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There are many exemptions for hydraulic fracturing under United States federal law: the oil and gas industries are exempt or excluded from nearly half of the major federal environmental laws. These laws range from protecting clean water and air, to preventing toxic substances and chemicals in the environment. Exemptions or exclusions range from the following Acts: Clean Air Act, Clean Water Act, Safe Drinking Water Act, National Environmental Policy Act, Resource Conservation and Recovery Act, the Emergency Planning and Community Right to Know Act, and the Comprehensive Environmental Response Compensation Liabilities Act.

Hydrauling fracturing: background

Hydraulic fracturing, also known as fracking, is a process used to extract oil and natural gas. The process to extract oil and natural gas begins with thousands of gallons of water, mixed with a slurry of chemicals, some of which are undisclosed. This liquid mixture is then forced into well casings under high pressure, and then is horizontally injected into bedrock to create cracks or fissures. The forced change in geologic structure allows gas molecules to escape, therefore creating the industry to harvest natural gas.

Hydraulic fracturing has changed the energy scene as a result of many technological advances; one of which includes the ability to drill horizontally in the earth's crust. Fracking uses both historically-known horizontal drilling, along with vertical drilling -both techniques are used in tandem to extract oil and gas. This process can occur at depths over 8,000 feet deep.

The primary product of hydraulic fracturing is methane gas.

Clean Air Act

The Clean Air Act (United States) was passed in 1970 to insure that the general public was protected from harmful levels of six criteria pollutants, established by the EPA. The six regulated criteria pollutants include: Particulate Matter, Lead, Ozone, NO_x, Carbon Monoxide, and SO_x. All pollutant levels are calculated by associated health risks that would harm the most sensitive subgroup of people, which are considered to be inner city children. Any major pollution sources must abide by the National Emission Standards for Hazardous Air Pollutants (NESHAPS), by using only the Maximum Achievable Control Technology for their industry.

In 1977 and 1990, congress amended this act to create provisions related to the Prevention of Significant Deterioration (PSD) as well as create programs related to controlling and preventing acid rain, respectively. However, under the Clean Air Act, major sources of Hazardous Air Pollutants are required to obtain a Title V permit to ensure minimum standards are in place under the Code of Federal Regulation, while area sources are not. Most oil and gas production sites are not required to obtain a Title V permit because their emissions threshold is just slightly below the categorical statutory definition. In addition to not having to obtain a Title V permit, the oil and gas exploration and production wells are exempt from the aggregation rule within the definition of "major source" as defined under the Clean Air Act, essentially to be unregulated under this federal statute.

Clean Water Act

The Clean Water Act is a result of the 1972 amendments to the Federal Water Pollution Control Act, which was passed to ultimately eliminate pollution discharge into any body of water in the United States. One of the major mechanisms for implementing this statute was to create a permitting process for all discharging methods that involved dumping pollutants into streams, lakes, rivers, wetlands, or creeks. Within this law, however, storm water runoff from oil and gas industries are exempt under the Clean Water Act, and as part of the 2005 Energy Policy Act, also known as the "Halliburton's Loophole", exempts waste water from gas and oil construction activities which includes "oil and gas exploration, production, process, or treatment operations and transmission facilities" as part of the definition of construction activities.

Safe Drinking Water Act

In 1974, The Safe Drinking Water Act (SDWA) was passed to protect the quality of public U.S. Drinking water and aims to protect above and below ground water sources that are or could potentially be used for human consumption. Section C of the SDWA requires the EPA to establish minimum regulations for State Underground Injection Control Programs. Under part C, Section 1421 in the SWDA underground injection is "the subsurface emplacement of fluids by well injection." This definition should allow for the EPA to regulate hydraulic fracturing and was upheld by the 1997 U.S. Court of Appeals 11th circuit which ruled that "hydraulic fracturing activities constitute underground injection according to Section C of the SDWA This required the EPA and state underground injection control programs to regulate hydraulic fracturing under the SDWA. Shortly after this the EPA conducted a study of impacts of hydraulic fracturing and published its findings in 2004. Under section 7.4, they "concluded that the injection of hydraulic fracturing fluids into coalbed methane wells poses little or no threat to USDWs and does not justify additional study at this time" which was translated into two amendments for SDWA with the passage of the 2005 Energy Policy Act. The Amendments added two exclusions to the definition of underground injection: ""(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. This allows for any underground injection related to hydraulic fracturing as long as its not diesel fuel even if it jeopardizes potential drinknig water sources.

National Environmental Policy Act

Under the National Environmental Policy Act (NEPA) of 1969, in order to protect the environment, regulations require federal agencies to conduct an environmental assessment or environmental impact statement if it was any major federal action that would significantly alter the human environment. The Energy Policy act of 2005 created a rebuttable presumption that certain oil and gas related activities authorized by the U.S. Department of the Interior in managing public lands, and the U.S. Department of Agriculture in managing National Forest System Lands, are subject to a "categorical exclusion" under NEPA. Activities under the Mineral Leasing Act and exploration and extraction of natural gas are exempt from NEPA because of a blanket finding of no significant impact unless the public can prove otherwise.

Resource Conservation and Recovery Act

The Resource Conservation and Recovery Act (RCRA) of 1976 was passed "to protect human health and the environment from the potential hazards of waste disposal, to conserve energy and natural resources, to reduce the amount of waste generated, and to ensure that wastes are managed in an environmentally sound manner. Subtitle C of RCRA gives the EPA the authority to regulate the generation, transport, treatment, storage and disposal of all deemed hazardous waste. Drilling fluids, produced waters, and other wastes associated with oil and natural gas exploration, development, or production (oil field wastes) were explicitly exempted from listing as hazardous waste until EPA conducted a Regulatory Determination as to whether such wastes warranted regulation under Subtitle C, but no sooner than October 21, 1982. Prior to the completion of the EPA’s regulatory determination congress enacted the Solid Waste Disposal Act in 1980 which exempted oil field wastes under section C of RCRA unless the EPA could prove the waste was hazardous. In 1988 the EPA ultimately agreed with congress and oil field waste was unable to be regulated by the EPA under RCRA

Comprehensive Environmental Response, Compensation, and Liability Act (Superfund)

The Comprehensive Environmental Response, Compensation, and Liability Act, also known as Superfund was enacted in 1980 to hold all polluters and potentially responsible parties liable for toxic or hazardous substances dumped into the environment. However, CERCLA has exemptions from liability requirements if the toxic substances are found in crude oil or petroleum, which are used in hydraulic fracturing. Included in the definition of 'Potentially Responsible Parties', the oil and gas industry is exempt from this definition. Under Section 9601(14) of CERCLA, hazardous waste definitions congruent with RCRA and SWDA exclude petroleum, including crude oil, natural gas liquids, and any mixture containing natural gas. If any spills that would be otherwise classified under the Superfund contain any gas mixture, are exempt from the cleanup process associated with this federal statute.

References

Category:Hydraulic fracturing Category:United States federal environmental legislation

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