New fracking rules
On Friday the federal Bureau of Land Management (BLM) released a new set of long-anticipated rules regarding fracking. These rules will require oil and gas operators to (see pages 7-8 at above link):
- Design and implement a casing and cementing program that follows best practices and meets performance standards to protect and isolate usable water, defined generally as those waters containing less than 10,000 parts per million of total dissolved solids (TDS);
- Monitor cementing operations during well construction;
- Take remedial action if there are indications of inadequate cementing, and demonstrate to the BLM that the remedial action was successful;
- Perform a successful mechanical integrity test (MIT) prior to the hydraulic fracturing operation;
- Monitor annulus pressure during a hydraulic fracturing operation;
- Manage recovered fluids in rigid enclosed, covered or netted and screened above-ground storage tanks, with very limited exceptions that must be approved on a case-by-case basis;
- Disclose the chemicals used to the BLM and the public, with limited exceptions for material demonstrated through affidavit to be trade secrets;
- Provide documentation of all of the above actions to the BLM
The BLM initially proposed these rules in 2012 and opened them to public comment. As you would expect, there has been extensive comment from both the oil and gas industry and the public. The rules will take effect this summer, 90 days after they are published in the Federal Register.
A welcome step forward
The rules are a positive step forward in the effort to make fracking responsible for protecting the public, and we have argued for most of these reforms on this site.
The requirement to monitor, report and fix problems with well casings recognizes a major issue with fracking — cement casings leak and can contaminate soil and water. The requirement to hold produced water in tanks instead of ponds is also welcome.
The improvement of reporting requirements is also positive. Oil and gas companies will be required to disclose the chemical composition of their fracking fluids within 30 days of finishing a drilling operation. The “trade secret” provision, a key element of the Halliburton Loophole, is tightened but not closed. Companies can still claim trade secrets, but must submit an affidavit to prove this.
The BLM noted that it is negotiating a memorandum of understanding (MOU) with the organization that manages FracFocus. Under the MOU, FracFocus will notify the BLM each time chemical disclosures are uploaded on the site. The rules require companies with operations on federal land to follow state and federal disclosure requirements; however, if the state regulation is stricter, the state can request a variance that requires operators to comply with the stricter state rule. Companies will also have to submit additional information to the BLM concerning wellbore geology, fault and fracture locations, water depths, the volume of fluids used, and the direction and length of fractures.
But not enough to protect the Beartooth Front
While the new rules are a positive step, they are not enough to protect us along the Beartooth Front for several reasons:
- The rules apply only to drilling on federal land, not on private property, so they would not apply to any drilling in the Silvertip area in Carbon County or along the Fishtail-Dean-Nye corridor in Stillwater County.
- There is no guarantee the rules will ever be put into place. The Independent Petroleum Association of America and Western Energy Alliance have complained about the BLM’s estimate of a cost of $11,700 per well to comply with these regulations (between 0.13% and 0.21% of average drilling cost per well), and have already filed suit to challenge the regulations.
- The BLM has not proven to provide effective enforcement of the rules it already has on the books. We have documented what a poor job the agency does of inspecting injection wells, and, without proper oversight, operators will not comply.
- The rules do not address many issues raised by local landowners as necessary to protect their properties: regular water, air and soil testing; setbacks of wells from residences; and the maintenance of local infrastructure are key areas not addressed by these rules.
We should applaud and welcome the many positive steps we have seen recently: the new BLM rules, laws limiting fracking in many states and localities, and substantial advances in the scientific documentation of the risks of fracking.
The evidence is clear. Congress is not going to pass legislation that regulates the oil and gas industry, and federal agencies such as the EPA and BLM have been completely unable to resist the power of the industry to curtail their efforts. And the Montana legislature has demonstrated over and over that it is not willing to do anything to regulate or monitor oil and gas activity in the state.
It is up to local communities to protect their water, their health, and their way of life.
That is why landowners in Carbon and Stillwater counties are working so hard to implement citizen-initiated zones. These are efforts we should support as responsible approaches to oil and gas drilling. They can take effect now, while we wait for years and years for Washington and Helena to take action.