Energy In Depth Corrects the Record on State Disclosure
EID responds to mistaken assertions made during recent markup of Energy & Commerce Committee
WASHINGTON – The federal government mandates the disclosure of materials used in the commonly used, 60-year-old process of hydraulic fracturing – but do any of the states? Late last month during a markup in the House Energy and Commerce Committee, U.S. Rep. Diana DeGette (D-Colo.) told her colleagues on the panel that “only three states have laws requiring reporting.” But according to the Ground Water Protection Council, the actual number is significantly higher than that – and as recently as this week, growing.
Earlier today, Energy In Depth executive director Lee Fuller sent a detailed letter and accompanying packet of information on disclosure to every member of the Energy and Commerce Committee, seeking to dispel any misconceptions that may exist on what is fundamentally a basic, verifiable question. The text of that letter, along with links to the various addenda included with it, can be found below.
June 11, 2010
The Honorable Henry Waxman
Chairman, Committee on Energy and Commerce
2125 Rayburn House Office Building
Washington, DC 20515-6115
The Honorable Joe Barton
Ranking Member, Committee on Energy and Commerce
2322A Rayburn House Office Building
Washington, DC 20515-6115
Dear Chairman Waxman and Ranking Member Barton:
On May 26, the Energy and Commerce panel held a full committee markup of H.R. 5320, the Assistance, Quality, and Affordability (AQUA) Act of 2010, a bill that was reported favorably to the House by a vote of 45-1. One of the amendments brought up for consideration that afternoon, offered by U.S. Rep. Diana DeGette (D-Colo.), sought to amend the Safe Drinking Water Act (SDWA) to target the continued use of hydraulic fracturing, a key energy technology never previously regulated under SDWA, but over the past 60 years, one that has been aggressively regulated by the many states in which the technique is commonly deployed.
Although the DeGette language was ultimately withdrawn — a motion that was supported by the chairman – the debate that was spurred by the introduction of the amendment included several assertions which, upon closer scrutiny, don’t quite reflect the current reality as it relates to state involvement in the regulation and oversight of fracturing activities. I appreciate the opportunity to correct that record on behalf of the Independent Petroleum Association of America and Energy In Depth, of which I have the pleasure to serve as executive director.
Reviewing the archived video of the debate on the committee’s website, Rep. DeGette on several occasions makes reference to what she believes to be an inadequate number of states currently requiring service companies to disclose information related to the materials used in the fracturing process. In particular, she suggests that “only three states have laws requiring reporting,” and that two other states “are considering implementing those laws” as well. All told, she estimates that “only one-tenth of the states require this type of reporting,” and proceeds to use that premise as the foundation for constructing a broader argument in support of her amendment.
But those numbers don’t quite align with research jointly published last year by the Ground Water Protection Council (GWPC) and the U.S. Department of Energy. According to that report, of the 27 states in which 99.9 percent of oil and gas activity takes place:
- 25 of those states require a detailed well treatment report to be submitted to state regulatory agencies;
- 18 states require the submission of a list of materials used (water, sand, additives) in the process;
- 19 states require the volumes of those materials to be disclosed; and
- 10 states demand a list of specific additives the service company intends to use on site.
Attached for your convenience, please find a previously unpublished addendum to the GWPC report providing a detailed summary of how these states regulate hydraulic fracturing, as well as other rules in place governing every stage of the energy exploration, production and delivery process. Please note that since this addendum was compiled, a number of states – such as Colorado, Pennsylvania, and most recently Wyoming – have updated their disclosure rules to provide for even greater level of transparency in the process.
In analyzing the disclosure requirements currently in place in the individual states, it’s important also to recognize that the federal government also requires the forthright disclosure of additives used in the fracturing process in the form of Material Safety Data Sheets (MSDS), which are mandated by the Occupational Safety and Health Administration (OSHA) to be present at every well site in America where a minimum amount of chemicals are found. In states such as New York, Pennsylvania and West Virginia, these sheets and aggregations thereof can be accessed easily by navigating to the website of the appropriate state regulatory office. In other states, similar information can be obtained by submitting a simple request to the agency.
In closing, one additional comment made by Rep. DeGette during the debate over her amendment last week may warrant further explanation – specifically, the assertion that “in 2005, the oil and gas industry got itself exempted from the Safe Drinking Water Act, the only industry which is exempt from that legislation.”
As senior members of the committee during that time, certainly you remember that the provision of the Energy Policy Act of 2005 dealing with hydraulic fracturing did not result in a substantive change to existing law; it merely clarified Congress’s long-standing position that hydraulic fracturing had never been – and, in fact, was never intended to be – regulated under SDWA. But that doesn’t mean other aspects of the process aren’t regulated under SDWA and a host of other federal rules and statutes. For your convenience, I’ve attached a fact sheet depicting the various forms of federal regulation (SDWA, Clean Water Act, etc.) that apply to each step of that process.
Thank you for the opportunity to address some of the misconceptions that exist regarding ongoing efforts by the states to discharge their long-held responsibilities related to the regulation of oil and natural gas. Please don’t hesitate to contact me directly should you have any additional questions, concerns or comments.
Sincerely,
Lee O. Fuller
Executive Director
Energy In Depth
cc: All members of the House Energy and Commerce Committee
Enclosures
Left, Right, Center: Members of All Stripes Cite Shale Gas as Key to Energy Future
House panel examines unique role that shale gas, hydraulic fracturing can play in delivering Americans clean, secure and affordable energy future
WASHINGTON – America’s abundant reserves of clean-burning, shale-derived natural gas have the potential to create thousands of high-wage jobs and billions in new revenue, all while helping our nation pursue a clean, affordable, and secure energy future. That’s the message that members of the House Energy and Commerce subcommittee on energy and the environment heard today, as the panel sought to gain additional information on the proposed merger of ExxonMobil and XTO Energy – a leading independent producer of shale gas resources.
Subsequent to the hearing, Energy In Depth executive director Lee Fuller issued the following statement:
“Certainly today’s hearing considered a range of topics that extended well beyond hydraulic fracturing’s remarkable record of safety and performance, but when those issues came up, it was clear that support for this commonly used technology was not limited to one end of the dais.
“While different members approached the issue from several unique perspectives, the points on which everyone seemed to agree are that natural gas is critical to our energy future, critical to our economic future, and critical as a means of significantly reducing our dependence on foreign energy. Thanks to the technology available to us today, each and every one of those objectives is well within our reach.”
Among other key elements included in its legislative portfolio, the subcommittee on energy and the environment maintains jurisdiction over the federal Safe Drinking Water Act (SDWA) of 1974, a statute that some lawmakers would like to re-write with an eye on handing EPA regulatory authority over hydraulic fracturing – a process that has been aggressively and successfully regulated by states for the 60 years in which it has been in commercial use.
Although not a member of the subcommittee, Rep. Diana DeGette (D-Colo.) appeared at the hearing today for the purpose of defending her effort to amend SDWA, assuring members of the panel that the FRAC Act would not have the effect of impeding the safe and responsible use of fracturing technology.
Rep. DeGette characterized the bill as a measure that would promote the additional reporting of chemicals. Unfortunately, the actual text of her bill suggests a very different outcome – potentially creating a situation whereby the fracturing process is shut down for several years while EPA develops the regulations needed to execute its new and potentially onerous mandates.
