This blog post is co-authored with Matthew McFeeley.
The Obama administration's Bureau of Land Management (a division of the Department of the Interior) today released new rules for fracking "hydraulic fracturing") on public and tribal lands. The rules will apply to more than 750 million acres of public and tribal lands across the United States, as well as private lands where the minerals are federally managed ("split estate"). This is an area more than seven times the size of California. Strong rules are needed because these lands include our nation's last wild places, sources of drinking water for tens of millions of Americans, and farms, ranches, and backyards. Yet, the rules that govern important aspects of oil and gas extraction on these lands including well integrity and waste management had not been updated in over 20 years despite the increasingly widespread use of well "stimulation" techniques like high-volume fracking - until today.
We thank the Obama administration for acknowledging the risks from fracking and the need to update and strengthen the rules and for issuing new rules - they were long past due and past administrations completely ignored the risks of fracking on public lands. And there are some aspects to these rules--which we'll discuss below--that will be an improvement when it comes to reducing the risks to public lands and nearby communities. 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.
In the course of developing these rules, the BLM released two separate proposals before issuing a final rule--the first in May, 2012 and the second in May, 2013. The second draft was significantly watered down when compared to the first. Some of the most glaring problems in the second version have been removed, but many aspects of the final rules are weaker than the original proposal.
While there have been a few improvements, these rules largely bow to industry demands, putting drinking water at risk, thwarting transparency, and failing to modernize key standards. Here is an overview of what's in them:
Administration Can Issue Unprecedented, Far-Reaching Exemptions
BLM will have discretion to exempt all fracking operations on federal leases in an entire state from specific provisions of the new rules if the agency determines that a state's rules "will satisfy the objectives of the regulation" BLM is waiving. This is called a "variance." While it makes sense to avoid duplicative requirements, the variance as written in this rule is so vague and broad that it provides an opportunity for abuse and cannot ensure that the regulatory goals of the new rules are achieved. This is uncharted territory: federal rules are in place specifically to protect publicly-owned resources and the BLM is charged with protecting those lands. Blanket exemptions of all fracking operations in a particular state could hamstring the BLM's ability to manage risks and ensure that the objectives of particular rules are met. Even if a BLM inspector were to discover a clear violation that put the environment at risk, it is not clear what authority the BLM would have to prevent that violation if the operations in that state had been exempted from the federal rule at issue. Unfortunately, many states have poor records of enforcing their rules on oil and gas drilling and fracking.
Risky Techniques Similar to Fracking Not Covered
While the first proposal from the BLM would have covered all "well stimulation" techniques, the final rules apply only to fracking-only one type of well stimulation--leaving risks from similar processes unaddressed. The other type of well stimulation primarily used by the oil and gas industry today is known as acidizing, or acid stimulation. It has been estimated that more than 40,000 acid stimulation treatments are performed in oil and gas wells every year. Multiple different types of acid and other potentially toxic chemicals are used in acid stimulation, including some of the exact same products used in fracking fluids. For example, one commonly used chemical in acid stimulation is hydrofluoric acid, which is extremely toxic and exposure to it can be life threatening. Acids and other chemicals used in acidizing treatments are often corrosive and present a risk to well integrity. Just like with fracking, mechanical integrity must be established and maintained before, during, and after acid stimulation. The spent acid that returns to the surface after acidizing poses similar environmental risks as fracking flowback and must also be properly handled, transported, and disposed of. Because acidizing and other well stimulation techniques present many of the same environmental and public health risks as fracking, they should be regulated similarly. The BLM's first draft of rules rightly would have covered all well stimulation, similar to rules in states like California, Ohio, and Wyoming. But the final rules cover only fracking, leaving the risks from acidizing and other well stimulation techniques unaddressed.
Allowing Fracking Companies to Hide Behind a Smokescreen of Corporate Secrecy
The new rules establish a federal requirement for disclosure of fracking chemicals used to frack each well under a federal oil and gas lease. That is a move in the right direction, but the new BLM rules would allow fracking companies to decide which chemicals they want to keep secret from disclosure to the BLM and to the public. All they would have to do is claim that a chemical is a confidential "trade secret," without providing any factual justification to the agency. The BLM would not have the information needed to evaluate these claims, and there would be no process for members of the public to challenge such claims. Additionally, neither the BLM, medical professionals, nor emergency responders would have access to this information if needed in an emergency. These trade secret provisions are much weaker than many states and ignore the advice of a Department of Energy advisory panel which unanimously recommended that "any trade secret exemptions permitted by BLM in its regulations for hydraulic fracturing on federal lands include a rigorous process of claiming trade secret exemptions and robust trade secret verification and challenge mechanisms."
- Even industry-friendly states like Wyoming and Pennsylvania make companies submit trade secret information so that it is preserved and so the validity of companies' claims that information is proprietary can be evaluated. The first BLM proposal would have required submission of all information to BLM, even if claimed as confidential, but those provisions were removed in the second draft.
- As mentioned above, the rules do not allow for citizens to challenge company secrecy claims. But at least eight states allow such challenges including Colorado, Pennsylvania, Texas, and Wyoming. The original BLM proposal would have provided a route for citizens to challenge questionable claims via standard Freedom of Information Act procedures, but such challenges are not possible under the final rules.
