Graham Spanier, Gasland and the FRAC Act

Last night I went to see GASLAND at the State Theatre (movie trailer below). As I was headed in for the 9:30pm showing, Penn State President Graham Spanier was headed out from the 7:00pm showing. I bring this up primarily in the interest of turning what is otherwise a bit of trivia into possible common knowledge. Now, we all know, that we all know, that President Spanier has seen the movie and therefore has some responsibility — as do the rest of us — for responding to the issues and challenges it raises. Knowledge is like that. Once you know something, you cannot go back.

The movie is excellent — provocative, heart wrenching, inspiring. And I heartily recommend that anyone living in the NY/NJ/PA watershed see the film. The film starts innocently enough. One day Josh Fox, the film’s director, gets a contract in the mail, offering him some $100,000 for the mineral rights to his 19 acres of property in Northeastern Pennsylvania. He wonders what exactly is involved in drilling for natural gas and so he sets off to Dimock, where a number of wells had recently been completed. From there his journey takes him all across America — West Virginia, New York, Wyoming, Colorado, Texas, etc.

Along the way he discovers that drilling leaves behind a wake of water and health problems. Some of the most poignant moments in the movie are scenes in which tap water is set on fire and others where water turned into plastic when heated because of the glycol ethers that have contaminated it.

If Gasland has a primary message it is that we need to repeal the “Haliburton Loophole” in the Energy Policy Act of 2005 (EPACT 05). This loophole effectively exempted natural gas drilling from the Clean Air Act, the Clean Water Act, the Safe Drinking Water Act and the Superfund Act. In the Q&A session afterwards, Josh Fox stressed that it is only because of these four exemptions that hydraulic fracturing is economically viable. Reinstate these regulations and there is a good chance “fracking” will go away, or at least be reigned in significantly.

The first step in this direction is the so-called FRAC Act (H.R. 2766: Fracturing Responsibility and Awareness of Chemicals Act; S. 1215: Fracturing Responsibility and Awareness of Chemicals Act), which aims to repel the exemptions from the Safe Drinking Water Act. But of course, that still leaves fracking exempt from the Clean Air Act, the Clean Water Act and the Superfund Act.

In addition to these obvious fixes, I found myself wondering why so few people seem to have made a connection between drilling and the Emergency Planning and Community Right-to-Know Act (EPCRA). Of course at the federal level, fracking is exempt — because it is not among the industries regulated by the act. However, considering that natural gas wells use between 30,000 and 80,000 pounds of hazardous and/or toxic chemicals (based on the best estimates I can find), it seems that communities have the right to know this information. It would be easy for one of our congressional leaders to author legislation extending the EPCRA to cover oil and natural gas industries.

But even without such an extension, as best I can tell, natural gas drilling is NOT exempt from the Pennsylvania Worker and Community Right to Know Act (Act 159 of 1984). And considering the quantities of chemicals used, is probably also liable for reporting under the OSHA Hazard Communication Standard and the Pennsylvania Hazardous Material Emergency Planning and Response Act (Act 165 of 1990). And even though the Department of Environmental Protection claims the industry is bound by the Right to Know Act, I was unable to find satisfactory information on this issue. In fact, it appears they are not complying with this regulation.

So, today I contacted Pennsylvania’s Department of Labor & Industry and filed a formal request for clarification on their interpretation of this matter. I also contacted several attorneys asking for their interpretation of whether these statutes might hold jurisdiction over the use of chemicals by natural gas drillers in Pennsylvania. Of course, it is entirely possible I have missed a loophole somewhere. Stay tuned…