Regulatory Exemptions and Oversights
Federal law exempts Marcellus Shale gas extraction from regulation by a half-dozen landmark environmental laws that typically apply to industrial activities. According to authors of a study by The Endocrine Disruption Exchange (TEDX), “The cumulative effect of these exemptions and exclusions has been to create a federal void in environmental authority over natural gas operations, leaving the responsibility primarily to the states…their [the State’s] focus has not typically been on health and the environment.” 
The Safe Drinking Water Act (SDWA) was originally enacted in 1974 to protect public drinking water supplies as well as their sources. In 2005, under the Energy Policy Act, Congress amended the law to exempt gas extraction through hydraulic fracturing from all of its provisions, except when diesel fuels are injected underground. Yet no studies have been conducted to document that fracking fluids are any safer than diesel fuels for these purposes.
- SDWA specifically excludes the natural gas industry from the regulations for underground injection wells (except for diesel fuel). This exemption allows the industry to inject hydraulic fracturing and other fluids that have known toxins and carcinogens into these wells, along with hydraulic fracturing products with unknown composition. The oil and gas industries are not covered under the Emergency Planning & Community Right-to-Know Act.
- A 2004 EPA study focused on coal bed methane reservoirs concluded that fracking posed “little or no threat” to underground drinking water sources; this report helped justify the statutory exemption from the SDWA. However, the study has been widely discredited. It failed to collect data independently, to demand industry disclosures and to identify the contents of the fracking fluid. It was also faulted for terminating the investigation after finding evidence that toxic and carcinogenic substances were being injected into underground water sources.
The Clean Water Act, as amended in 1972, is the key law that protects America’s rivers, streams and lakes from industrial discharges and runoff. All runoff from oil and gas extraction or production facilities is exempt from regulation, except for sediment runoff caused by construction activity. The Energy Policy Act removed the Environmental Protection Agency’s authority to regulate even sediment runoff from oil and gas-related construction sites.
- The oil and gas industries are exempt from a 1987 amendment to the Clean Water Act that requires a permit for large scale ground-disturbing activities that increase runoff and, in turn, water pollution. According to the General Accounting Office (GAO), sediment (whether toxic or not) causes water pollution because it “clouds water, decreases photosynthetic activity, reduces the viability of aquatic plants and animals, and ultimately destroys organisms and their habitat.”
- Fracturing fluid chemicals and wastewater can leak or spill from flow lines, trucks, tanks or holding pits and thus may contaminate soil, air, and water resources. Storm water runoff can potentially infiltrate poorly constructed water wells, especially in areas where fracking and residential areas are in close proximity. Generally, domestic drinking wells are shallower than natural gas wells, and their casings may not extend their entire depth. Contaminated water can flow from the ground surface and and through subsurface fractures to enter the water of such wells, compromising the quality of drinking water in the well and potentially even the drinking water aquifer itself.
The Clean Air Act, first passed in 1970, treats each oil and gas well as an individual and separate source of pollution. By failing to aggregate these sources of emissions by company and industry, the law fails to require operators to adequately control their polluting emissions—allowing the industry freedom to pollute the air with few federal restrictions.
- The Clean Air Act established hazardous pollutant limits called the National Emissions Standards for Hazardous Air Pollutants (NESHAPs). To meet the standard, a company must install emission controls to enable it to match the cleanest facilities in an industry sector. Small sources of toxic air pollution, under common control and in close proximity to each other, are grouped together and considered one source of pollution and must comply with NESHAP. The exclusion for natural gas means that the pollution from wells, compressors and disposal pits that are adjacent to each other are not aggregated and do not have to comply. Similarly, small sources of toxic emissions (equipment) are exempt. This large loophole enables tons of VOCs and other hazardous air pollutants to be released without any protections under federal regulations.
- In April 2012, the EPA issued new limits on air pollution caused by natural gas drilling, aimed at reducing emissions of benzene, VOCs and methane. The new rules, however, cover only new sources rather than existing ones (e.g. no retrofitting is required). Companies have until January 2015 to comply with the green capture requirements. There are no restrictions on emissions of methane, no standards for vulnerable populations, and a loophole allows existing facilities to release up to one ton per year of benzene from their large glycol dehydrators used to remove impurities from natural gas.
The National Environmental Policy Act ensures that all branches of government consider the impacts of any activity they undertake on the health and well being of people and their air, land and water. In 2005, the Energy Policy Act allowed the oil and gas industries to carry out a variety of activities without the thorough environmental review normally required by the National Environmental Policy Act, allowing instead a more limited review under the designation “categorical exclusion.”
