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

• Author: Rawlins, Rachael
• Position: VII. Alternative State Regulation: Vague Regulatory Standards and a Climate of Relaxed Regulatory Enforcement through IX. Conclusions, with footnotes, p. 170-199

7. ALTERNATE STATE REGULATION: VAGUE REGULATORY STANDARDS AND A CLIMATE OF RELAXED REGULATORY ENFORCEMENT

   The Texas RRC, not the TCEQ, the State's primary environmental regulatory agency, has jurisdiction over wastes, spills, and discharges (both hazardous and nonhazardous) resulting from activities associated with the exploration, development, or production of gas (prior to its use in any manufacturing process or as a fuel), including storage, handling, reclamation, gathering, transportation, or distribution of natural gas by pipeline. (289) Although water quality standards are established by the TCEQ, the RRC has responsibility for enforcing any violation of those standards. (290) Discharges regulated by the RRC are not required to comply with regulations of the TCEQ that are not water quality standards (i.e. technology based standards), (291) and activities associated with the exploration, development, or production of oil and gas are specifically exempted from compliance with the TCEQ's regulatory permitting program for stormwater runoff from construction or industrial activities. (292)

   In lieu of the RCRA regulatory program, the Texas RRC has created an alternate regulatory program to govern gas industry operations. The Texas RRC explains that the RCRA exemption is based on the unique nature of exempt oil and gas wastes that are said to be generated in large quantities, but are relatively low in toxicity. (293) Consistent with this rationale, as explained in detail below, the program is lax. (294) However, studies reveal that gas industry wastes include highly toxic chemicals, including chemicals listed as hazardous waste under RCRA. (295) Theo Colborn et al., identified forty toxic chemicals in pit solids drawn from six evaporation pits in New Mexico, including RCRA-listed hazardous wastes. (296) Isolating drilling wastes, Colborn identified twenty-two chemicals, including at least two listed as RCRA hazardous wastes (297) and one listed as a toxic waste under CERLCA (298) following an accidental blowout in Wyoming that contaminated 25,000 square feet of soil before any fracking had begun on the well. (299) During the blowout, residents suffered severe respiratory distress, nausea, and vomiting and had to be evacuated from their homes for several days. (300) Colborn explains that complaints of similar symptoms from residents near other gas operations suggests that the use of toxic chemicals during drilling is not unique. (301)

   As acknowledged by EPA, toxic chemicals, including listed hazardous wastes, are also used in solvents used to clean equipment or to flush pipelines at drilling sites. (302) Colborn identified methylene chloride, (303) a toxic solvent listed as a hazardous waste under RCRA, (304) at well pad sites and in air samples during weekly air quality monitoring near natural gas operations in rural western Colorado, including several readings in high concentrations. (305) Methylene chloride has the potential to leach into groundwater and has been the subject of soil and groundwater remediation action in other contexts. (306)

   The idea that the toxicity of these wastes may be safely diluted is clearly at odds with the policy rationale driving the RCRA regulatory program. (307) RCRA seeks to ensure that wastes are properly treated and not simply diluted to mask the concentration of hazardous constituents. (308) Pursuant to the RCRA regulatory program, if any amount of a listed hazardous waste mixes with a nonhazardous solid waste (a broadly defined category of discarded materials), (309) the entire mixture is regulated as a listed hazardous waste. (310) A small vial of listed waste mixed with a large quantity of nonhazardous waste would cause the resulting mixture to bear the same waste code and regulatory status under RCRA as the original listed component. (311)

   Congress passed RCRA in response to decades of inadequately controlled dumping that led to contamination of land, ground, and surface waters. (312) Severely restricting land disposal is one of RCRA's most important strategies. (313) RCRA generally prohibits land disposal of untreated hazardous wastes. (314) RCRA-exempt wastes regulated by the Texas RRC (315) however are subject instead to the requirements of Statewide Rule 8 (316) which allows for "landfarming" and "burial" without treatment and, in some cases without a permit, regardless of whether wastes include toxic chemicals that are listed as RCRA hazardous wastes. (317)

