the DOI’s statement seldom mentions the environment or public health. In fact, the release goes on and on about the economic importance of oil and gas, touts the administration's record in ramping up production, and describes the new rule as a “common-sense measure” that

supports the continued development of America’s abundant oil and gas resources on federal and Indian lands by taking steps to ensure public confidence in well stimulation techniques and technologies, including hydraulic fracturing.

Are we meant to believe that biggest issue here is fracking’s public image? As if its safety were a foregone conclusion that the rule will help demonstrate? Apparently the administration is worried that the American public is taking to heart specious accusations that its regulatory frameworks are responsible for escalating gasoline prices. (Actually, of course, they are mostly determined by global market forces). I sincerely hope that the American public isn’t that stupid, and I have to admit I’m disappointed (though not surprised) that the feds choose to spin these rules as if we are.

Tellingly, along these same lines, the feds capitulated to industry on one major point, shifting their original proposal to require chemical disclosure 30 days before a well is drilled to 30 days after a well is drilled. In the lead-up to that change, E&E Daily's EnergyWire (sub required) reports, the administration met with industry groups four times, and environmental groups only once:

When Anadarko Petroleum Corp. Chairman James Hackett showed up in early April, he got a face-to-face meeting with Cass Sunstein, administrator of the Office of Information and Regulatory Affairs, otherwise known as the "regulatory czar." Anadarko was arguing that the requirement to report chemicals ahead of the fracture treatment was "onerous," according to documents provided to officials. Those prereporting requirements were removed from the version rolled out Friday.

Industry trade groups also presented letters against the rule from several Indian tribes (sub required), who fear it will drive away valuable opportunities for economic development (for background on tribes' complex relationship with energy development, see our cover stories, "The Other Bakken Boom," and "The Ute Paradox").

Environmental groups and some lawmakers, meanwhile, worry that the delayed disclosure misses the point. "Looking for fracking chemicals in our drinking water shouldn't be like a game of 20 questions," Rep. Ed Markey (D-Mass.), the ranking member of the House Natural Resources Committee, told Greenwire (sub required). "Drilling companies should be required to disclose the chemicals they use at all times, but especially before they start drilling, so communities can be on the lookout for any pollution in their water or environment."

Still, environmental and conservation groups were cautiously positive in their reception of the rule, almost universally dubbing it "an important first step." "Sportsmen are pleased that our federal decision makers recognize the need to increase transparency during all phases of energy planning and development,” Ed Arnett, director of energy programs for the Theodore Roosevelt Conservation Partnership, said in a statement released by Sportsmen for Responsible Energy Development.

And, as seems to be the case with most coverage of fracking, buried in all the kerfuffle (perhaps an intentional bit of political subterfuge?) over the chemical composition and potential threat of the fracking fluids is the actual meat and meaning of the new rule, which seems to call for some pretty important new measures, including:

-All well-stimulation procedures would be subject to prior BLM approval.

-Companies would be required to submit detailed reports on the geology they plan to develop, where well stimulation will occur, and the estimated length and height of the fractures created, so BLM can ensure drilling fluids and hydrocarbons are adequately contained. They would also have to submit detailed descriptions of well stimulation engineering design and the range of pressures they anticipate subjecting the well to.

-Companies would have to test the integrity of the well casing and surrounding cement and submit detailed records of the results to the BLM before fracking could occur so the agency can ensure surrounding water supplies won't be affected.

-Companies would have to report exactly where the well bore is perforated or open, and disclose the water source from which they plan to draw for fracking operations.

-Companies will have to estimate the amount of fluid they'll be pulling back up from the well and submit a detailed plan for its disposal.

-Companies would be required to store all produced fluids in either closed tanks or lined pit, rather than unlined pits.

Senior staff attorney for Earthworks' Oil and Gas Accountability Project Bruce Baizel agreed in a statement that such rules really are common-sense measures: "National public lands need national standards. ... These rules create consistent minimum requirements for chemical disclosure, wellbore integrity, and waste disposal, among other aspects of the process," but, he noted, it falls short on allowing storage of fluids in open pits, as well as on the disclosure rule. Other groups worry that variances from various requirements might be too easy to get.

Whether the BLM has the staff to enforce the rules effectively is another open question, reports ProPublica:

In New Mexico, for example, the BLM oversees more than 30,000 active wells ­– with only 69 inspectors. “However strong the rules are, enforcement is only as good as staff on the ground,” said attorney Erik Schlenker-Goodrich of the Western Environmental Law Center.

