Last week’s media coverage of the Obama administration’s newly-proposed fracking rules focused so heavily on how drilling companies would have to disclose the chemicals they use that it largely overlooked the toughest provisions: Drillers would be required to test the physical integrity of their wells, and more water would be protected from drilling. Since many wells fail because the cement and casings crack, the new tests could prevent dangerous leakages.

One major limitation: Although widely understood as “national” guidelines, the draft rules would in fact only apply to a sliver of the nation’s natural gas supply. That’s because they would apply to mineral rights managed by the Bureau of Land Management, which means areas beneath most BLM and tribal land, but scarcely any U.S. Forest Service, private or state-owned lands – where most drilling occurs. Industry has criticized the proposed rules as too restrictive.

The draft rules would require companies to conduct “mechanical integrity tests.” These include pressure tests to make sure that the well can withstand the highly pressurized fluid used for fracking. Ensuring that wells are properly sealed is considered critical for preventing water and ground contamination.

The proposed rules also expand the scope of water protected from drilling to include not just fresh water but all “usable water” – meaning lower quality water used for agriculture and construction, as well as water that can be treated to make potable. Currently, only water with up to 5,000 parts per million of total dissolved solids is protected by the BLM. The new rules would expand that definition to include water with up to 10,000 parts per million, which matches the EPA’s definition for an underground source of drinking water.

“The proposed rule will modernize our management of well stimulation activities – including hydraulic fracturing – to make sure that fracturing operations conducted on public and Indian lands follow common-sense industry best practices,” Secretary of the Interior Ken Salazar said in a statement.

The lands covered by the proposed rules are the source of “11 percent of the Nation’s natural gas supply and five percent of its oil,” according to the BLM. About 3,400 wells are drilled on these lands each year, according to the bureau, and 90 percent of those wells use hydraulic fracturing, a technique to extract natural gas by injecting into the earth highly pressurized fluids laden with chemicals, sometimes including potentially toxic ones such as benzene and lead.

Environmental activists wonder how likely the rules are to be enforced. 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.

Environmentalists also lambasted a provision that would require companies to disclose the chemicals they use to frack on some public lands. At issue was timing: The draft rule would allow companies to complete drilling before they make public the chemicals they had injected into the ground. Although some drilling companies report the chemicals they use to online public registries, they are not always required to do so. Many drillers claim that disclosure would amount to revealing “trade secrets.”

The timing of disclosure matters. Landowners who want to see if a nearby well is polluting their land or water need a baseline assessment of chemicals that are present before drilling. If they don’t know the chemicals the company will inject, the only way to get a baseline reading is to test for a vast number of chemicals, an expensive and impractical undertaking.

“Knowing after the fact is nice, but does not allow for any steps to be taken if the chemicals being used are of concern to the public. I urge the Interior Department to strengthen this rule,” Congressman Maurice Hinchey (D-NY) said in a statement. Hinchey co-authored national legislation to give the EPA the power to monitor all fracking activities in the U.S., which under current law the agency cannot regulate.

The proposed disclosure rules would not demand much more than the standards some states already have in place. For example Colorado and Wyoming have large swaths of public lands targeted by the draft rules, but they already have disclosure regulations that are equally stringent, if not more so, than the federal proposal. Colorado requires that companies disclose the chemicals they use in addition to their concentrations within 60 days of fracking activities. Wyoming requires disclosure of chemicals both before and after fracking, although its regulation has been criticized for not making all of those disclosures public.

“It seems like BLM has looked at state rules as a ceiling, not as a floor, for what should be done,” said attorney Schlenker-Goodrich, who charged that the administration was putting forward “half-measures.”

Industry charges that the rules would slow down drilling too much. The Independent Petroleum Association of America and ExxonMobil did not immediately respond to requests for comment, but the IPAA head Barry Russell told Reuters that the rules will “will undoubtedly insert an unnecessary layer of rigidity into the permitting and development process.”

Once the draft rule is published in the Federal Register, the BLM will take comments for 60 days before it finalizes the rule.

by Lena Groeger, ProPublica, May 8, 2012, 12:04 p.m.

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A new study has raised fresh concerns about the safety of gas drilling in the Marcellus Shale, concluding that fracking chemicals injected into the ground could migrate toward drinking water supplies far more quickly than experts have previously predicted.

More than 5,000 wells were drilled in the Marcellus between mid-2009 and mid-2010, according to the study, which was published in the journal Ground Water two weeks ago. Operators inject up to 4 million gallons of fluid, under more than 10,000 pounds of pressure, to drill and frack each well.

Scientists have theorized that impermeable layers of rock would keep the fluid, which contains benzene and other dangerous chemicals, safely locked nearly a mile below water supplies. This view of the earth’s underground geology is a cornerstone of the industry’s argument that fracking poses minimal threats to the environment.

But the study, using computer modeling, concluded that natural faults and fractures in the Marcellus, exacerbated by the effects of fracking itself, could allow chemicals to reach the surface in as little as “just a few years.”

“Simply put, [the rock layers] are not impermeable,” said the study’s author, Tom Myers, an independent hydrogeologist whose clients include the federal government and environmental groups.

