Legislation and regulation

Currently the Clean Water Act regulates the treatment and discharge of shale gas wastewater into surface water bodies. However, as Natural Resource Defense Council noted in a 2012 report, “the Clean Water Act regulatory program is not comprehensive; for example, there are no pretreatment requirements specifically for shale gas wastewater, and discharge standards are out of date,” allowing for discharge of pollutants “in amounts and concentrations inadequate to protect water quality.”

In 2000, after an Alabama court forced the EPA to investigate fracturing-related water contamination under the Safe Water Drinking Act, the EPA began to study the issue. While the EPA was still working on its report, legislation was being crafted to exempt hydraulic fracturing from the Safe Drinking Water Act. To lessen the pressure on the report’s findings, the EPA sought an agreement with the three largest hydraulic fracturing companies, including Halliburton, to stop using diesel fuel in fracturing fluids.

The EPA study focused solely on the effect hydraulic fracturing has on drinking water in coal bed methane deposits, typically shallow formations where gas is embedded in coal. It did not consider the impact of above-ground drilling or of drilling in geologic formations deep underground, where many of the large new gas reserves are being developed.

Further, buried within the 424-page report are statements explaining that fluids migrated unpredictably — through different rock layers, and to greater distances than previously thought — in as many as half the cases studied in the United States. The EPA identified some of the chemicals as biocides and lubricants that “can cause kidney, liver, heart, blood, and brain damage through prolonged or repeated exposure.” It found that as much as a third of injected fluids, benzene in particular, remains in the ground after drilling and is “likely to be transported by groundwater.”

A few months after the report’s release, the 2005 Energy Policy Act was passed, exempting the practice of fracking from the Safe Drinking Water Act, based in part on the EPA study, leaving regulation to states.