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Water, Air, and Shale

Gas: The Law in 10

Minutes

November 4, 2010

L. Poe Leggette

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Fracing a brief legal history

Safe Water Drinking Act

Requires that EPA and EPA-authorized stateshave effective programs to prevent underground

injection of fluidsfrom endangering USDWs LEAF I, 118 F.3d 1467 (11th Cir. 1997)

[H]ydraulic fracturing activities constituteunderground injection under . . . the SDWA.

EPAs contrary interpretation cannot be squaredwith the plain language of the statute and thusmust fall.

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Fracing a brief legal history

65 Fed. Reg. 2,889 (Jan. 19, 2000)

EPA approval of Alabamas UIC Program

LEAF II, 276 F.3d 1253 (11th Cir. 2001)

LEAF filed 2nd case contending that EPAshould not have approved Alabamas

regulation and, rather, should have written a

nationally applicable rule. Court held that EPA need not promulgate a

national rule

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EPA Report - 2004

Evaluation of Impacts to Underground

Sources of Drinking Water by HydraulicFracturing of Coalbed Methane

Reservoirs

Summary: EPA has determined that theinjection of hydraulic fracturing fluids into

CBM wells poses little or no threat toUSDWs

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Energy Policy Act of 2005

SEC. 322. HYDRAULIC FRACTURING.

Paragraph (1) of section 1421(d) of the Safe Drinking Water Act (42U.S.C. 300h(d)) is amended to read as follows:

(1) UNDERGROUND INJECTION.The term underground injection(A) means the subsurface emplacement of fluids by well

injection; and(B) excludes

(i) the underground injection of natural gas for purposes ofstorage; and

(ii) the underground injection of fluids or propping agents

(other than dieselfuels) pursuant to hydraulic fracturing operations

related to oil, gas, orgeothermal production activities.

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The Frac Act

Introduced June 9, 2010 in both House (H.R.2766)and Senate (S.1215)

(a) HYDRAULIC FRACTURING.Section 1421(d)(1) of

the Safe Drinking Water Act (42 U.S.C. 300h(d)(1)) isamended by striking subparagraph (B) and inserting:

(B) includes the underground injection of fluids or proppingagents pursuant to hydraulic fracturing operations related to

oil and gas production activities; but

(C) excludes the underground injection of natural gas forpurposes of storage..

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The Study

March 18, 2010, EPA filed press release

stating that it will conduct acomprehensive research study to

investigate adverse impact that hydraulicfracturing may have on water quality andpublic health

Study expected to continue until 2012.

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Wyoming Required Information for Hydraulic

Fracturing (Rule 45)

Operator must have state approval before well stimulationactivity. Application must disclose:

Stimulation fluid by additive type, such as biocide, corrosioninhibitor, demulsifier, proppant

Chemical compound name and Chemical Abstracts Servicenumber (e.g., for biocide glutaraldehyde; for proppant quartzsand)

Rate or concentration for each additive (e.g., biocide xx gallonsper thousand gallons; proppant xx pounds per gallon)

Description of frac design, such as maximum injection treatingpressure, and estimated fracture length and fracture height.

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Wyoming Required Information for Hydraulic

Fracturing (Rule 45)

Injection of VOCs, such as benzene, toluene, ethylbenzene, andxylene (BTEX) in groundwater is prohibited, but

Injection of BTEX into hydrocarbon zones as part of well stimulationis allowed with prior approval of State.

After the frac, Operator must report total frac volume pumped, stageby stage; plus pressures

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Pennsylvania Required Information for Hydraulic

Fracturing ( 78.122)

Expected to take effect in December 2010

Amended rule expands information required in the wellcompletion report, to include: Description of chemical additives used in the stimulation

fluid, and percent by volume of additives List of hazardous chemicalsused, and percent by volume Total volume of water used

Operator may designate information as a tradesecret or confidential proprietary information, whichmay or may not keep it unavailable to the public