Fear of Fracking

Last week, the Murrysville (Pennsylvania) Council had an overflow crowd at a hearing to receive public comment on a proposed ordinance on gas drilling.

Usually, such routine functions of a small town government have about the same interest and attention from its residents as watching paint dry. Many Americans seem to be indifferent about participating in its democracy. Even presidential elections in recent years have only persuaded little more than half of its voting age population to turn out at the voting booths.

A friend of mine asked me to join her at the hearing since she was scheduled to be one of those offering pubic comment. We decided to get there early just in case to make sure we got a good seat. But we were too late. Despite cold weather and questionable road conditions, the council room was already filled to capacity and fearing a violation of the fire code, the remaining attendees were offered folding wooden chairs to watch the proceedings from the front lobby - some through the open double door into the meeting room and others watching the video monitor showing the meeting as covered by the local cable access channel.

As more people tried to squeeze into the lobby, those of us near the entrance door to the meeting room were asked to move forward and closer together. The resulting squeeze of humanity inside that lobby made for a much worse fire code violation than the one they were worried about in the council room. But not wanting to tell some people they had to leave, the powers-that-be winked and looked the other way.

At one time not long ago, the words “Marcellus Shale” would only be shared in conversation among those dealing in the field of geology. But since then, the words have been associated with a source of abundant locally produced natural gas and the jobs to go with it. More recently, the words have been linked to concerns about gas drilling polluting local water supplies and making people and their farm animals sick.

Last summer, HBO premiered the documentary Gasland and introduced us to the special method used to extract this gas called hydraulic fracturing or "fracking".

Hydraulic fracturing or "fracking" is a means of natural gas extraction employed in deep natural gas well drilling. Once a well is drilled, millions of gallons of water, sand and proprietary chemicals are injected, under high pressure, into a well. The pressure fractures the shale and props open fissures that enable natural gas to flow more freely out of the well.

I found the documentary to be compelling watching and urged others to watch it in one of my previous postings, Please Watch 'Gasland'. (Now available on DVD) It is hard to watch this movie and not feel sympathy for the people who most likely had their well water supply polluted with the toxins that make up the fracking fluid.

But for those living where the Marcellus Shale drilling is likely to occur, they are feeling fear. Fear that some of the bad experiences that others have endured from the drilling may happen to them.

So now we get the answer on why all of those people were so motivated to witness and speak up at the Murrysville Council hearing. It was fear.

They know of other communities who welcomed the gas drilling with open arms but later questioned, Marcellus Shale gas: A blessing or curse?

For the many farmers in the area, the prospect of collecting a royalty from a natural gas well is exciting.

But for others, there is a real fear that the side effects of natural gas drilling — from polluted water wells to potentially good paying jobs that will take workers away from farms — will outweigh the benefits.

Obviously not all of the drilling will cause any of the problems these people fear. But if something does happen to their water, is there anybody there to protect them? On a federal level, the Environmental Protection Agency (EPA) is supposedly there to protect their water. But the federal laws are so riddled with loopholes that proving EPA jurisdiction can be either impossible or impractical.

Thousands of the nation’s largest water polluters are outside the Clean Water Act’s reach because the Supreme Court has left uncertain which waterways are protected by that law, according to interviews with regulators.

As a result, some businesses are declaring that the law no longer applies to them. And pollution rates are rising.

Another loophole exempts the oil and gas industry from the Safe Water Drinking Act - a loophole that Congress is trying to close.

The Fracturing Responsibility and Awareness of Chemicals Act (H.R. 2766), (S. 1215) -- dubbed the FRAC Act--was introduced to both houses of the 112th United States Congress on June 9, 2009, and aims to repeal the exemption for hydraulic fracturing in the Safe Drinking Water Act. It would require the energy industry to disclose the chemicals it mixes with the water and sand it pumps underground in the hydraulic fracturing process (also known as fracking), information that has largely been protected as trade secrets. Controversy surrounds the practice of hydraulic fracturing as a threat to drinking water supplies. The gas industry opposes the legislation.

So if the feds don’t have jurisdiction over protecting our water from being polluted by gas well drillers, who does? The answer is that the individual states must assume this duty. For those who believe that the federal government should stay out of the regulating business and leave it to the states, that is a good thing. But state regulation instead of federal regulation has two significant drawbacks here. One is that instead of a uniform law protecting all states equally, there is a hodgepodge of different state laws of differing effectiveness in protecting its people.

In Pennsylvania, it’s the Oil and Gas Act from 1984 which predates the use of fracking to to drill for gas.

Section 208: Protection of Water Supplies (58 P.S. § 601.208)
If, during the drilling and extraction process, a well operator pollutes or diminishes a public or private water supply, the operator is obligated to restore or replace that water supply.

Fair enough. But how do you replace the water supply of someone whose well water has been polluted? Living off of water that must be transported in is not a satisfactory replacement.

Section 505: Penalties (58 P.S. § 601.505)
A violation of the Act is a summary offense and is punishable by a fine of not more than $300 or imprisonment of not more than 90 days, or both.

This is obviously not an adequate punishment for someone who would say, pollute the water supply of a whole community.

This brings us to the second drawback of state enforcement. With state governments running deficits and needing to cut services, manpower and resources to enforce these laws have been cut to the bone. Much of the frustration of the affected landowners shown in Gasland was due to an inadequate or non-existent response from the state agencies.

So can the citizens of Murrysville ask their Council to help with the regulation the states cannot or will not do? In most cases the answer is no.

There is interest among municipal officials to use zoning and subdivision and land development ordinances to regulate gas drilling and extraction. To a large extent, the Pennsylvania Oil and Gas Act preempts local regulation and puts regulatory authority into the hands of the PA Department of Environmental Protection.

It appears that there are two extreme views when in comes to deciding whether we want to allow the oil and gas companies to use this relatively new method of hydraulic fracturing or fracking to extract natural gas which entails some risk to our water supplies.

In one camp, we have those who have the most to financially gain from the drilling and want this to happen with the least amount of interference from those pesky regulations. Surely we can trust the drillers to do it right. Just like we trusted BP to do it right?

In the other camp, we have those who are fearful that the existing regulations are too weak and that their enforcement will be lax. The only way for them to deal with the fear of fracking is to try and have the drilling banned altogether in their communities.

But past legal precedent has shown that totally banning a legal activity such as gas drilling is not likely to stand up in court.

So this only leaves a middle position of allowing the drilling but making sure that there are enough regulations with teeth in them along with adequate remedies against the drillers in case something goes wrong. This means that in Pennsylvania, we need to persuade our state legislators to strengthen the provisions of the existing Oil and Gas Act to get them up to date with the newer fracking technology.

And last but not least, we need to persuade our members of Congress to pass H.R. 2766 and S. 1215 which would repeal the exemption for fracking in the Safe Drinking Water Act and allow the federal government through the EPA to get more directly involved in protecting our water supplies – which is their job in the first place!