It’s not my Fracking Problem! Regulations, Liability, and the Process of Hydraulic Fracturing Katie Heath November 30, 2010

Hydraulic Fracturing

Underground Injection Wells Under the Safe Drinking Water Act

Legal Environmental Assistance Foundation v. EPA(1997) In 1994, LEAF petitioned the EPA to withdraw its approval of the Alabama Underground Injection Control (UIC) plan, as it failed to include hydraulic fracturing. In 1994, LEAF petitioned the EPA to withdraw its approval of the Alabama Underground Injection Control (UIC) plan, as it failed to include hydraulic fracturing. EPA denied the petition, stating that the SDWA was concerned with injection of fluids for placement underground, and fracking was not covered under the statute. EPA denied the petition, stating that the SDWA was concerned with injection of fluids for placement underground, and fracking was not covered under the statute. LEAF petitioned the 11 th Circuit for Review, asserting that denial was inconsistent with the SDWA LEAF petitioned the 11 th Circuit for Review, asserting that denial was inconsistent with the SDWA

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

2004 EPA Report “Based on the information collected and reviewed, EPA has concluded that the injection of hydraulic fracturing fluids into CBM wells poses little or no threat to USDWs and does not justify additional study at this time.”

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

Energy Policy Act of 2005 “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.

Clean Water Act 33 U.S.C. § 1362: The term “pollutant” does not include: “water, gas, or other material which is injected into a well to facilitate production of oil or gas, or water derived in association with oil or gas production and disposed of in a well, if the well-used either to facilitate production or for disposal purposes is approved by authority of the State in which the well is located, and if such State determines that such injection or disposal will not result in the degradation of ground or surface water resources.”

Emergency Planning and Right to Know Act 42 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

RCRA Subtitle C: Hazardous Wastes 42 U.S.C § 6921:“Not later than six months after completion and submission of the study…the Administrator shall, after public hearings and opportunity for comment, determine either to than six months after completion and submission of the study…the Administrator shall, after public hearings and opportunity for comment, determine either to promulgate regulations…or that such regulations are unwarranted.” 1988: EPA Finds Regulation Under Subtitle C is Unwarranted.

CERCLA CERCLA 42 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 2009 “A bill to amend the Safe Drinking Water Act to repeal a certain exemption for hydraulic fracturing, and for other purposes.” Requires disclosure of chemical composition of “Frac Fluids” Requires disclosure of chemical composition of “Frac Fluids”

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

Halliburton Subpoena Eight of the Nine Companies Respond to the Voluntary Request. Halliburton resists. Eight of the Nine Companies Respond to the Voluntary Request. Halliburton resists. November 9, 2009; EPA subpoenas Halliburton concerning the components of their fracking fluid. November 9, 2009; EPA subpoenas Halliburton concerning the components of their fracking fluid. Halliburton continues to fight request, but makes list of various chemicals available on its website. Among these chemicals are materials found in cleaners, car wax, and paint thinner. Halliburton continues to fight request, but makes list of various chemicals available on its website. Among these chemicals are materials found in cleaners, car wax, and paint thinner.

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

WHAT NEXT??? Our hydraulic fracturing lawyers are offering free lawsuit consultations to anyone whose health and property has been damaged by fracking. We urge you to contact us today to protect your legal rights.

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