- Under the rules medical professionals and emergency responders cannot obtain fracking chemical information claimed as a trade secret that may be needed to protect themselves at the scene of an accident or to diagnose and treat patients. At least twelve states have rules that allow health professionals and/or emergency responders to access confidential information, but the BLM did not heed calls from NRDC and others to include such a requirement.
Thwarting Transparency of Fracking Chemical Information
Rather than using a government website to provide information on the chemicals being used for fracking on public lands, under the new rules, companies are allowed to disclose information on FracFocus.org, an industry-funded website. In its current form, the adoption of FracFocus violates an Executive Order requiring federal data to be available to the public in an accessible format that can be downloaded for research and analysis. A Harvard study found that the use of FracFocus as a regulatory tool has "serious flaws" and the Department of Energy panel recommended a number of changes to the site because it limits the public's ability to obtain, use, and share data and has inadequate quality control measures. While FracFocus has promised improvements, it is unclear if the improvements will address these concerns since they have not yet been implemented. BLM should not adopt the site for use until the necessary changes are made and it complies with the Executive Order on open and accessible public data.
Letting Fracking Companies Submit Generic Information about Their Operations
The new BLM rules allow operators to submit a "master hydraulic fracturing plan." This provision lets operators submit a single permit application for a group of wells, excusing them from submitting essential unique information that pertains to the risks of fracking for each well. This approach is based on the BLM's false assumption that wells that are drilled through the same rocks will be constructed and will behave the same way. There is no scientific basis for this assumption.
To the contrary, geology can vary significantly over very short distances. These geologic variations necessitate differences in well stimulation design and operation. Moreover, 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, as the BLM's rules assume. As such, all the information submitted in a stimulation permit application should be unique to the well for which a permit is being sought. Under the new rules, operators will be allowed to submit generic information about important well characteristics, such as the depth to drinking water, the location of faults, and the hydraulic fracturing design. This means that BLM regulators will be making decisions to issue fracking permits without critical information about drilling and fracturing operations, and therefore without a complete understanding of the environmental and public health risks. All states we've examined already require an individual permit application to be submitted for each well, which is NRDC's recommended practice, so companies can easily comply with this requirement.
The New Rules Fail to Address Other Key Safety Concerns
We're disappointed that the new rules don't address other areas where BLM regulations need to be updated and strengthened to reduce the risks of fracking. These include:
- Putting sensitive areas off-limits: Even with the strongest possible regulation and oversight, the risks posed by oil and gas extraction can never be completely eliminated. Some places are simply too environmentally sensitive for any drilling, such as wilderness areas, drinking water sources, critical habitat for endangered species, and others. BLM's new rules fail to protect important lands where well stimulation should be completely prohibited.
- Appropriate setbacks: From the dangerous chemicals used in drilling and fracking, to toxic wastewater, to harmful air contaminants, to light and noise pollution, oil and gas extraction using well stimulation poses significant threats to the environment and public health. BLM must institute rules to keep oil and gas drilling and its related pollutants away from sensitive places like schools, homes, water wells, wildlands, and wildlife habitat.
Some positives about the rules
- Progress on Open Air Pits: The Obama administration has taken a step forward in requiring fracking wastewater known as "flowback"; to be temporarily stored in tanks rather than dangerous open-air pits. While there is an exception in instances where tanks are "infeasible for environmental, public health or safety reasons," even then any pit must be lined and set back from sensitive receptors. However, this rule only applies to temporary storage, and the fracking flowback can still be disposed of in pits, including unlined pits, after this interim period. And the setback distances and pit construction requirements where pits would be allowed are much too weak. Pits are one of the most common sources of pollution from oil and gas operations. They are outdated and dangerous ways to store toxic wastewater and have contaminated clean air, drinking water, and soil and harmed wildlife and this is a step toward eliminating them from the oil and gas industry playbook.
- Contamination Pathways: The new rules now require operators to identify faults and existing wells (including oil, gas, or water) located within a half-mile of any wells that will be fracked. Identifying and evaluating these features is critical because they can serve as pathways for contaminants to reach groundwater. This should be required everywhere, and the BLM requirement is a first step--but it is a baby step. The rules don't require anything beyond just locating these potential pathways--providing little assurance that any existing wells or faults identified will actually be assessed, monitored, or - if necessary - remediated.
- Well Integrity: In previous versions of the rule, operators could wait until after fracking to submit cement evaluation logs, which are needed to help verify cement integrity. In the revised rules, operators are now required to demonstrate that wells have been properly cemented and that usable water is protected before any fracking occurs.
 The rules will apply to almost 650 million acres of federal lands, including national forests, national wildlife refuges and land managed by the BLM. In addition, the rules will apply to fracking on about 56 million acres where tribes own the oil and gas rights and another 57 million acres where the federal government owns those rights below state- and privately-owned lands.
 Economides, M.J.; Nolte, K.G. (Eds.), Reservoir Stimulation, 3rd ed., Wiley: New York, 2000.
 See Economides supra Note 2.