Oil companies, environmentalists, hunters and state regulators are weighing in on new federal mandates proposed for hydraulic fracturing and drilling on public lands.
Today is the deadline for commenting on the Bureau of Land Management’s proposed rule, and submissions were still streaming in this morning.
Here is a sampling of some of the last-minute submissions:
The Center for Biological Diversity:
- “Nationally, fracking, drilling, and the resulting toxic wastewater have developed an extensive track record of spills, accidents, leaks, pollution, and property damage. The damages from fracking and drilling to air, water, wildlife, and health have been severe, and often irreversible. … Moreover, fracking for shale oil and gas will undermine our greenhouse gas reduction goals.”
- “We urge you to replace the proposed rule with a simple prohibition on fracking on public lands. Unfortunately, the revised proposed rule takes the agency in exactly the opposite direction, weakening the already insufficient protections originally proposed last summer.”
- The new rule proposal — unlike the 2012 version — wrongly applies only narrowly to hydraulic fracturing. The result is that existing acidizing techniques for stimulating production — a process that helps dissolve limestone and other reservoir rock — would not be covered by the rule. “The public health, safety, and environmental concerns that stem from hydraulic fracturing also apply to other forms of well stimulation and enhanced oil and gas recovery. … Acidization typically uses extremely toxic and dangerous chemicals such as hydrochloric acid, hydrofluoric acid, formic acid, and acetic acid. Excluding this dangerous procedure from regulations despite its similarities to hydraulic fracturing would be misguided.”
- In drafting the proposed rule, regulators failed to consider an alternative option: how banning fracturing altogether might mitigate climate change, benefit wildlife, eliminate harmful air emissions, and mitigate possible increases in seismic activity tied to wastewater disposal.
The Texas Railroad Commission:
- “Texas has very little federal land; however, we offer these comments in the interest of sound science and good government, particularly as federal regulations sometimes are viewed as ‘standards’ simply by virtue of being ‘federal.'”
- The Bureau of Land Management rightly recognized the impracticality of applying “one standard across large areas of the United States” by allowing the agency to waive the mandates in certain states or tribal regions if the bureau determines they meet or exceed the new federal standards. “The uniqueness of each basin must be taken into consideration when regulating oil and gas development. Standards and requirements should be based on real risk, accepted science, and proven engineering practices, as well as acknowledged differences between regions based on geography, geology, hydrology, and historic conditions.”
- Although the proposed rule would allow companies to shield trade secret information, unless the bureau specifically requests it, the measure “would allow only a 10-day notice of a decision by BLM before information would be released to the public.”
- “We agree with BLM’s revised proposal to replace the term “well stimulation” with the term “hydraulic fracturing” throughout the proposed rule. The term “well stimulation” includes acidizing, while the term “hydraulic fracturing,” does not include acidizing or enhanced recovery activities. Acidizing operations should not be subject to the same requirements as hydraulic fracturing operations.”
- “Although this most recent proposal eliminates many requirements that would delay the processing of applications and approval to drill and perform hydraulic fracturing, the proposed revised rule will still cause further delay in drilling for and producing resources.”
North Dakota Petroleum Council:
- “The proposed … rule is unnecessary and only serves to add an additional burdensome and duplicative regulatory layer to an already complex set of federal regulations that govern oil and gas development on federal and Indian lands. The benefits of applying additional regulation does not outweigh its costs as there is no confirmed instances of hydraulic fracturing impacting underground sources of drinking water and therefore no protective advantage realized to the environment.”
- “Redundant rules only serves to distract the attention of federal employees from their critical work of ensuring responsible energy development on federal lands. This rule does not provide clear benefit to the environment.”
American Petroleum Institute:
- “API is concerned that this proposed rule is a solution in search of a problem, an attempt to throw the regulatory apparatus of the federal government over an issue solely to address unsubstantiated “public concern.”
- The rule is unnecessary because there have been no confirmed instances of hydraulic fracturing effecting groundwater. While the Bureau of Land Management says the primary goal of the proposal is to prevent negative effects to federal or Indian resources, including groundwater, the agency “fails to cite even a single example of any such negative impacts to groundwater from the over 1 million hydraulically fractured wells…anywhere in the country.”
- The bureau has not done any kind of gap analysis to prove there is “a regulatory void that the proposed rule must fill. In fact, because the proposed rule significantly conflicts with existing federal and state regulations, its adoption would create regulatory uncertainty and confusion. Such uncertainty would very likely delay development or drive it off of federal lands, and could even reduce the overall safety of oil and gas development on federal lands.”
- While the Bureau of Land Management sought to address concerns with its May 2012 approach to “usable water” that would have to be safeguarded, the new definition “creates further ambiguity.”
