Fracking and Federal Clean Water Legislation (US)

Information on US federal regulation of water impacts is found here.

Per the USEPA – water is an integral component of the hydraulic fracturing process and the USEPA Office of Water regulates waste disposal of flowback and sometimes the injection of fracturing fluids as authorized by the Safe Drinking Water Act and Clean Water Act.

The USEPA’s central authority to protect drinking water is drawn from the federal Safe Drinking Water Act (SDWA).

The protection of underground sources of drinking water (USDWs) is focused in the EPS’s Underground Injection Control (UIC) program, which regulates the subsurface emplacement of fluid.

However, the UIC authority (SDWA § 1421(d)) is altered by the Energy Policy Act of 2005:

“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 of storage; and
(ii) the underground injection of fluids or propping agents (other than diesel fuels) pursuant to hydraulic fracturing operations related to oil, gas, or geothermal production activities.”

While the SDWA specifically excludes hydraulic fracturing from UIC regulation under SDWA § 1421 (d)(1), the use of diesel fuel during hydraulic fracturing is still regulated by the UIC program.

Per the USEPA – Any service company that performs hydraulic fracturing using diesel fuel must receive prior authorization through the applicable UIC program.

Information on how the UIC regulations apply to hydraulic fracturing using diesel fuels is found in EPA’s draft Guidance issued 2012 for public comment. The UIC regulations can be found in Title 40 of the Code of Federal Regulations Parts 144-148.

Disposal of produced water flowback into surface waters of the United States is regulated by the National Pollutant Discharge Elimination System (NPDES) permit program. The Clean Water Act authorizes the NPDES program.

Agreement on Nevada Anaconda Tort Case (US)

Residents local to the old Anaconda copper mine in Nevada had filed a class action lawsuit after the federal USEPA investigation determined that uranium, a by-product of the mine, was leaking into groundwater, resulting in “dangerous levels of uranium or arsenic or both” in 79% of wells north of the mine. A US Labour Department review in 2008 also revealed that the clean-up schedule had not been enforced.

The Defendents (the mining company) had moved (in court) to dismiss seven of the ten claims, but the Court had upheld the Residents claim founded in Rylands v Fletcher strict liability. Here is the Court ruling dated 30th August 2011.

Per the ABC news article – Fueled by demand after World War II, Anaconda produced 1.7 billion pounds of copper from 1952-78 at the mine in the Mason Valley, an irrigated agricultural oasis in the area’s otherwise largely barren high desert. The EPA determined over the years that uranium was produced as a byproduct of processing the copper and that radioactive waste was initially dumped into dirt-bottomed ponds that — unlike modern lined ponds — leaked into the groundwater.

BP and Atlantic Richfield, which bought Anaconda Copper Co. in 1978, provided bottled water for free to any residents who want it for several years. But they say uranium naturally occurs in the region’s soil and there is no proof that a half-century of processing metals is responsible for the contamination. Local residents started seeking outside legal help after a new wave of EPA testing first reported by the AP in November 2009 found that 79 percent of the wells tested north of mine had dangerous levels of uranium or arsenic or both that made the water unsafe to drink. One and a half miles away had uranium levels more than 10 times the legal drinking water standard. At the mine itself, wells tested as high as 100 times the standard.

Though health effects of specific levels are not well understood, the EPA says long-term exposure to high levels of uranium in drinking water may cause cancer and damage kidneys.

Per the ABC news article – The companies agree to pay $7 million in property damages and $900,000 to a medical monitoring fund. The final damages will depend on the cost of extending city water supplies to about 200 residents, estimated between $6.5 million and $12.5 million.