“The Marcellus shale is being fracked into a very high permeability,” he said. “Fluids could move from most any injection process.”

The research for the study was paid for by Catskill Mountainkeeper and the Park Foundation, two upstate New York organizations that have opposed gas drilling and fracking in the Marcellus.

Much of the debate about the environmental risks of gas drilling has centered on the risk that spills could pollute surface water or that structural failures would cause wells to leak.

Though some scientists believed it was possible for fracking to contaminate underground water supplies, those risks have been considered secondary. The study in Ground Water is the first peer-reviewed research evaluating this possibility.

The study did not use sampling or case histories to assess contamination risks. Rather, it used software and computer modeling to predict how fracking fluids would move over time. The simulations sought to account for the natural fractures and faults in the underground rock formations and the effects of fracking.

The models predict that fracking will dramatically speed up the movement of chemicals injected into the ground. Fluids traveled distances within 100 years that would take tens of thousands of years under natural conditions. And when the models factored in the Marcellus’ natural faults and fractures, fluids could move 10 times as fast as that.

Where man-made fractures intersect with natural faults, or break out of the Marcellus layer into the stone layer above it, the study found, “contaminants could reach the surface areas in tens of years, or less.”

The study also concluded that the force that fracking exerts does not immediately let up when the process ends. It can take nearly a year to ease.

As a result, chemicals left underground are still being pushed away from the drill site long after drilling is finished. It can take five or six years before the natural balance of pressure in the underground system is fully restored, the study found.

Myers’ research focused exclusively on the Marcellus, but he said his findings may have broader relevance. Many regions where oil and gas is being drilled have more permeable underground environments than the one he analyzed, he said.

“One would have to say that the possible travel times for a similar thing in Arkansas or Northeast Texas is probably faster than what I’ve come up with,” Myers said.

Ground Water is the journal of the National Ground Water Association, a non-profit group that represents scientists, engineers and businesses in the groundwater industry.

Several scientists called Myers’ approach unsophisticated and said that the assumptions he used for his models didn’t reflect what they knew about the geology of the Marcellus Shale. If fluids could flow as quickly as Myers asserts, said Terry Engelder, a professor of geosciences at Penn State University who has been a proponent of shale development, fracking wouldn’t be necessary to open up the gas deposits.

“This would be a huge fracture porosity,” Engelder said. “So I read this and I say, ‘Golly, does this guy really understand anything about what these shales look like?’ The concern then arises from using a model rather than observations.”

Myers likened the shale to a cracked window, saying that samples showing it didn’t contain fractures were small in size and were akin to only examining an intact section of glass, while a broader, scaled out view would capture the faults and fractures that could leak.

Both scientists agreed that direct evidence of fluid migration is needed, but little sampling has been done to analyze where fracking fluids go after being injected underground.

Myers says monitoring systems could be installed around gas well sites to measure for changes in water quality, a measure required for some gold mines, for example. Until that happens, Myers said, theoretical modeling has to substitute for hard data.

“We were trying to use the basic concepts of groundwater and hydrology and geology and say can this happen?” he said. “And that had basically never been done.”

by Abrahm Lustgarten, ProPublica, May 1, 2012, 4:29 p.m.

Image Courtesy of    Adrian Kinloch

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One of the key controversies about fracking is the chemical makeup of the fluid that is pumped deep into the ground to break apart rock and release natural gas. Some companies have been reluctant to disclose what’s in their fracking fluid. Scientists and environmental advocates argue that, without knowing its precise composition, they can’t thoroughly investigate complaints of contamination.

Disclosure requirements vary considerably from state to state, as ProPublica recently charted. In many cases, the rules have been limited by a “trade secrets” provision under which companies can claim that a proprietary chemical doesn’t have to be disclosed to regulators or the public.

One apparent proponent of the trade secrets caveat? The American Legislative Exchange Council, better known as ALEC, a nonprofit group that brings together politicians and corporations to draft and promote conservative, business-friendly legislation. ALEC has been in the spotlight recently because of its support of controversial laws like Florida’s “Stand Your Ground” provision.

This weekend, as part of a story on ALEC’s political activity, The New York Times noted that the group recently adopted “model legislation” on fracking chemical disclosure, based on a bill passed in Texas last year. According to The Times, the model bill was “sponsored within ALEC” by ExxonMobil, which runs a major oil and gas operation through its subsidiary, XTO Energy.

The advocacy group Common Cause, which provided the documents on ALEC’s lobbying efforts to The Times, describes model legislation, in many cases identifying by name the company that proposed it to ALEC’s task forces.

ALEC has recently removed its list of model bills from its main website, and did not respond to requests for comment. A spokesman for XTO Energy confirmed that the company is a member of ALEC, but he did not provide details on the company’s involvement with the disclosure bill.

The spokesman said ExxonMobil supports “full disclosure of the ingredients and additives in hydraulic fracturing fluids,” but added that when vendors request it, ExxonMobil has “respected the trade secret status of their products.” Last year, the company began voluntarily uploading chemical disclosures to FracFocus, a clearinghouse website run by the Groundwater Protection Council and the Interstate Oil and Gas Compact Commission.

