There are many exemptions for fracking under United States federal law: the oil and gas industries are exempt or excluded from certain sections of a number of the major federal environmental laws. These laws range from protecting clean water and air, to preventing the release of toxic substances and chemicals into the environment: the Clean Air Act, Clean Water Act, Safe Drinking Water Act, National Environmental Policy Act, Resource Conservation and Recovery Act, Emergency Planning and Community Right-to-Know Act, and the Comprehensive Environmental Response, Compensation, and Liability Act, commonly known as Superfund.
Hydraulic 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 allowing the natural gas to be harvested.
Hydraulic fracturing has changed the energy scene as a result of many technological advances. Fracking uses both historically-known vertical and horizontal drilling techniques which are used in tandem to extract oil and gas. This process can occur at depths over 10,000 feet deep.
The primary product of hydraulic fracturing is natural gas which consists mostly of methane.
Clean Air Act Congress passed the 1970 Clean Air Act to ensure that the general public was protected from harmful levels of criteria pollutants, established by the Environmental Protection Agency (EPA). The six regulated criteria pollutants include: particulate matter, lead, ozone, NO, carbon monoxide, and sulfur dioxide. 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 Emissions Standards for Hazardous Air Pollutants (NESHAP), by using the "Maximum Achievable Control Technology" (MACT) specified for their industry.
In 1977 and 1990, Congress amended the law to create provisions related to the Prevention of Significant Deterioration clauses as well as create programs related to controlling and preventing acid rain, respectively. However, under the act, major sources of hazardous air pollutants are required to obtain a "Title V" permit to ensure that the minimum standards are in place under the regulations, 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 act, essentially to be unregulated under this federal statute.EPA (2012). "National Emission Standards for Hazardous Air Pollutants From Oil and Natural Gas Production Facilities." Code of Federal Regulations,
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.United States. Clean Water Act. Approved October 18, 1972. et seq. 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. The National Pollution Discharge Elimination System (NPDES) permitting requirements apply to all phases of the petroleum industry. Petroleum industry waste, including frac flowback and produced water, cannot be discharged to the waters of the United States, except under an NPDES or equivalent state permit.
In 1987, Congress amended the Act,United States. Water Quality Act of 1987. Approved February 4, 1987. requiring the EPA to develop a permitting program for storm water runoff,CWA sec. 402(p), . but the exploration, production, and processing of oil and gas was exempt.
The Energy Policy Act of 2005 expanded the exemption to include exemptions for runoff from gas and oil construction activities which include "oil and gas exploration, production, process, or treatment operations and transmission facilities."
In 2006 EPA promulgated regulations that would not require oil and gas facilities to obtain storm water runoff permits, if the runoff is "composed entirely of storm water","EPA Administered Permit Programs: the National Pollutant Discharge Elimination System." § 122.26 Storm water discharges. Code of Federal Regulations, which is defined as composed of "precipitation runoff" and "not contaminated by contact with or that has not come into contact with, any overburden, raw material, intermediate products, finished product, byproduct or waste products located on the site of such operations."40 CFR 122.26(e)(8). Any discharges containing other than precipitation runoff, such as petroleum or produced wastewater are still subject to criminal prosecution under the Clean Water Act.US Attorney's Office, Southern District of Ohio, Monroe County company owner pleads guilty to discharging wastewater into a tributary of the Little Muskingum River, 12 Feb. 2013. EPA's 2006 rule was vacated by the United States Court of Appeals for the Ninth Circuit.Natural Resources Defense Council v. EPA, 526 F.3d 591, 596, 607-08 (2008). Following the court ruling, the regulations published prior to 2006 have remained in effect.
Safe Drinking Water Act In 1974, the Safe Drinking Water Act (SDWA) was passed to protect the quality of U.S. public drinking water and aims to protect above and below ground water sources that are or could potentially be used for human consumption.United States. Safe Drinking Water Act. Approved December 16, 1974. et seq. Section C of the SDWA requires the EPA to establish minimum regulations for state Underground Injection Control Programs. Under part C, Section 1421 of the SDWA, underground injection is "the subsurface emplacement of fluids by well injection." The oil and gas industry makes extensive use of Class II injection wells, which are regulated under the SDWA. As of 2022 there are approximately 180,000 Class II wells injecting over 2 billion gallons of fluids daily. Most Class II wells are used for enhanced oil recovery, such as waterfloods. About 20 percent of Class II wells are used in waste disposal, to dispose of produced water, usually brine, into deep formations below the base of fresh water.
From the time of the passage of the 1974 SDWA, EPA declined to require Class II UIC permits for hydraulic fracturing. The agency maintained that it was not required to do so, because underground injection was not the "principal function" of the wells. The EPA also cited the "endangerment clause" in SWDA section 1421(b)(2), which directs the EPA to establish regulations which: "… are essential to assure that underground sources of drinking water will not be endangered by such injection." The agency stated that it did not consider hydraulic fracturing to be an endangerment to underground drinking water sources.Adam Vann and others, Hydraulic Fracturing: Selected Legal Issues, US Library of Congress, Congressional Research Service, 26 Sept. 2014., p.1-2.
The policy was overturned in 1997 by the United States Court of Appeals for the Eleventh 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.
The EPA responded with a study of potential and actual impacts of hydraulic fracturing of coalbed methane wells on drinking water, published in 2004. Section 7.4 of the report "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." The exception was for frac fluids containing diesel fuel, which the EPA concluded could pose a threat.
The conclusions of the EPA report were incorporated into law the following year, by two amendments of the SDWA contained in 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.United States. Energy Policy Act of 2005. Approved August 8, 2005. This provision became known to its critics as the "Halliburton loophole" named after the oil services firm Halliburton.
National Environmental Policy Act The National Environmental Policy Act (NEPA) of 1969 requires federal agencies to conduct an environmental assessment for all major actions potentially affecting the environment. If the assessment determines that the federal action may significantly alter the environment, then an environmental impact statement (EIS) is required.United States. National Environmental Policy Act. Approved January 1, 1970. et seq.
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, and do not require an EIS, unless it can be demonstrated that they pose a risk to the environment, Congress specified five circumstances for which there would be such a rebuttable presumption that an additional EIS is not required:
Other than for the exclusions listed above, federal agencies are required by NEPA to do Environmental Impact Statements to evaluate any oil and gas activities which have the potential to seriously affect the environment. Such EIS's are routinely done for specific areas by the U.S. Forest Service,U.S. Forest Service, EIS, Pike and San Isabel national forests, accessed 8 December 2014. the Bureau of Land Management,U.S. Bureau of Land Management, Oil and gas strategy , accessed 8 Dec. 2014 and the Bureau of Ocean Energy Management.U.S. Bureau of Ocean Energy Management, Arctic Ocean EIS, accessed 8 Dec. 2014.
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.
In December 1978, the EPA issued its proposed RCRA regulations. For RCRA Subtitle C (hazardous waste management), the EPA defined six categories of "special wastes," which were generated in high volumes and were believed to be less hazardous than the other wastes for which RCRA Subtitle C was designed. Among the special wastes were included cement kiln dust, fly ash, mining wastes, and wastes from oil, gas, and geothermal exploration and production. The oil, gas, and geothermal wastes included drilling fluids, produced waters, and other wastes associated with oil and natural gas exploration, development, or production. The EPA proposed that regulation of special wastes under Subtitle C, be deferred until further study.US EPA, Special wastes, 15 Nov. 2012.