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Welcome to PSR's Environmental Health Policy Institute, where we ask questions -- then we ask the experts to answer them. Join us as physicians, health professionals, and environmental health experts share their ideas, inspiration, and analysis about toxic chemicals and environmental health policy.

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Common-Sense Bills Would Close Unwarranted Loopholes for Fracking

By Sammy Roth

Our nation is experiencing a rush of oil and gas drilling—a rush largely brought about by the use of fracking. Fracking is an inherently risky drilling technique that involves pumping water, sand, and chemicals deep underground to create cracks in shale formations and release the natural gas trapped inside, and it poses significant risks to human health and the environment. Fracking and gas production have poisoned our waterways with toxic and radioactive chemicals, contaminated our air with carcinogens and climate-disrupting carbon pollution, and turned quiet communities and natural landscapes into noxious industrial zones. Families and communities unlucky enough to live near fracking sites have been exposed to pollutants associated with cancer, respiratory diseases, reproductive problems, neurological damage, and other serious illnesses.

Yet despite these serious impacts, the oil and gas industry has been given unwarranted, unnecessary loopholes in seven of our nation’s bedrock environmental laws—laws with which other industries must comply. Oil and gas companies are exempt from key provisions of the Clean Water Act, the Clean Air Act, the Safe Drinking Water Act, the Resource Conservation and Recovery Act, the Superfund law, the National Environmental Policy Act, and the Emergency Planning and Community Right-to-Know Act.

Oil and gas production is taking place in more than 30 states, and millions of Americans live, work, play, and attend school on or near lands being fracked for natural gas. Since no state has adequate fracking regulations in place, the seven federal loopholes mean that families have no real safeguards against the dangers of fracking and related activities—and few effective ways to seek legal recourse against gas companies that harm them.

Fortunately, legislation has been introduced to close the oil and gas industry loopholes in four of those statutes. These common-sense bills would ensure that fracking and gas development are held to the same health and environmental standards as other potentially harmful industrial activities:

  • The FRAC Act (H.R. 1921, S. 1135) would close the loophole in the Safe Drinking Water Act (SDWA) that excludes fracking from the SDWA’s Underground Injection Control Program (UIC). The UIC Program exists to protect groundwater aquifers, but in 2005 fracking was exempted from the program’s permitting requirements, unless diesel is used in the fracking fluid. This dangerous loophole leaves drinking water resources unprotected under the SDWA from the hundreds of chemicals potentially used in fracking.

Despite carefully parsed industry claims that the fracturing of shale rock has never been proven to contaminate groundwater, many people have suffered from drinking water contaminated by fracking and gas production. Across the country, communities have seen their water turn brown after the start of fracking operations nearby, and many families have suffered from headaches, nausea, difficulty breathing, intestinal illnesses, and inflammation of the skin and eyes. It’s impossible to know how many people have been harmed by gas-related drinking water contamination, largely because most states don’t require the disclosure of fracking chemicals.

The FRAC Act would mandate that groundwater be protected from fracking under the SDWA. It would also require companies to publicly disclose the chemicals used in fracking.

  • The BREATHE Act (H.R. 1154) would close a loophole in the Clean Air Act (CAA) that allows the emission of significant toxic air pollution from oil and gas exploration and production. Under the CAA, the Environmental Protection Agency sets emissions standards for major sources of Hazardous Air Pollutants. Ordinarily, where a number of nearby sources emit HAPs, the EPA aggregates these emissions to determine whether, collectively, they cross the major source threshold. The oil and gas industry, however, is exempt from this aggregation requirement. The result is that many individual wells and related facilities can operate in close proximity, emitting enormous amounts of dangerous air pollutants without having to worry about exceeding the major source threshold.

Researchers have found elevated levels of smog, methane, and volatile organic compounds where gas production is taking place, and people living close to drilling sites face a heightened risk of emissions-related health impacts. Fracking also requires huge quantities of super-fine sand, and inhaling silica particles from this sand can cause deadly diseases like silicosis and cancer. Drilling is also a significant source of hydrogen sulfide, which was removed from the list of HAPs regulated under the CAA despite the fact that it can cause vomiting, difficulty breathing, and irritation of the eyes, nose, and throat.

The BREATHE Act would ensure that oil and gas companies are subject to the CAA’s aggregation requirement. It would also add hydrogen sulfide back to the list of HAPs.

  • The FRESHER Act (H.R. 1175) would close the loophole in the Clean Water Act (CWA) that endangers water quality near oil and gas production activities. Under the CWA, a permit is required for large-scale, ground-disturbing activities that increase stormwater runoff and exacerbate the risk of water pollution. This important permitting requirement, however, has been waived for oil and gas production and the construction of oil and gas well pads, even though runoff from these activities can be contaminated with sediment and dangerous pollutants. Such runoff can degrade water quality, damage aquatic habitats, and increase municipal water treatment costs.

The FRESHER Act would take the simple, important step of requiring oil and gas drillers to apply for stormwater permits. It would also mandate a study on the effects of oil and gas production on groundwater.

  • The CLEANER Act (H.R. 2825) would close the loophole in the Resource Conservation and Recovery Act (RCRA) that prevents adequate regulation of hazardous wastes from oil and gas production. RCRA requires companies that create, store, transport, dispose of, or otherwise handle solid or hazardous wastes to apply for permits. But a loophole in the law has allowed the EPA not to categorize fracking fluids as “hazardous” waste, leaving them subject to the much weaker “solid” waste standards. Agency officials made that decision even though EPA staff found pollutants in drilling fluids—including benzene, lead, arsenic, and uranium—at levels exceeding 100 times agency standards.

As a result of this exemption, fracking wastes—which can contain toxic fracking chemicals, chemically laden produced water, and naturally occurring radioactive materials—are often mismanaged. Gas companies frequently store harmful waste in open pits, which, if poorly constructed, can leak fluids into the surrounding soils and waterways. Open pits are also liable to overflow, especially in rain-prone areas.

The CLEANER Act would ensure that fracking waste is regulated as hazardous waste under RCRA—as it should be.

These commonsense pieces of legislation are staunchly opposed by the gas industry, but momentum for the bills is building, with more than 200 local, regional, and national organizations—including the Sierra Club, Physicians for Social Responsibility, the National Resources Defense Council, and the League of Conservation Voters—urging their passage. Another recently introduced bill—the SHARED Act (H.R. 2983)—would require gas companies to test water quality before, during, and after fracking operations occur.

As fracking and natural gas production expand rapidly—and as Americans grow increasingly concerned about the health and environmental threats posed by this poorly regulated industry—it is long past time to close these egregious, outdated, and unnecessary loopholes. Passing these bills wouldn’t make fracking safe, but it would be an important first toward ensuring that our nation’s energy development is consistent with the health and safety of our families and communities.

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