In a recent blog post, ALEC claimed that legislators in Pennsylvania, Illinois, Indiana, New York and Ohio have introduced versions of its model bill, but many of those states vary in the level of disclosure required and how they handle the trade secrets provision. Laws in 11 states require at least partial disclosure, and the Bureau of Land Management recently drafted disclosure guidelines for drilling on federal land.

These laws have been relatively well-received by environmental advocates, though the trade secrets issue remains a concern for some. In Ohio, for example, proprietary chemicals don’t have to be disclosed to regulators or the public. In Pennsylvania, they are disclosed to regulators, and the public can request information on them from the state Department of Environmental Protection on a case-by-case basis.

The Texas law, which ALEC cites in the post as its template, codifies the trade secrets exemption, and who can challenge it:

Otherwise, Texas’ law requires that companies post disclosure forms for each completed well on the FracFocus site. They must disclose all chemicals but only report the concentrations of those that are hazardous. The law also requires that the companies give the total volume of water used in fracking.

The Environmental Protection Agency cannot regulate fracking in order to protect groundwater, because in 2005 Congress exempted fracking from the Safe Drinking Water Act, which controls how industries inject substances underground.

According to ALEC’s blog, the model disclosure legislation is designed to promote “responsible resource production” and “aims to preempt the promulgation of duplicative, burdensome federal regulations” from the EPA, in particular. ALEC has consistently opposed any federal control over fracking. In 2009, the group adopted a “Resolution to Retain State Authority Over Hydraulic Fracturing.”

by Cora Currier, ProPublica, April 24, 2012, 2:06 p.m.

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In a decision that could set a national precedent for how local governments can regulate gas drilling, a New York state court on Wednesday, February 22, ruled for the first time that towns have the right to ban drilling despite a state regulation asserting they cannot.

At issue was a zoning law in Dryden, a township adjacent to Ithaca and the Cornell University campus, where drilling companies have leased some 22,000 acres for drilling. In August, Dryden’s town board passed a zoning law that prohibits gas drilling within town limits. The next month, Denver-based Anschutz Exploration Corp. sued the town, saying the ban was illegal because state law trumped the municipal rules.

 As Anschutz noted, New York law promotes the development of oil and gas resources in the state. State Supreme Court Justice Phillip Rumsey addressed this point in his decision, writing: “Nowhere in legislative history provided to the court is there any suggestion that the Legislature intended — as argued by Anschutz — to encourage the maximum ultimate recovery of oil and gas regardless of other considerations, or to preempt local zoning authority.”

The Dryden case is merely the latest in a string of similar conflicts arising from Colorado to Pennsylvania that pit local communities against state oil and gas laws. It is common for local governments to zone industrial or commercial land, or to institute ordinances for noise or traffic. When it comes to the development of natural resources like oil and gas, the industry contends that local government shouldn’t make those decisions.

In New York, the controversy over state regulation of fracking has been brewing for years. In 2008, New York effectively put drilling on hold while it launched an environmental analysis of fracking, a process that uses a mix of highly pressurized water, sand and other chemicals to crack the earth deep underground. This is the first ruling on an industry effort to use the mineral extraction law to get around local bans.

In addition to the environmental and health concerns over fracking, which we’ve covered in depth, a fundamental issue has been the rights of localities against state or federal laws. According to Eric Goldstein, a senior attorney for the Natural Resources Defense Council in New York, the right of local governments to determine their own land use has been guaranteed by the Constitution for over a century.

“The argument is simple,” said Goldstein. “New York state laws shouldn’t override the authority of local governments to protect their constituents.”

In New York, two very similarly worded laws govern the regulation of mining and oil and gas drilling. The oil and gas provision gives the state the power to “regulate the development, production and utilization of natural resources of oil and gas.” The town of Dryden argued that it was not trying to regulate fracking but merely trying to protect its citizens and property.

It pointed out that courts have allowed towns to ban mining, and said Dryden should be allowed to do the same for fracking. The justice seemed to agree, concluding that the state’s oil and gas laws don’t prohibit localities from barring drilling.

Anschutz’s lawyer, Thomas West, said he was not sure whether the company would appeal the decision. Even if it does so, said Joseph Heath, an environmental attorney in New York, Tuesday’s win could help set a precedent for other communities. Despite the threat of similar lawsuits from a major corporation, local fracking bans and moratoriums have continued to grow in the last few years. ”People are now concentrating on local governments because that’s the best form of protection against fracking,” said Heath.

Such protection is unlikely to come from the states, as New York’s Department of Environmental Conservation has already deferred to the courts. When ProPublica interviewed the commissioner last year, asked him specifically about the potential for conflict between local municipalities and states. He said it was likely “that the courts will need to decide these issues in a lawsuit between the town and the drilling company, not the state.” Now, it looks as if at least one court has decided.

“[The Dryden case] is an important indicator of how those battles are likely to play out,” said the NRDC’s Goldstein, “although it’s not the final word.”

by Lena Groeger, ProPublica, Feb. 22, 2012, 5:51 p.m.

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