State Fracking Laws

The U.S. Environmental Protection Agency (EPA) has announced plans to develop a nation-wide rulemaking package for shale gas extraction in 2014. Before this happens, operators have to comply with the state legislation.

States where hydraulic fracturing is present have taken a varied approach toward regulating the process. The most common and basic requirement is a mandatory disclosure rule, requiring operators to provide information on the chemical content of the fluid used for fracking. The states with disclosure requirements in effect are: Alabama, Arkansas, Colorado, Indiana, Louisiana, Michigan, Montana, New Mexico, North Dakota, Ohio, Pennsylvania, Texas, West Virginia, and Wyoming.

The fracking process can be subject of other regulatory requirements. Operators duties may include: notifying authorities prior to conducting hydraulic fracturing activities, reporting on the volume and sources of water withdrawals for well completion and fracturing processes, storing and disposing of waste fracking fluids in a specific manner, etc.  

 

Ohio

Hydraulic fracturing started in Ohio in the 1950s. At present, over 80,000 wells have been fractured within the state, most of which are vertical wells. To date, state agencies have not reported a single water contamination accident related to hydraulic fracturing. Despite this ‘clean record,’ Ohio has recently introduced more stringent regulations aimed at minimizing the risk of contamination of surface water and groundwater.

Regulations and standards related to hydraulic fracturing are contained in Chapter 1509 of the Ohio Revised Code (ORC). These laws were amended with the passage of Senate Bill 165, which became effective on June 30, 2010. The compliance with the state regulation is overseen by the Division of Oil and Gas Resources Management of the Ohio Department of Natural Resources.

Operators have a duty to provide detailed information on the franking fluid. The information required include: the type, volume and concentration of acid used, the type and volume of fluid used to stimulate the well, the reservoir breakdown pressure, the method used for the containment of fluids recovered, and the average pumping rate and return volumes.

Operators are also required to submit MSDS sheets. If identifiable chemical ingredients of the fracking’ fluid is not included on the MSDS, Division of Mineral Resources Management (DMRM) can request submission of the specific chemical information. If the operator fails to provide this information a range of enforcement actions may be taken.

Operators must notify DMRM at least 24 hours before the planned hydraulic fracturing operations. During the hydraulic fracturing operations the annulus between the surface and production casings is kept open and is filled with fluid. If circulation from the annulus is observed during hydraulic fracturing, operations must be immediately terminated and the DMRM must be notified.

In Ohio, most of hydraulic fracturing operations occur in vertical wells, which use relatively low volumes of water. Most companies use surface water for operations. The Division of Soil and Water Resources of Ohio Department of Natural Resources (ODNR) must be notified if the water withdrawal exceeds 100,000 gallons per day. A permit may be required if large volumes of hydraulic fracturing occurs in locations where a river basin commission or other watershed authority has jurisdiction.

Recycling of flowback water is allowed in Ohio, however, it happens rarely due to small size of fracturing operation in the state and related transportation costs.

Fluid wastes from hydraulic fracturing operations are subject to numerous requirements. These fluids must be transported by registered haulers or by designated pipeline. The haulers have a duty to report the volumes transported. Flowback fluids from hydraulic fracturing operations may not be spread on roads. Disposal of fluid waste by injection at a permitted Class II well is the most common practice (98 percent) in the state – there are 170 permitted Class II disposal wells in Ohio.


Pennsylvania

Hydraulic fracturing has been used in Pennsylvania since the 1950s. Since the 1980s, nearly all wells drilled in Pennsylvania have been fractured. To date, no instances of groundwater contamination caused by hydraulic fracturing have been recorded.

The Pennsylvania Oil and Gas Act provides that an oil and gas well operator is presumed to be responsible for pollution of a water supply if it occurs within six months of drilling and is within 1,000 feet of the well.

A well operator who wants to prove that pollution of a water supply existed prior to the drilling the must conduct a pre-drilling survey. The testing recommended testing parameters include: Arsenic, Barium, Cadmium, Calcium, Chromium, Lead, Iron, Magnesium, Manganese, Mercury, Potassium, Selenium, Silver, Sodium, Chloride, Sulfate, BTEX, etc.

The state has not introduced additional requirements for pre-drilling water testing specific to hydraulic fracturing.

As a part of Prevention, Preparedness and Contingency (PPC) plan, operators must list the chemicals or additives utilized and the different wastes generated during hydraulic fracturing. The PPC plan includes Material Safety Data Sheets (MSDS), cleanup procedures, toxicological data and waste chemical characteristics.

In Pennsylvania, there is no specific requirement for notification prior to hydraulic fracturing. There is no specific requirement for on-going surface and groundwater testing either.

The state of Pennsylvania requires for an operator to develop the waste handling plan associated with the permit. The plan should describe wastewater handing procedure.

All operators employing hydraulic fracturing have a duty to submit Form 26R: Chemical Analysis of Residual Waste, Annual Report by the Generator to the Pennsylvania Department of Environmental Protection (DEP) Bureau of Waste Management. The form includes information on the waste hydraulic fracturing fluids. Wastewater analysis required from operators include a range of parameters, including: Acidity, Alkalinity (Total as CaCO3), Specific Conductance, pH, Hardness (Total as CaCO3), Ammonia Nitrogen, Benzene, Toluene, Oil & Grease, Total Dissolved Solids, Total Suspended Solids and several others.

West Virginia

In 2012, West Virginia introduced the Horizontal Well Act. The law applies to any horizontal well other than coal bed methane that disturbs three acres or more of surface land or exceeds use of 10,000 gallons of water in any 30-day period.

Under this law, operators are obliged to:

-       Publish a legal advertisement prior to applying for a permit

-       Pay $10,000 for an initial well and $5,000 for each additional well on the same site and

-       Develop a water management plan

-       Locate wells at least 100 feet from any lake or perennial stream, 250 feet from an existing water well, 650 feet from an occupied dwelling, and 1,000 feet from any public water supply intake

West Virginia is among five states requiring operators to disclose chemical composition of the fracking fluid prior to the process. It is the only state beside Colorado that ensures the landowners are notified before hydraulic fracturing takes place and the only state to require notice to owners of nearby water wells. Companies have also a duty to report on how the flowback water is disposed. After the operations are completed, operators have to reclaim the well site. 

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