Planning for fracking on the Barnett Shale: soil and water contamination concerns, and the role of local government.

• Author: Rawlins, Rachael
• Position: I. Introduction through VI. Leaks, Spills, and Illegal Dumping: Statutory and Regulatory Control at the Federal Level, p. 135-170 - Author abstract

1. INTRODUCTION II. TEXAS DISCLOSURE RULES AND TRADE SECRET EXCEPTIONS III. MOVING BEYOND PROPERTY RIGHTS CLAIMS IV. WATER QUALITY ANALYSIS AND EVOLVING STANDARDS V. THE COMMON LAW AND THE DIFFICULT BURDEN OF PROOF VI. LEAKS, SPILLS, AND ILLEGAL DUMPING: STATUTORY AND REGULATORY CONTROL AT THE FEDERAL LEVEL VII. ALTERNATE STATE REGULATION: VAGUE REGULATORY STANDARDS AND A CLIMATE OF RELAXED REGULATORY ENFORCEMENT VIII. MUNICIPAL LAWS: WATER AND SOIL IX. CONCLUSION I. INTRODUCTION

   The debate is ongoing as to whether the explosive growth of gas industry operations involving hydraulic fracking poses a serious risk to public health and the environment. Concerns include the possibility that chemicals injected, naturally occurring substances disrupted, or toxins spilled at the surface may contaminate soil or make their way into drinking water supplies. (1) Chemicals used in drilling and fracking include carcinogens and endocrine-disrupting chemicals that may have latent long-term health effects, including chemicals that can affect the skin, eyes, other sensory organs, the respiratory and gastrointestinal systems, the brain and nervous system, immune and cardiovascular systems, or the kidneys. (2) Particularly problematic are endocrine-disrupting chemicals, which are known to cause latent abnormalities at infinitesimally small levels of exposure, create predispositions for disease that only become apparent later in life, and cause transgenerational effects. (3) Health effects may not surface for decades and could affect future generations. (4)

   Drawing lessons for planning practice, this Article explores the legal and regulatory framework at the federal, state, and local level focusing on soil contamination and water quality concerns related to fracking on the Barnett Shale. The Barnett Shale, an area which underlies 5,000 square miles over twenty-three counties including the Dallas-Fort Worth area of Texas, (5) is the most active shale gas production area in the United States, and the home of one of the largest drilling programs ever undertaken in an urban area. (6) The Barnett Shale accounted for 25% of the gas production in Texas in 2009, with 13,902 existing gas wells and another 3,333 permitted. (7) Gas production in this area increased over 3,000% from 1998 to 2007. (8) Since 2001, over 1,000 permits have been issued for drilling and production of gas within the city limits of the City of Fort Worth alone. (9)

   Gas industry operations risk leaks and spills of fracking fluid chemicals and wastewater from many sources including flow lines, trucks, tanks, and holding pits. (10) In fracking, water, sand, and chemicals are injected into the shale layer at extremely high pressures to create fractures and release the trapped natural gas. (11) Although additives represent less than 0.5% of the total volume of hydraulic fracking fluid, (12) the U.S. Geological Survey estimates that about 15,000 gallons of chemical additives of waste are returned to the surface in a three million gallon frac job. (13) Additives are used to reduce friction, to prevent bacterial growth, to prevent mineral scale formation, to prevent corrosion, to prevent swelling of expandable clay minerals, as gelling agents to support proppants, as surfactants to promote fracturing, and as cleaners to dissolve contaminants in the casing and minerals in the shale. (14) Most of the injected fluids, 60-80%, are returned to the surface as "flowback" water (15) during a period of about two weeks before the well begins natural production, following which wastewater, now called "produced water," will still flow back out of the well, typically at a rate of 84-420 gallons per day. (16) The well may continue in production for decades. (17)

   Chemicals are also added to 'muds' used to drill the bore hole to increase the density and weight of the fluids, reduce friction, facilitate the return of drilling detritus to the surface, shorten drilling time, and reduce accidents. (18) The drilling fluid is circulated through a pit or tank, where the cuttings settle out, and drilling mud may be stored for reinjection. (19) Temporary pits may be used during drilling to separate and hold the cuttings, the used drilling mud, and the contaminated water that comes to the surface during drilling. (20)

