National Conference of State Legislatures (NCSL) - Fracking Update: What States Are Doing to Ensure Safe Natural Gas Extraction

By Jacquelyn Pless

Hydraulic fracturing, a technique used to extract natural gas from deep shale formations, has been employed for decades. However, technology advancements are enabling access to vast quantities of previously unrecoverable natural gas in regions where it is not a familiar practice. While some argue that more oversight is necessary to protect public health and the environment, others believe that it’s already adequately regulated. At the federal level, hydraulic fracturing is exempt from the underground injection control program requirements set forth in the Safe Drinking Water Act. Congress is considering legislation known as the FRAC Act though, which would remove this exemption and require public disclosure of chemicals used in fracking. State lawmakers are also exploring more stringent requirements to assure that new natural gas resources are developed safely.

Since October 2010, more than 100 bills across 19 states have been introduced relating to hydraulic fracturing for natural gas. The most active states include New York and Pennsylvania.  This explosion of recent attention is largely attributed to fracking in regions where it is not as familiar to the affected communities, such as in the Marcellus Shale region. 

Fluid Monitoring and Disclosure of Chemical Additives in Fracking Fluid

The most prominent recent trend in state legislation is an attempt to require chemical disclosure, along with other fluid regulation such as proper disposal and additive stipulations.

In September 2010, Wyoming became the first state to require full disclosure of fracking chemicals, which was set forth in a rule approved by the Oil and Gas Conservation Commission. At least two states have followed Wyoming’s lead. Michigan’s Department of Environmental Quality issued a rule requiring lists of chemical additives, including the volumes used, to be submitted to the Department of Environmental Quality. Most recently, Texas legislators enacted a law that requires public disclosure of fracking fluid chemical constituents.

Many other states have considered similar bills, including:  

• Arkansas—House Bill1396 (withdrawn) would have required public disclosure.
• California—Pending AB 591 would require public disclosure.
• Illinois—Senate Bill 664, pending, would require chemicals to be listed on the internet.
• Indiana—House Bill 1049, which failed,would have required drilling operators who perform fracking to disclose constituents, but only to disclose proprietary formulas in the event of a medical emergency.
• Maryland—House Bill 411 and SB 422, which died, would have required chemicals and materials to be identified in a report submitted by the Department of the Environment to the Joint Committee on Administrative, Executive, and Legislative Review.
• Massachusetts—Pending HB 3055 would require fluids to be identified and described in a report.
• New York—Senate Bill 425 (which died) would have required chemical disclosure. Other similar bills in New York, both pending, include AB 6426 and SB 1234.
• Pennsylvania’s pending SB 425, HB 971, SB 680 and HB 1680 would each require chemical disclosure of some form.

Other related legislation to note:

• New York’s SB 425 (which died) also would have prohibited the use of fluids containing chemical substances that pose risks to human health. Assembly Bill 1265, pending, would prohibit the use of toxic fracking solutions, and AB 2922 relates to regulating fluids. On the other hand, Senate Bill 3765 states that any contract relating or referring to hydraulic fracturing shall prohibit the disclosure of chemicals used.
• Another pending bill in New York (AB 300) would establish a moratorium on disposal of fluids used in hydraulic fracturing that occurs outside of the state until 120 days after EPA’s report is released.
• Pennsylvania’s pending SB 127 would require chemicals and surface impounds to be monitored.

Other Water Use and Quality Legislation

At least six states considered 14 bills and resolutions to protect public water supplies, limit water withdrawal, require water quality testing and regulate waste disposal.

A bill that failed in Indiana, HB 1049, would have required certain drilling operators to submit an environmental compliance plan for review and approval. Chemical constituents of fracking fluid would be disclosed.

New Jersey’s pending SJR 60 and AJR 61 would urge Delaware, New York, and Pennsylvania to join New Jersey in disapproving requests to withdraw water for hydraulic fracturing and enacting hydraulic fracturing bans.

In Michigan, pending HB 4763 creates a liability presumption for groundwater contamination. If groundwater near a well contains at least one hazardous substance that was injected during the hydraulic fracturing process, the person conducting the procedure is liable.

Two bills in New York address hydraulic fracturing near a public water supply. Senate Bill 1230 would prohibit permits to be issued for hydraulic fracturing in oil or gas wells within ten miles of the New York City water supply infrastructure. Pending SB 1234 would also prohibit fracking near a watershed.

