US Government releases new regulations on hydraulic fracturing, that some call “toothless”

Today, after a review and commenting process of over 200 days in which 1.5 million individuals and groups sent in comments, the US Department of Interior (Bureau of Land Management, a.k.a. BLM) released a Rulemaking covering hydraulic fracking operations on public lands in the USA. The promise being made is the new rules

… ensure that wells are properly constructed to protect water supplies, to make certain that the fluids that flow back to the surface as a result of hydraulic fracturing operations are managed in an environmentally responsible way, and to provide public disclosure of the chemicals used in hydraulic fracturing fluids.

(1) Improves public awareness of where hydraulic fracturing has occurred and the existence of other wells or geologic faults or fractures in the area, as well as communicates what chemicals have been used in the fracturing process;

(2) Clarifies and strengthens existing rules related to well construction to ensure integrity and address developments in technology;

(3) Aligns requirements with state and tribal authorities with regard to water zones that require protection;

(4) Provides opportunities to coordinate standards and processes with individual states and tribes to reduce costs, increase efficiencies, and promote the development of more stringent standards by state and tribal governments.

I notice right off this statement doesn’t say much about injected wastewater, thought to be the culprit behind fracking induced earthquakes. However the three items here are a good step forward.

The existing rules, 43 CFR 3162.3-1 and Onshore Oil and Gas Orders 1, 2 and 7, are old – 25 years old. The new rulemaking will supplement those rules.

A guidance document published by the American Petroleum Institute, “Hydraulic Fracturing Operations-Well Construction and Integrity Guidelines, First Edition, October 2009,” was deemed important enough to mention by name. The API is of course the petroleum industry lobbyist group, and one wonders out loud just how much influence they had over the resulting rules.

The rulemaking only covers operations on federal lands. For those states, or tribal areas, with rules on fracking the fracking operator have to abide by both federal and local regulations.

A more detailed description of the new rules are:

Submit detailed information about the proposed operation, including wellbore geology, the location of faults and fractures, the depths of all usable water, estimated volume of fluid to be used, and estimated direction and length of fractures, to the BLM with the APD or a Sundry Notice and Report on Wells (Form 3160-5) as a Notice of Intent (NOI) to hydraulically fracture an existing well;
Design and implement a casing and cementing program that follows best practices and meets performance standards to protect and isolate usable water, defined generally as those waters containing less than 10,000 parts per million of total dissolved solids (TDS);
Monitor cementing operations during well construction;
Take remedial action if there are indications of inadequate cementing, and demonstrate to the BLM that the remedial action was successful;
Perform a successful mechanical integrity test (MIT) prior to the hydraulic fracturing operation;
Monitor annulus pressure during a hydraulic fracturing operation;
Manage recovered fluids in rigid enclosed, covered or netted and screened above-ground storage tanks, with very limited exceptions that must be approved on a case-by-case basis;
Disclose the chemicals used to the BLM and the public, with limited exceptions for material demonstrated through affidavit to be trade secrets;
Provide documentation of all of the above actions to the BLM.

The requirement to disclose fracking chemicals is a big step forward given the secrecy around these chemicals, and the reports of worker poisonings. The disclosure is expected to be conducted through the FracFocus website. I’ll note that the exception for information deemed to be trade secrets, which might be a loophole to allow the fracking operators to avoid disclosure. If the BLM has reason to doubt the need for trade secret protection in some cases, they can require the fracking operator to directly disclose the fracking chemicals to the BLM, and the BLM will determine whether the information is being properly withheld from the public.

FracFocus is a non-governmental website managed by the non-profit Ground-Water Protection Council. The rulemaking document says FracFocus will soon have the ability to export data in machine readable form, to reduce errors in disclosures, and generally improve the site.

The BLM has arranged with FracFocus so that when operators upload disclosures about operations on public land, FracFocus notifies the BLM, then the BLM downloads the data off FracFocus’ website. Hence, the fracking operators won’t notify BLM directly but through a non-governmental intermediary.

FracFocus is currently used by 20 states for fracking disclosures, and Alaska, Florida, Kentucky and Nevada are considering use of the site.

The State’s already have their own fracking regulations, in some cases. The question might arise, why should the federal government meddle in this? That may not be the question why the rulemaking contains this statement:

The BLM recognizes the efforts of some states to regulate hydraulic fracturing and seeks to avoid duplicative regulatory requirements. It is important to recognize that a major impetus for a separate BLM rule is that states are not legally required to meet the stewardship standards that apply to public lands and do not have trust responsibilities for Indian lands under Federal laws. Thus, the rule may expand on or set different standards from those of states that regulate hydraulic fracturing operations. This final rule encourages efficiency in the collection of data and the reporting of information by allowing operators in states that require disclosure on FracFocus to meet both the state and the BLM requirements through a single submission to FracFocus.
A big change is that drilling plans submitted by operators must be specific to that well. In the past they’d allowed plans based on a “type well”, rather an example well of a given type that had previously been drilled. However, subsurface geology varies so much from place to place that the plans have to be specific to each well.

