When the Republicans held majorities in both the U.S. Senate and the House of Representatives, and President George W. Bush was in office, provisions were included in the Energy Policy Act of 2005 to exempt hydraulic fracturing operations, such as those planned in New York’s Southern Tier, from having to comply with federal Safe Drinking Water Act provisions prohibiting the injection wells used to produce natural gas from contaminating drinking water sources.

Now there is legislation pending in Congress to repeal the exemption and to require oil and gas companies to disclose the chemicals used in hydraulic fracturing operations, but action on the proposal is not imminent.

“We are encouraging the Energy and Commerce Committee to have hearings on this.We are continuing to try to get co-sponsors,” says Jeff Lieberson, chief of staff for Rep. Maurice Hinchey (D-NY) who is a co-author of a bill (H.R. 2766) introduced last June that would require the natural gas industry to keep pollutants out of drinking water aquifers during fracking operations. Of the 435 members of Congress, 50 are co-sponsors of H.R. 2766.

Meanwhile, companion legislation in the Senate, S. 1215, was introduced by Sen. Bob Casey (DPa.) in June. Both New York senators, Charles Schumer and Kirsten Gillibrand, are co-sponsors.

“We are pushing to get it to move. I believe we have talked to the committee about it,” says Bethany Lesser, deputy communications director for Gillibrand. The Senator sits on the Environment and Public Works Committee where the legislation is pending. But the committee is preoccupied with climate change legislation and other issues, Lesser says.

Each bill also would require “disclosure of the constituents used in fracking fluids, while protecting the proprietary formula, much like we require Coca-Cola to list its ingredients, but not its secret recipe,” said Rep. Diana DeGette, author of H.R. 2766, during a House Subcommittee hearing Jan. 20 on the proposed merger of Exxon- Mobil with XTO-Energy. Officials from both companies do not object to disclosing what is in the fracking fluids, but they disagree that hydraulic fracturing contaminates drinking water.

“There have been over a million wells hydraulically fractured in the history of the industry, and there is not one reported case of a freshwater aquifer ever having been contaminated from hydraulic fracturing. Not one,” said Rex Tillerson, chairman and chief executive officer of Exxon-Mobil.

There has not been a comprehensive, formal study, either. But Hinchey secured language in the report accompanying the bill that provides money for the Environmental Protection Agency (EPA) to study the environmental impacts of hydraulic fracturing on drinking water supplies. The EPA is expected to soon commence the study, says Lieberson.

Under current law, fracking operations are largely regulated by the states. In New York, there is a moratorium on natural gas extraction in the Marcellus Shale while the state reviews public comments on regulations for companies extracting gas in the geologic formation extending across much of southern New York.

Susan Riha, director of the New York State Water Resources Institute, points out that in the Finger Lakes area, as well as in the Mohawk and Hudson River basins, all of which are underlain by the Marcellus Shale, there is no regulatory authority governing water withdrawals. New York’s Department of Environmental Conservation does not have adequate staff to mitigate the environmental and drinking water supply impacts of cumulative water withdrawals, she says.

Congress also granted the natural gas industry in 2005 an exemption to the Clean Water Act’s storm water prevention program. “This to me is outrageous,” says David Alberswerth, senior policy director at the Wilderness Society in Washington, D.C. “Every mom and pop operation has to comply with the Clean Water Act but the oil and gas industry — the richest industry in the world — doesn’t have to comply with the EPA’s stormwater program preventing runoff” to limit sediment pollution from construction or operation of oil and gas facilities, he says.

Alberswerth finds it puzzling that the oil and gas industry opposes the pending legislation repealing the exemption in the Safe Drinking Water Act, “since the engineering and technology appear to be available, and widely in use, to prevent the chemical compounds in question from polluting drinking water aquifers.”

In his view, the oil and industry wants to avoid liability in the event of a serious accident.

TAGGED WITH: gas drilling, Marcellus Shale, waste water