The gas industry would have us believe that shale gas has become recently accessible due to technological advances. The truth is that the technology has only become affordable due to deliberate changes to important public health legislation. These loopholes have been expanded over time, until today the oil and gas industry almost no obligation to keep its mess from affecting the public health. The consequence is illness from poisoned land, air and water – and federal, state and local institutions left with costs the public cannot afford. The following list details major exemptions that the oil and gas lobby has squeezed out of our most significant national environmental and health legislation.
Note: This article links to the relevant chapters of the 2010 version of the United States Code maintained by the US House of Representatives.
CERCLA
Comprehensive Environmental Response Compensation and Liability Act
42 U.S.C. Chapter 103 section 9601
CERCLA established the Superfund program in 1980 to ensure that parties contributing to an environmental mess are legally responsible for the cost of cleaning it up – unless that mess is from oil or natural gas. CERCLA excludes oil and gas products and any chemicals contained in them (unless otherwise regulated*) This exclusion means that oil and gas explorers and producers can cut corners, spill and leak chemicals, and not worry about having to clean up the site or be liable for cleanup. Instead, they can sell an old well to a speculator, who produces as much as possible for as long as possible before abandoning the site. Liability for a cleanup must be proved in court for each site. This is an expensive and lengthy process that doesn’t even begin until the site is officially contaminated, by which time the pollution may be spreading beyond the site boundaries through underground aquifers.
* There are 4 different sections of US Code that specify the otherwise regulated chemicals, and each section contains an exemption for oil and gas.
RCRA or Solid Waste Disposal Act (42 U.S.C. § 6921)
Clean Water Act (33 U.S.C. §§ 1317(a), 1321(b)(2)(a))
Toxic Substances Control Act (15 U.S.C. § 2606)
Clean Air Act (42 U.S.C. § 7412)
RCRA- Resource Conservation and Recovery Act
RCRA (a.k.a. Solid Waste Disposal Act) was created in 1978 to regulate hazardous and solid wastes. However, 1988 EPA Regulatory Determination 53 FR 25447 and 1993 clarification 58 FR 15284 exempt any wastes brought to the surface in the process of oil and gas well exploration and production. They also exempt anything that is produced during the removal of produced water or other contaminants from the product, including used fracking fluids, hydrogen sulfide gas, and gas condensate. Fracturing fluid is therefore hazardous from the time it leaves the manufacturing facility until it touches the inside of a well, when it is suddenly no longer considered hazardous under federal law!
SDWA – Safe Drinking Water Act
The Safe Drinking Water Act was initially passed in 1974. The Safe Drinking Water Act’s Underground Injection Control program protects underground sources of drinking water from contamination by injected fluids. Underground injection is used for storage, for waste disposal, and for production of petrochemicals or geothermal energy. In 2005 the Energy Policy Act amended the Safe Drinking Water Act to exclude hydraulic fracturing from the definition of “underground injection.” Section 322. The Frac Act cosponsored by Representative Maurice Hinchey and first introduced in 2009 would remove this exemption and require disclosure of chemicals injected for hydrofracking.
Clean Water Act
Original statute (sec 1342) exempts storm-water runoff carrying sediment from oil and gas sites from regulation, and the exemptions were expanded in the 2005 Energy Policy Act (sec 1362). The 2005 energy act also exempted fracking materials used in oil and gas production from being considered a pollutant under NPDES, and delegated determination of risk to states. See Section 323 of the 2005 Energy Act
Clean Air Act
The EPA is required to list major and clustered minor categories of sources of air pollution, but has not included wells or fields allowing operators to avoid emissions controls standards. National Emission Standards for Hazardous Air Pollutants (NEHAPS) sets maximum limits on pollution from individual sources and requires Maximum Achievable Control Technology (MACT) to be installed at each source to reach compliance. Clusters of smaller sources can add up to a major source of pollutants. A cluster of cement kilns or steel plants controlled by the entity is counted as a single “aggregated” source and regulated under the national emission standards of the Clean Air Act, but oil and gas wells and some compressor and pump stations are exempt from the same aggregation and remain unregulated. Low producing stripper wells are also exempt from emissions regulation in 1990, and hydrogen sulfide, a lethal gas associated with gas exploration and production, was struck from the list of pollutants in 1991.
NEPA – National Environmental Policy Act
The National Environmental Policy Act requires government agencies to consider the environmental impact of their actions, and requires public comment and evaluation of alternatives through an EIS (environmental impact statement) process when a significant impact is likely. The 2005 Energy Policy Act (section 390) created a categorical exclusion for some types of oil or gas well expansions, allowing them to occur with limited review. The public now has to prove significant harm to challenge anything on the basis of NEPA violations.
Toxic Release Inventory of EPCRA
(Emergency Planning and Community Right to Know Act)
The oil and gas industry is exempt from reporting releases of toxic materials (for example via evaporation, underground injection, or transfer to a treatment facility) in the Toxic Release Inventory.