There’s quite a few details in the rulemaking document (PDF, press release), more than is useful to summarize here.

A group of Republican Congressmen have introduced legislation, the Fracturing Regulations are Effective in State Hands (FRESH) Act, to block these regulations. Are state-level fracking regulations effective? I suppose you should ask the Pennsylvanians who can light their tap water on fire. And in North Dakota there have been repeated spills by fracking operators, along with extremely lax enforcement by the state.

In addition to the Republican backlash, two oil industry groups filed a lawsuit. (also: Reuters) The American Petroleum Institute cried about duplicative regulations, that would create a barrier to growth of natural gas and oil production on federal lands.

House Natural Resources Committee Democrat Raúl Grijalva complained the new rules were a “lowest common demoninator” that “Instead of offering clarity and protecting our resources, today’s rule lets industry off the hook.”

The NRDC, through the Switchboard blog

, says that while the new rules are overdue they’re too weak. “The final product, however, falls fall short of what is needed to protect public health and the environment. But, rather than using this opportunity to be a leader in safeguarding these places and the health of the people who depend on them, the agency has released a set of rules that are too friendly to industry and are weaker than the rules already in place in many states.” Some specific issues are:

The federal government can issue sweeping, unprecedented, far-reaching exemptions: The purpose is that if State rules serve the same purpose, the BLM can issue a State-wide exemption, and avoid duplicative rules. The NRDC claims the provision is vague and puts everyone in uncharted waters.
Risky techniques similar to fracking not covered: The BLM’s earlier draft rules would have covered all forms of well stimulation. However, for the final rule they dropped that in favor of covering only hydraulic fracturing. In particular this leaves Acidizing in an unregulated state. Acidizing uses strong acids, like hydrofluoric acid, to essentially melt underground rock. It’s highly toxic and requires extra careful handling, especially if it returns to the surface as flowback (produced water).
Allows fracking operators to hide behind smokescreen of corporate secrecy: As I noted above, the new regulations require disclosure of fracking chemicals. However, the corporations can claim trade secret and not disclose chemicals. Just how big a loophole this is isn’t clear.
Thwarting transparent reporting of information: As I noted above, the fracking operators are to file reports through FracFocus rather than directly with the government. It’s a government responsibility to receive reports of this sort, just as it’s a government responsibility to receive corporate financial reports that are filed with the Securities and Exchange Commission. Hence, why should fracking operators file their reports through a website owned and operated by the oil industry? The NRDC notes that this violates a Federal Order “requiring federal data to be available to the public in an accessible format that can be downloaded for research and analysis.”
Allows fracking operators to submit generic plans about their operations: The rules allow fracking operators to submit a “master hydraulic fracturing plan” that covers several wells on the same site. The NRDC says this is based on flawed thinking that all wells at the same site would be the same, and therefore requiring separate documentation for each well would be duplicative. The NRDC goes on to note that “geologic variations necessitate differences in well stimulation design and operation” and that “even if there are cases where the geology that each well intersects is similar, that doesn’t mean each well will be built, fractured, or operated in the exact same way.”
The New Rules Fail to Address Other Key Safety Concerns: The new rules don’t, according to NRDC, regulate fracking in environmentally sensitive areas like wilderness areas or drinking water resources. Also lacking are setbacks prohibiting fracking operations near sensitive locations like schools or homes.

It’s not all bad according to the NRDC. A specific improvements is the banning of open air pits for temporary storage of produced water. This water comes back to the surface after a fracking operation, and is typically heavily laced with underground chemicals as well as fracking chemicals, and in some cases it’s even radioactive with Radon. Current practice is to put the water in puts, sometimes unlined pits. These pits are a major source of ground pollution and air pollution. The new rules prohibit using open air pits for temporary storage, but unfortunately don’t prohibit their use for long-term storage.

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About David Herron

David Herron is a writer and software engineer living in Silicon Valley. He primarily writes about electric vehicles, clean energy systems, climate change, peak oil and related issues. When not writing he indulges in software projects and is sometimes employed as a software engineer. David has written for sites like PlugInCars and TorqueNews, and worked for companies like Sun Microsystems and Yahoo.