   If drilling wastes are disposed of on the same lease where they are generated, and with permission of the surface owner, the Texas RRC does not even require a permit for land farming and burial of "low chloride drilling fluid," including: water base drilling fluids, drill cuttings, sands, and silts obtained while using water base drilling fluids, and wash water used for cleaning drill pipes. (318) Drilling fluids and other drilling wastes, including drill cuttings, sands, and silts, wash water, drill stem test fluids, and blowout preventer test fluids may also be stored in a pit without a permit. (319) Other pits allowed without a permit include reserve pits, mud circulation pits, pits for storage or disposal of spent completion fluids, workover fluids and drilling fluid, silt, debris, water, brine, oil scum, paraffin, or other materials cleaned out of the wellbore, (320) basic sediment pits, flare pits (for temporary storage of liquid hydrocarbons), (321) and water condensate pits (for storage or disposal of "fresh water" condensed from natural gas in conjunction with a gas pipeline drip or gas compressor station). (322) There is no requirement that these pits be lined, (323) and cleanup may include backfilling with dirt. (324)

   Pits and landfarming may also be allowed by permit. The RRC may establish lining and other requirements during the permitting process; however, the rules do not include any clear criteria or engineering standards for pits. (325) The permit application for landfarming requires detailed plans, (326) but again, there are no clear regulatory standards or criteria. (327) Land farming is defined as the mixing and applying oil and gas wastes to the land, "in such a manner that the waste will not migrate off the landfarmed area." (328) RRC Rule 3.8(b) further provides that "[n]o person conducting activities subject to regulation by the commission may cause or allow pollution of surface or subsurface water in the state." (329) The permitting standard also includes general prohibitions. (330) A permit to dispose of oil and gas wastes by any method, including disposal into a pit, may be allowed if the commission determines "that the maintenance or use of such pit will not result in the waste of oil, gas, or geothermal resources or the pollution of surface or subsurface waters." (331) However, there are no meaningful criteria defining the extent of contamination that would qualify as "pollution." (332)

   State standards for cleanup operations following leaks and spills are also lacking. The RRC has no mandatory regulatory standards for soil testing, review, or remediation prior to redevelopment. (333) The RRC rules allow the level of cleanup required for "hydrocarbon condensate spills," defined as "[t]he light hydrocarbon liquids produced in association with natural gas," (334) to be determined on a case by case basis. (335) The Commission has remarked: "[T]he lack of enumerated standards for condensate spills hamstrings field personnel and perpetuates unacceptable risk to the water and subsurface water of the state." (336) In an effort to address this problem, Commission staff adopted a "field guide" to announce "bench marks and protocols" and afford an opportunity for voluntary compliance. (337) The guide provides notice of criteria that field personnel "may employ" in evaluating the adequacy of spill response for hydrocarbon condensate spills. (338) The guide provides standards for grab samples with soil to groundwater protection limits identified, but only for total petroleum hydrocarbons (TPH) and benzene, toluene, ethyl benzene, and xylenes (BTEX). (339) There are no guidelines or cleanup standards that address the range of toxic chemicals that may be associated with fracking fluids, drilling fluids, flowback water or produced water. (340)

   Regulations with broad directives and lacking in regulatory standards were common in the early days of environmental law and have historically not proven effective. (341) Moreover, recent reports suggest that the RRC has not been successful in implementing its "no pollution" standard. A recent case brought by the Travis County District Attorney's Officer against a landfarm led to $1.35 million in fines and raised serious questions about the adequacy of the RRC enforcement program. (342) The case documented a decade of noncompliance including the pumping of stormwater from a landfill into a bayou that continued for years after the RRC wrote a letter requesting compliance. (343) Although unverified, there are also many citizen reports of potential containment problems on the Barnett Shale. Residents have posted pictures and videos that document pits with feeble liners that appear to be failing, (344) and surface water pooling during land farming operations. (345) Reported leaks and spills include black liquid shooting over earth and trees from the side of a drilling rig; produced water running out of an inadequately secured hole at the back of the frac tank and pouring onto the ground; repeated power washing of condensate tanks (followed by testing of the fluid collecting around the tanks reflecting high levels of hydrocarbons). (346) Residents have also reported apparently unlined or inadequately lined sludge ponds near waterways, and have expressed concerns upon witnessing "clean-up operations" where waste pit residue is spread across the site. (347) Soil and gravel have reportedly been used to cover leaks and spills. (348)

   Oil and gas operators...