Planning for Fracking on the Barnett Shale: Soil and Water Contamination Concerns, and the Role of Local Government

By Rawlins, Rachael | Environmental Law, Winter 2014 | Go to article overview

Planning for Fracking on the Barnett Shale: Soil and Water Contamination Concerns, and the Role of Local Government


Rawlins, Rachael, Environmental Law


VII. 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.

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Planning for Fracking on the Barnett Shale: Soil and Water Contamination Concerns, and the Role of Local Government
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