- The new requirements on existing leases could open the government to breach of contract claims. “The proposed rule imposes new obligations on existing BLM lessees beyond what they bargained for in acquiring their lease contracts.” Applying the mandates to existing wells could be tantamount to retroactive rulemaking generally not allowed under federal administrative law. That also could constitute a regulatory taking, prohibited by the Constitution without just compensation.
- The company’s assets include 16.4 million net developed and undeveloped U.S. acres, about 27 percent of which are located on federal and Indian lands.
- Positive changes in the proposed rule, over the May 2012 version, including removing requirements for submitting cement bond logs to the agency before getting approval to fracture a well and allowing operators the “flexibility” to use the industry-backed FracFocus registry for disclosing chemicals used at the sites.
- Permit reviews need deadlines. “The rule requires that a proposal for hydraulic fracturing or refracting be submitted by the operator and approved by the (bureau) before commencement of such operations.” If that proposal is submitted as part of an application for a permit to drill, it is subject to existing deadlines imposed under a 2005 energy law. However, whenever hydraulic fracturing proposals are submitted separately, there is no time constraint on the bureau’s review. The agency should “establish a procedure that includes definitive deadlines for either approval,” or rejections or requests for additional information. “Under most circumstances, such approval should be granted by (the bureau) in 10 days or less, but no more than 30 days.”
Americans Against Fracking:
- “Aggressive cuts in greenhouse gas emissions are essential if we are to successfully avoid catastrophic changes in the stability of our climate. Failing to achieve these cuts will severely impact the quality of life of our children and grandchildren.” Embracing hydraulic fracturing for natural gas takes us in the wrong direction. “While it is true that burning natural gas instead of coal or?oil reduces, to some extent, carbon dioxide emissions, carbon dioxide is not the only type of carbon emissions that result from natural gas development. Methane, the primary constituent of natural gas, is a potent greenhouse gas.”
- “Doubling down on unconventional natural gas development all across our?country does little if anything to address carbon dioxide equivalent emissions, and may even make matters worse. And of course there has never been any pretense that?widespread drilling and fracking for oil is anything but a disaster for our climate.””Beyond the impacts on climate, drilling and fracking on federal lands threaten some of our most treasured natural places.”
- “Drilling and fracking for oil and natural gas on public lands will not serve the best interests of our children and grandchildren. We urge you to ban fracking on all federal lands.”
Sen. Michael Enzi, R-Wyo., Sen. John Barrasso, R-Wyo., Rep. Cynthia Lummis, R-Wyo.:
- “States are best positioned to regulate hydraulic fracturing. … State regulations are a solution that is working for the people of our nation’s public land states. They should be supported, not supplanted, by the administration.”
- We believe that (the bureau’s) proposed rule will significantly delay oil and gas permitting, and in turn discourage oil and gas production on our nation’s public lands.” This is a particular concern for public land states, which already “face a number of challenges relating to the management of land and minerals within their borders,” because “those looking to gain access to our nation’s public lands must comply not only with state law, but also with federal law.”
- “This rule is fundamentally flawed because it approves use of the FracFocus website to satisfy the growing public call for transparency regarding the chemicals used.” Reports submitted to the chemical registry are available as PDFs, rather than as machine-readable data that allows for easier analysis and bulk processing, the intent of an executive order President Barack Obama issued in May. With more than 40,000 chemical disclosure reports now on the site as non-editable PDF files, it would take a typical user 12,255 hours of “tedious, repetitive manual work, or almost six years of full-time effort,” to extract the existing data.
- “The ‘Website Terms and Conditions of Use’ statement on the FracFocus website is unreasonably restrictive, explicitly forbidding users from sharing the chemical disclosure reports. This condition exerts a chilling effect on those who want to share information with their friends and neighbors; and on scientists, citizens organizations, and government agencies that want to aggregate the data for scientific research, public education, or regulatory compliance purposes.” This individual disclosure documents archived at FracFocus don’t have permanent web links. Without a permanent web link — along with the prohibition on sharing the individual PDFs — “users have no way to reference or share the information archived at FracFocus.”
- “Accurate, timely and comprehensive information about the chemicals used in hydraulic fracturing” is necessary for homeowners who want to know what might contaminate their groundwater, municipal water managers who want to predict the regional impact of drilling activity on the public water supply, emergency management officials who want to know what is transported through their communities, scientific researchers who study trends in drilling and local investigators wanting to ensure chemical usage information is being accurately disclosed as required.
- Given the “substantive problems with relying on the FracFocus platform, including excessive and unrestrained use of the trade-secret exemption,” the Interior Department should “take responsibility for curating and publishing the information and data pertaining to hydraulic fracturing operations on public lands. We believe this could be done without replacing FracFocus as the platform for collecting disclosure reports from industry, avoiding the undesirable outcome of requiring operators to submit multiple, redundant reports.”