The Resource Conservation and Recovery Act includes provisions governing hazardous waste management. Congress exempted wastes from oil and gas fields from regulation under this law. As a result, the Environmental Protection Agency allows wastes produced from oil and gas wells—which can include cancer-causing chemicals such as benzene that are regulated when used in other industries—to contaminate the environment and endanger public health.
The Toxics Release Inventory, which is authorized under the Emergency Planning and Community Right-to-Know Act, compiles information from a wide variety of industries about their discharges of hazardous chemicals to air, water and land. However, the Environmental Protection Agency, which implements the law, exempts the oil and gas extraction industries from reporting emissions. This leaves the public in the dark about the amounts of chemicals emitted into the air or water or left underground after hydraulic fracturing operations are complete.
Other exemptions remove the oil and gas industries from a wide range of landmark environmental legislation. States have a strong revenue incentive to allow hydraulic fracturing and budgetary constraints make it difficult to enforce any State regulations. The industries have little motivation to self-regulate. For example, under the Comprehensive Environmental Response Compensation & Liability Act (CERCLA) better known as the Superfund law, oil and gas companies were taxed to fund cleanups in exchange for an exemption. However, the tax provision expired in 1995 but the exemption still remains. Finally, there is lack of transparency. The companies are not required to reveal the chemicals and compounds they are using if they are considered trade secrets under the public right-to-know provisions of the Emergency Planning & Community Right-to-Know Act. Therefore, the full extent of the chemicals being used, and their potential environmental or health impacts, remains unknown.
- A Congressional investigation found that 94 million gallons in 279 products contained at least one chemical or component that manufacturers deemed proprietary or a trade secret. The investigation concluded:
“The absence of a minimal national baseline for disclosure…has left an informational void concerning the contents, chemical concentrations and volumes of fluids that go into the ground during fracturing operations and return to the surface in the form of wastewater. As a result, regulators and the public are unable to effectively assess any impact the use of these fluids may have on the environment or public health.”
Federal and state commissions have been established to examine the impact of hydraulic fracturing on public health, yet a study by Bernard Goldstein found that neither state nor national advisory committees selected to respond to these concerns contained recognizable environmental public health expertise. Specifically, of the 51 members on three advisory commissions (one federal, two state), there was “no evidence that any member had expertise in the human health aspects of environmental health or experiences in health or healthcare. Based on the available information, we were unable to identify any public health personnel, physicians, nurses, pharmacists, dentists or others with a health background on the three commissions.” A fear that having these experts on the commission might slow the rush to develop natural gas is one reason posited for the lack of participation by the health community.
Based on extensive study and scientific evidence Catskill Mountainkeeper believes that no amount of regulation could make fracking safe, which is why we have called for a ban. However, we are still working within the existing regulatory process in New York to raise critical issues, widen the discussion of the impacts of drilling, and expand the options available to protect the public.
 Madsen, Schneider, and Staaf, “In the Shadow of the Marcellus Shale; How Gas Extracton Puts Vulnerable Pennsylvanians at Risk.”
 Theo Colborn et al., “Natural Gas Operations from a Public Health Perspective,” Human and Ecological Risk Assessment 17, no. 5 (September 20, 2011): 1040.
 Mall, Buccino, and Nichols, Drilling Down: Protecting Western Communities from Health and Environmental Effects of Oil and Gas Production. Pg. 5
 Ibid. Pg. 6.
 Unconventional Gas Shales: Development, Technology and Policy Issues (Congressional Research Service, October 30, 2009).
 Mall, Buccino, and Nichols, Drilling Down: Protecting Western Communities from Health and Environmental Effects of Oil and Gas Production.pg. 11
 “The New EPA Clean Air Act Rules for Dangerous Air Pollution from Natural Gas Operations–what Do They Mean? | Amy Mall’s Blog | Switchboard, from NRDC”, n.d., http://switchboard.nrdc.org/blogs/amall/the_new_epa_clean_air_act_rule.html.
 Chemicals Used in Hydraulic Fracturing.
 Bernard Goldstein, Barbara Pavliakova, and Jill Kriesky, “Missing From the Table: Role of the Public Health Community in Governmental Advisory Commissions Related to Marcellus Shale Drilling,” Environmental Health Perspectives 120, no. 4 (April 2012): 483–486.