With concerns mounting about the effects of hydraulic fracturing on water supplies, New York Rep. Maurice Hinchey last week vowed to aggressively push to close a legislative loophole that exempts the drilling practice from regulation under the federal Safe Drinking Water Act (SDWA).

If the legislation passes, it could be a game-changer for the natural gas industry, because nine out of every 10 gas wells use the process, a producer told NGI.

New York, home to a portion of the Appalachian Basin’s Marcellus Shale, provides regulatory oversight for hydraulic fracturing, but the oversight varies from state to state, Hinchey noted. The congressman represents New York’s 22nd District, which spans eight counties from the Hudson Valley to the Finger Lakes region.

“It’s imperative that we safeguard our drinking water from any chemicals associated with natural gas drilling,” Hinchey said. “I understand the desire to expand natural gas development across the country, but we must do so carefully and intelligently.”

Under HR 7231, cosponsored by Hinchey, basic federal standards for hydraulic fracturing would be reinstated under the SDWA, which would enable the U.S. Environmental Protection Agency (EPA) to regulate drinking water supplies in states with little or no regulation.

The Democrat said he was “encouraged” that the New York State Department of Environmental Conservation works to safeguard water resources in New York, but the country has to “avoid a situation in which a generation or less from now, people shake their heads and wonder how our government could have been so short-sighted and foolish to exempt hydraulic fracturing from the SDWA.”

The hydraulic fracturing loophole was included in the Bush administration-backed Energy Policy Act of 2005 (EPAct). Under the SDWA, EPA regulates the underground injection of fluids into groundwater through the underground injection control (UIC) program. Some oil and gas activities, such as enhanced recovery and waste injection, already are regulated under the program.

Hydraulic fracturing was not originally regulated by the UIC, but in 1997 the U.S. Court of Appeals for the Eleventh Circuit ruled that hydraulic fracturing should be regulated in a case involving contamination of a drinking water well. The EPAct legislatively reversed that court decision.

Hydraulic fracturing, or “fracing,” allows operators to inject fluids into a well at extremely high pressure to crack open an underground formation that allows them to produce oil and gas. More than 90% of oil and gas wells in the United States are said to undergo this treatment, with many fracs done more than once over the life of the well.

Fracing fluids often contain toxic chemicals. A portion of the fluids is brought up to the surface, but some of the fluids remain underground, and the concern is that the contaminants may filter into underground water supplies.

Colorado and Wyoming officials have faced particular scrutiny, because in tests conducted by the federal Bureau of Land Management, some water samples in Sublette County, WY, tested positive for benzene in concentrations 1,500 times the level considered safe for drinking water. Sublette County is one of Wyoming’s leading gas-producing areas.

Tests apparently found contamination in 88 of 220 wells tested in Sublette County, and the “plume stretched over 28 miles,” according to an investigation by ProPublica, an online investigative journalist group. “When researchers returned to take more samples, they couldn’t even open the water wells; monitors showed they contained so much flammable gas that they were likely to explode.”

ProPublica reported that tests of water close to drilling sites around the country show more contamination than EPA had asserted.

“The contamination in Sublette County is significant because it is the first to be documented by a federal agency,” ProPublica noted. “But more than 1,000 other cases of contamination have been documented by courts and state and local governments in Colorado, New Mexico, Alabama, Ohio and Pennsylvania.”

Documents obtained by ProPublica indicated that the “EPA negotiated directly with the gas industry” and “then ignored evidence that fracing might cause the kinds of water problems now being recorded in drilling states.”

According to ProPublica’s report, state officials have found it difficult to “pinpoint the exact cause of each contamination or measure its spread accurately because the precise nature and concentrations of the chemicals used by industry are considered trade secrets.”

Of the 300-plus compounds that researchers suspect are being used in fracing processes, 65 are listed as hazardous compounds by EPA, ProPublica noted.

Environmental groups are threatening to sue, which could become a huge problem for the gas industry, a veteran insider who works for a Rockies producer told NGI.

“If the greenies take this issue to court and win, it would be a game-changer on gas supplies,” he said.

Another potential dilemma for drillers using hydraulic fracs: the new leader of the House Energy and Commerce Committee. Last week California Rep. Henry Waxman unseated fellow Democrat John Dingell of Michigan to take over as chair of the committee (see related story).

Waxman, an outspoken consumer advocate for years, has publicly opposed the lack of safeguards to water supplies from hydraulic fracing. He may be a powerful ally for Hinchey when the legislation is brought to the floor next year.

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