A few pending bills in N.Y. relate to waste; Senate Bill 4251 and AB 7283 would require waste from hydraulic fracturing operations to be tested for radioactivity, and another bill would require sample gathering to determine flow rates and to identify compounds or contaminants of concern. Assembly Bill 7072 directs the Commissioner of the Department of Environmental Conservation to set regulations requiring wastewater screening to avoid harming sewage treatment works. Assembly Bill 7986 (pending) would require permit holders to test groundwater prior to and after drilling wells.

In Pennsylvania, pending HB 232 relates to wastewater disposal and calls for a cumulative impacts study. Senate Bill 596 would establish the Emergency Drinking Water Support fund, which would pay for testing well water and purchasing clean water for residents and businesses that have reason to believe their well water is contaminated from either an accidental spill, or seepage of chemicals or natural gas dislodged by fracturing operations. House Bill 1565 would require a chemical analysis of recycled wastewater generated by oil and gas activities during storage.

Also in Pennsylvania, House Bill 230 would prohibit hydraulic fracturing within 2,500 feet of a water well, lake, reservoir, spring, impoundment, or the permitted intake of a stream that serves as a primary source for a community water system. House Bill 1211 would prohibit permit issuance for high-volume hydraulic fracturing unless located at least 2 miles from the nearest well. House Bill 232 addresses well permits and location restrictions, while HB 234 stipulates well reporting requirements. House Bill 1645 (also pending) aims to protect fresh groundwater and sets casing requirements to protect water supplies.

West Virginia’s House Bill 2403 (which failed) would have required gas well operators to submit information to the Office of Oil and Gas—such as anticipated withdrawal, type of water source, planned management of wastewater, lists of additives, and more—if water withdrawals for fracturing or stimulating gas production exceed 210,000 gallons a month.

Well Regulation and Inspection

State lawmakers in at least three states want to require well inspections and spacing between wells. In Arkansas, HB 1392 (withdrawn) would have created a program for annual inspection of gas wells to analyze the effects of the chemicals used. New York’s pending AB 3579 would require the operator to provide additional financial security for wells greater than six thousand feet in depth, and for which hydraulic fracturing fluid is used. Pennsylvania’s pending SB 425, HB 971 and SB 680 address well permits and location restrictions, and determine well plugging funds, enforcement and civil penalties.

Air Quality

Natural gas operations can produce smog-forming pollutants. A recent study found a 25 percent incidence of childhood asthma, more than three times the state rate, in certain counties of Texas where some of the heaviest drilling occurs.[1] In Arkansas, HB 1395 (withdrawn) aimed to protect air quality in the vicinity of natural gas drilling fields.

Fracking Moratoria

Some state legislators are trying to ban hydraulic fracturing until more is known about its potential impacts and what techniques may effectively protect public health and the environment. New York implemented a ban on high-volume, horizontal hydrofracking until July 2011. The Assembly recently passed a bill (AB 7400), which awaits Senate approval, that would extend the moratorium for another year. In West Virginia, hydraulic fracturing is banned in Morgantown and within one mile of the city’s limits.

In Maryland, SB 634 and HB 852, which failed, would have prohibited the Department of the Environment from issuing permits for drilling in the Marcellus Shale until certain conditions are met. The applicant would have had to demonstrate that the drilling and operation of wells would not impair the sustainability, water quality, or potability of ground and surface water. This comprehensive bill would have required fracking fluid to only contain additives that have been approved by the department, and proper treatment and disposal of flowback water. Monitoring and emergency plans would have been implemented.

In New Jersey, two pending bills (AB 3313 and SB 2576) declare that fracking for natural gas exploration and production has been found to use a variety of contaminating chemicals and materials that can enter surface and ground water. The bills would prohibit hydraulic fracturing. Also pending, SB 2582 and AB 3653 would establish a moratorium on hydraulic fracturing for natural gas until the U.S. Environmental Protection Agency concludes its study and issues findings. The moratorium would continue until the department determines that the findings warrant an end. Two resolutions in New Jersey, SJR 59 and AJR 67 urge New York, Pennsylvania and Delaware to enact similar moratoria.

Similarly, New Jersey’s pending AB 3314 and SB 2575 would prohibit the New Jersey member of the Delaware River Basin Commission from supporting the use of hydraulic fracturing for natural gas exploration and production.

Numerous other pending bills in New York would prohibit or suspend fracking. A few to note include:

• SB 1230 would establish a moratorium on permit issuance for drilling of new wells.
• AB 5547 would establish a moratorium on fracking for natural gas or oil until 120 days after EPA issues its report on the effects on water quality and public health.
• AB 6541 would enact the Look Before You Leap Act of 2011 to establish a 5-year moratorium on high volume hydraulic fracturing.
• AB 5677 would prohibit fracturing and horizontal drilling for natural gas or oil on land operated by the office of parks, recreation and historic preservation, and within one mile thereof.
• SB 4220 and AB 7218 would prohibit the use of hydraulic fracturing for oil and gas extraction altogether.