The Wilderness Society:
- “We believe that there are some places that are a too special to drill or subject to hydraulic fracturing, though we recognize that this kind of activity as one of the multiple uses of public lands envisioned under the Federal Land Policy and Management Act. Where hydraulic fracturing takes place, we want to ensure that it is conducted pursuant to robust standards that will protect the many values of our public lands.”
- A patchwork of state regulations is insufficient. “Based on experience to date regarding hydraulic fracturing, if the states alone regulate these operations, there will be gaps in those standards … and inadequate stringency or delays in implementation in states with powerful hydraulic fracturing interests.”
- The rule should include a requirement for disclosing fracturing fluid chemicals before commencing the activity. “Pre-fracturing public disclosure is important to allow land owners, public land managers, and users of nearby water sources to conduct independent baseline water quality testing to determine if water resources are uncontaminated or if they contain any of the chemicals planned to be injected during hydraulic fracturing. If specific chemical data are not provided until after hydraulic fracturing occurs, a concerned person would not know which chemicals may have been used and therefore which analytical tests should be performed.”
- The bureau should not allow “operators to store recovered fluids in lined pits” instead of enclosed tanks, as under the proposal. “The use of temporary surface impoundments or pits results in large-scale surface disturbances, increased air emissions, and provides an opportunity for wildlife to become contaminated and injured. Pits also have the potential for leakage to occur through or around their liners, or for overflow to occur during periods of heavy precipitation, impacting surface waters and the subsurface. Liners, by their very nature, eventually will leak.”
Independent Petroleum Producers of America and the Western Energy Alliance:
- “Sixteen months into the rule making process, (the bureau) remains unable to provide a supportable reason to impose its additional layer of regulations on top of those laws States already enforce. For the high cost this rule will impose on the industry – $345 million per year – what benefit will the public receive? For the disincentive this rule will create to invest in federal and tribal oil and gas leases, to whom will the tribes and the taxpayers turn for the lost leasing and royalty revenue? (The bureau) has been unable to answer these questions. (The bureau) should recognize that states are already regulating hydraulic fracturing admirably. The only imperative to adopt this rule is an arbitrary desire ‘to do something.'”
- The bureau “cannot point to a single instance where there was an environmental problem related to hydraulic fracturing that (the) proposed rule would have prevented where state regulation did not adequately address the issue. So the problem with BLM’s position is not simply that states have hydraulic fracturing rules on the books, but rather that the proposed rule does not provide any benefit commensurate with the costs it will impose. (The bureau) has no evidence that its costly proposed rule will be any more effective in practice than state regulations protecting water and other environmental values.”
- The total costs of the rule have been “underestimated.” Although the federal government estimated the rule would hike costs by as much as $5,011 per well, a study commissioned by the associations concluded that the added cost would be about $97,000. “We believe the total costs for the rule are likely to be on the order of approximately $345 million per year or more.”
- ” Currently, state oil and gas agencies and BLM field offices identify the formations that must be protected. This is effective and cost-efficient and should not be changed. Operators should not be required to submit total dissolved solids data or otherwise identify usable water zones,” as the proposed rule would require.
- New requirements for cement evaluation logs and provisions mandating repair of cement jobs could cause more harm than good. Cement evaluation logs “are not needed for casing strings for which cement is circulated to surface.” Further, “the cement repair provisions in the proposed rule rely improperly on an easily-triggered single indicator’ of inadequate cement, overemphasize qualitative cement evaluation log data, and do not account for the full suite of diagnostic indicators operators consider to determine whether repairs are needed.” Even when the data suggests a cement job may be inadequate, operators should be allowed to pursue other methods before being required to perforate the casing and perform remedial cementing. “Cement repair should not be the remedy of first resort.”
- The process for waiving some states and other areas is unclear. “We are also concerned … that the agency may revoke or amend granted variances based on a policy change or for other reasons.”
National Association of Manufacturers:
- The Bureau of Land Management should withdraw the proposed rule in favor of allowing states to continue their own regulatory programs. “States have long been the primary regulators of hydraulic fracturing and have done so safely for decades. States are also continually improving their regulations.”
- The proposed federal regulations could jeopardize domestic production of oil and natural gas, with the only justification that the rapid expansion of hydraulic fracturing is causing “public concern.”
- “Hydraulic fracturing is driving demand for more chemical, metal, and industrial products to be manufactured in the United States — a trend manufacturers do not want to see thwarted by new regulatory costs or burdens.”
- “Shale oil and gas development through hydraulic fracturing has unlocked tremendous benefits for manufacturers and the millions of Americans who work in the U.S. manufacturing sector. Manufacturers consume one-third of the nation’s energy and depend on oil and gas for feedstock and energy needs; for these reasons, the unconventional oil and gas renaissance is making manufacturers more competitive.”
- “Duplicative hydraulic fracturing regulation would harm any potential gains resulting from increased exploration, development, and production of shale oil and gas.”