   In addition to concerns about surface contamination, controversy is ongoing as to whether chemicals injected deep underground (in the Barnett, the fracking is done at about 6,000-7,500 feet underground) can make their way back up into drinking water aquifers (which reach surface depths of only 2,000 feet in the Barnett Shale). (21) The Texas Railroad Commission (RRC), the State agency with jurisdiction over oil and gas activities, states that Commission rules protect groundwater by requiring that surface casing in the well be set below the depth of usable quality water. (22) According to the RRC, its "records do not indicate a single documented water contamination case associated with the process of hydraulic fracturing." (23) However, identifying contaminants associated with gas industry operations and tracking their source can be difficult pursuant to the current regulatory regime. It may take time for contaminants left deep in the earth to reach the surface and health effects may be latent. According to some current and former EPA officials, confidential settlement agreements are also interfering with risk assessment. (24)

   The New York Times compiled documents from the mid-1980's of a case where EPA concluded that hydraulic fracturing at depths of 4,216-4,363 feet led to contamination of a water well drilled to a depth of 400 feet. (25) The contaminant was described by the EPA as a fracturing fluid or gel. (26) There were reportedly no signs of surface contamination, and the gas well had strong casing to a depth that exceeded that of the aquifer. (27)

   EPA filed another report of ground water contamination linked to hydraulic fracking in December 2011. (28) EPA detected synthetic chemicals consistent with gas production and hydraulic fracturing fluids, high benzene concentrations and high methane levels in deep monitoring wells in Pavillion, Wyoming. (29) EPA cautiously noted that the conditions may be unique in that the fracturing is taking place "in close proximity to drinking water wells" and that production conditions are different than in many other areas. (30) Appearing wary of political ramifications, in March of 2012, EPA committed to additional investigation together with "a group of stakeholders and experts." (31) The report was issued only in draft form for public comment and submission to an independent scientific panel. (32) The results are contested, with industry arguing that EPA's study did not "adequately distinguish between potential natural impacts and those from gas drilling activities." (33) On June 20, 2013, EPA announced that, although it "stands behind its work and data," it does not plan to finalize or seek peer review of its draft groundwater report. (34) EPA plans instead to support the State of Wyoming in its continued investigation. (35)

   In late 2010, EPA investigated a claim against Range Resources in Parker County on the Barnett Shale that a homeowner's tap water became bubbling and flammable after nearby drilling and fracking operations. (36) Water samples showed elevated levels of benzene, toluene, ethane, and a high level of methane. (37) EPA sampled the production gas from the gas well, and performed compositional and isotopic fingerprinting analyses. (38) Based on the results of its investigation, EPA determined that the presence of gas in the well was likely to be due to impacts from gas development and production activities in the area. (39) EPA concluded that the methane levels were potentially flammable and explosive, that benzene, if ingested or inhaled, could cause cancer, anemia, neurological impairment and other adverse health impacts, and that the contaminants "may present an imminent and substantial endangerment to the health of persons." (40) EPA issued an emergency order that included requirements for providing potable water, surveying, sampling, and submitting plans to identify, eliminate, and remediate gas flow pathways into the Trinity Aquifer. (41)

   After legal challenges to their regulatory authority, and amidst significant political controversy, (42) EPA ultimately dropped the case without a full explanation. (43) The Texas RRC held an independent hearing and concluded that the hydraulic fracking operations had not and were not causing or contributing to contamination of any domestic water wells. (44) Given an imbalance in representation, however, the Texas RRC may not have received a complete and balanced presentation of the facts. (45) While Range Resources reportedly spent $3 million on its defense, (46) EPA chose not to participate in the hearings. (47) The incestuous relationship in Texas between politics and the oil and gas industry also cast a pale over the integrity of the process. (48) Politics and process aside, however, there was testimony as to a possible natural cause of the contamination from another gas formation, the Strawn, which is located above the Barnett Shale. (49) Another nearby well, allegedly drilled at around the same time, hit gas immediately (before gas drilling), and there was testimony that a nearby public water system had signs since 1995 on its water storage tanks that read "No Open Flame." (50) The water well at issue was drilled to a depth of only 200 feet, whereas the wellbore of the gas well was 5,000 feet deeper. (51) There was testimony that the greatest fracture identified in that county was 400 feet, or 4,500 feet below the surface. (52) There was also testimony that tests of the casing and cement lining in the wells proved there were no leaks; (53) however, there have been allegations to the contrary. (54)

   The Houston Press noted that there was evidence that from about 400...