Federal vs. State Regulation

Hydraulic fracturing is currently exempt from the underground injection control program requirements applicable to class II oil and gas related wells set forth in the federal Safe Drinking Water Act, except for when diesel fuels are used. Three states, Massachusetts, New Jersey and Pennsylvania are considering legislation related to this exemption. At least two more states, Kansas and North Dakota, are considering legislation that addresses states’ rights.

Massachusetts’ House Bill 3055 (pending) would require compliance with EPA’s underground injection control program requirements. New Jersey adopted AR 112, which urges enactment of H.R. 2766, known as the Fracturing Responsibility and Awareness of Chemicals Act of 2009. The federal FRAC Act repeals the exemption for hydraulic fracturing under the federal Safe Drinking Water Act and requires disclosure of chemicals used during hydraulic fracturing. Pennsylvania’s HR 296 (pending) also memorializes Congress to pass the FRAC Act.

On the other hand, some are concerned about the federal government preempting states’ rights to regulate hydraulic fracturing. In Kansas, a pending concurrent resolution (HCR 5023) would urge Congress to preserve the primacy of the Kansas Corporation Commission to regulate hydraulic fracturing in compliance with state regulations and to not enact legislation that would remove this primacy. Kansas adopted HR 6025 which urges Congress to permit the KCC to regulate hydraulic fracturing. North Dakota adopted a concurrent resolution (HCR 3008) urging Congress to clearly delegate responsibility for regulating hydraulic fracturing to the states.

Comprehensive Legislation

Some states are considering bills that span various aspects of hydraulic fracturing regulation. For instance, pending in California, AB 591 would include hydraulic fracturing in state policy and require the district deputy for oil and gas production in each district to map wells that use hydraulic fracturing. Production facilities would have to compile lists of chemicals used and minimum facility maintenance standards would have to be prescribed.

In Illinois, Senate Bill 2058 (pending) would amend the Drilling Operations Act to require permit applications to extract natural gas from shale using well stimulation fluids, which would have to be approved by the Department of Natural Resources prior to extraction. Well owners and operators would have to provide specific information about the formation depth, geological characteristics, stimulation fluid additives and compounds, and more.

A pending bill in New York, SB 1234, would amend the environmental conservation law concerning natural gas drilling. It would require hydraulic fracturing material disclosure, protect environmental resources, and address enforcement and financial security. Natural gas drilling within 5 miles of the NYC watershed—and other locations where groundwater contributes a significant flow to drinking water sources—would be prohibited. All materials would have to be reported when applying for a well permit, and spills or prohibited fracking compound discharges would have to be reported. AB 6426 would regulate drilling in similar ways.

New York’s SB 893 and AB 2108 (both pending) would establish a Natural Gas Exploration and Extraction Liability Act of 2011, and AB 2924 would require an environmental impact statement for any natural gas or oil drilling involving hydraulic fracturing fluid. Senate Bill 2697 (pending) aims to ensure that hydraulic fracturing practices are sustainable and safe. Also pending in New York, AB 7172 would create a temporary state commission on the economic costs and benefits of hydraulic fracturing in the state.

Three pending comprehensive bills in Pennsylvania (SB 425, HB 971 and SB 680) would amend the Oil and Gas Act relating to well permits, well location restrictions, and water supply protection. The bills address fracking chemicals, surface impoundments, fluid monitoring and use of surface impoundments for temporary flowback storage. They would establish well plugging funds, enforcement and civil penalties.

State Legislative Oversight of Fracking is Likely to Grow

Although hydraulic fracturing has been used for decades and can help access massive quantities of domestic resources, state lawmakers continue to debate the extent to which the practice should be regulated. As fracking continues its expansion into regions where residents are not accustomed to resource extraction, such as near the Marcellus Shale, legislative action is likely to increase. States continue to work towards balancing the economic benefits of accessing new resources with protecting public health, drinking water, and the environment.

More information on chemical use and regulation for fracking:

In April 2011, the Ground Water Protection Council and the Interstate Oil and Gas Compact Commission joined forces to create “FracFocus,” a hydraulic fracturing chemical registry website that allows the public to locate wells and identify what chemicals are used, and to navigate fracking regulations by state. This non-governmental site can be accessed by visiting www.fracfocus.org.

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