But perhaps what’s most shocking about many of the rule’s provisions, rather than their shortcomings, is that the government didn’t have them on the books until now, despite decades of full-speed-ahead development. Interior drafted its first set of fracking rules in 1982; they haven't been updated since 1988.

Sarah Gilman is HCN's associate editor.

Photo of natural gas drilling rig on the Pinedale Anticline in Wyoming taken by Wendy Shattil/Bob Rozinksi - International League of Conservation Photographers, courtesy of Flickr user Wyoming: Upper Green River Valley.

 

 

Tony Bynum
Tony Bynum
May 09, 2012 04:37 PM
Than you Sara, I always enjoy your writing . . . I guess some rules are better than no rules. I think a larger issue was missed. First, the jury is NOT OUT yet on fracking, so while some new rules for disclosure and management help, we still need to know more about the processes and if, when and under which conditions it's safe. But more to your point.

It's like this, 4 people all have straws in the same jug of milk. One of us is on a federal straw, the three others are on private straws. The guys on the private land straws spit down the straw after every pull. The other guy, on the single federal straw follows the rules and when they're all done they put a cap on the jug and place it back in the refrigerator. The next morning, my kids wake up hungry. Their mom (I used mom here because unbeknownst to her the milk is polluted) grabs the jug and pours it out on the kid's cheerios. . . If everyone is not playing by the same rules, it wont matter what the feds come up with, we all drink from the same jug of milk!

Tony
Sarah Gilman
Sarah Gilman Subscriber
May 10, 2012 09:21 AM
Thanks as always for your thoughtful responses, Tony -- I wonder if there is any legal mechanism for standardizing rules across federal, tribal, state and private lands? There are some environmental laws that (sort of) work like that for other things. For the Clean Water Act, for example, I believe the federal rules are the standard and states must adopt policies that are at least as stringent, and are allowed to be more stringent in their requirements. Trouble is, getting something like that will probably take an act of Congress -- and lord knows there's no political will in the current session to do something like that. I'm not sure the administration can do it on its own...

Sarah Gilman
Associate Editor
High Country News
Tony Bynum
Tony Bynum
May 10, 2012 09:36 AM
Sara, you are correct. There is little political will at this point to do much of anything. . . That said, switching gears a bit, in the very least, if we could get an EIS or a state equivalent for the development in some of these area, that would give people a chance to talk about the issues, identify potential impacts to the social, political, economic and environmental systems people would be able to plan for their own future. As it now stands, it's unfettered development, with zero assessment of the cumulative impacts. The sad irony in all of this is that there are laws now on the books to deal with these issues, they just are not being used for a host of reasons. The results are exactly what NEPA was designed to avoid! Where are the conservation and environmental heavy weights of yester-year? Where's Bobby Kennedy's and why don't we have any Edward Abby's, Aldo Leopold's, David Brower's or Theodore Roosevelt's of the modern times? Few people are thinking more holistically. One of the most alarming issues associated with the "boom" are all the homeless children and shortage of schools in the Williston area. It's a crime . . . Thank you for your fantastic coverage of the issues, keep up the great work Sarah!
Nick Privett
Nick Privett
May 15, 2012 02:45 PM
The problem the operating companies have in disclosing the chemicals used in frac'ing would seem to be because the treatment companies that provided these fluids, sand, pumps, etc. believes their special "blend" of additives will do better than the other guys blend. Many of these service companies have spent millions developing these blends & have patented their formulas. It seems patent law is pretty specific on what it allows, etc. but, hay, I'm no lawyer :0)

On the wellbore requirements. ALL oil & gas states have these same regulations on their books now & have for years. Problem is; neither the State or the Feds have the funding to put sufficient representatives on all the wells @ the specific time they need to be there to witness the specific process being regulated. They didn't have the staff before our current HZ boom. They certainly don't now.

MOST ALL operators try to do the best job they can to prevent pollution. Some don't, I must admit. Hence, the need for inspectors.

Finally, do you truly believe that the Fed can do a better job than the State (any State), assuming funding is available?
James Bowen
James Bowen
May 15, 2012 03:17 PM
BLM regulations will affect plenty of private lands in the West that were once owned by the BLM. One st of federal rules for all the nation would beat a hodgepodge of state regulations that will only lead to interminable court cases where pollution caused by fracking from one state migrates to another.
Nick Privett
Nick Privett
May 15, 2012 03:37 PM
Well, if that's how it has to go down, I hope the Feds will "use" what the State has to offer. It should cut down on @ least some duplicity of all things regulatory.

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