WASHINGTON — Hydraulic fracturing, or “fracking,” used by drillers to release natural gas from underground rock formations, should continue to be regulated by the states, according to industry trade groups and some state regulators.

A proposed new federal law, which would place the fracking procedure under the purview of the Safe Drinking Water Act (SDWA) and enforcement under the US Environmental Protection Agency (EPA), would pose an unnecessary administrative burden on development of gas resources, those groups are saying.

Legislation introduced June 9 by House and Senate Democrats would remove the exemption fracking now has from requirements of the SDWA. The legislation is a response to concerns by some local officials that fluid used in fracking has contaminated or may contaminate drinking water wells, and that current state regulation of fracking is insufficient.

Fracking’s long-time exemption from SDWA regulation was reinforced by specific language placed in the 2005 Energy Policy Act. Congress believed the language was necessary to clarify what gas producers believed was an incorrect ruling in an earlier case in the federal court system, according to Daniel Steinway, a Washington, DC, attorney who represents industries and trade associations who favor continuing fracking’s exemption.

In a recent interview with WaterTech Online®, Steinway said Congress’s original intent in the SDWA was only to regulate the injection of waste materials into the ground, and not to regulate resource-production activities such as fracking. A federal court, he said, incorrectly applied the “waste injection” facet of the SDWA to fracking, thus requiring the 2005 energy-act clarifying language.   

Echoing his view was Dennis Lathem, executive director of the Coalbed Methane Association of Alabama, a trade association for gas producers in that state. “Hydraulic fracturing has never been regulated under the SDWA,” Lathem wrote in an e-mail message to WaterTech Online®. He added that 43 percent of all natural gas produced in Alabama comes from underground coal seams that have been hydraulically fractured and that “no state or federal investigation has ever confirmed a case of water well contamination from hydraulic fracturing in Alabama.” His organization also believes that state fracking regulators are the best judges of local drilling and gas production conditions.

Steinway pointed to a 2004 EPA study which, he says, concluded that there were no adverse impacts on drinking water due to fracking with coal-bed methane wells. He also said fracking “leaves very little [drilling fluid] in the ground, and it’s removed in a very timely manner.” Putting fracking under the SDWA, he says, would complicate current regulatory activities by the states and unnecessarily reveal trade secrets about the chemical composition of fracking fluids.

Most fracking is conducted “thousands of feet” beneath groundwater sources, and in any event, well-sealing methods prevent its intrusion into water-bearing rock layers, Steinway said.

On June 4 the Groundwater Protection Council (GWPC), an association of state agencies involved in groundwater regulation, testified to a House subcommittee about fracking. The GWPC’s president, Scott Kell, gave a statement to the committee that said, “As a result of our regulatory review and analysis, the GWPC concluded that state oil and gas regulations are adequately designed to directly protect water resources” from various well construction activities. The GWPC recommended development of “best management practices” for hydraulic fracturing that could be tailored for use in each state.

In another statement to the subcommittee, a coalition of oil and gas companies and drillers said, “While the United States contains a great deal of natural gas, most cannot be produced without hydraulic fracturing technology. Hydraulic fracturing is a technology that has been available for more than 50 years and has been used in nearly 1 million wells in the United States. Experience shows it to be both safe and effective.”

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