Air quality and gas migration are the two major environmental issues that new government regulations must address to control the booming hydraulic fracturing (“fracking”) gas drilling operations in Pennsylvania, New York and other states, said former Pennsylvania Environmental Protection Secretary John Hanger. Hanger spoke at the HB Litigation Conferences “Gas Drilling Operations Conference” on Sept. 9, 2011 in Philadelphia.

Hanger, who is currently special counsel at Eckert Seamans Cherin & Mellott spoke at the “Government Oversight” session during the conference, along John Imse, principal at Environ International Corp.

In Pennsylvania, there are approximately 3,500 natural gas wells drilled in the Marcellus Shale, 1,600 of which are now producing, said Hanger.  These wells currently produce about 30 percent of the total U.S. gas production, compared to 1 percent more than a decade ago in 2000, he noted.  Hanger added that he expects production throughout the entire Marcellus region—which includes West Virginia, New York, Ohio and West Virginia—to continue to expand rapidly in the coming years.

New York recently released an Environmental Impact Statement (EIS) regarding hydraulic fracking operations.  “Now New York is probably going to have the most rigorous and costly regulations and protections in the United States.  Pennsylvania’s, frankly, are pretty tough as well but New York, from what I’ve read, is going to take it a step further — in part to say they took it a step further,” said Hanger.  “There are a range of legitimate issues and concerns that do need to be addressed by regulation whether they be state or federal.”

Emerging Issues

Gas migration is a “real issue” in the state of Pennsylvania, Hanger acknowledged

“We actually tested for it a number of times but what I can also tell you just as certainly is that poor drilling techniques, poor drilling design, poor drilling execution … can and have caused gas to move to people’s water wells and contaminate them,” said Hanger.

“I want to distinguish this issue from frack fluids returning from depth and reaching ground water or people’s water wells.  At least in Pennsylvania, we have not had one case of frack fluids returning from depth and reaching people’s water wells,” he said.

Air impacts are an important emerging issue that the Environmental Protection Agency (EPA) will be addressing with a “fairly significant” set of rules expected to be finalized by February 2012, Hanger said. “I think the environmental community is sort of cautiously embracing [the proposed set of rules].  I’m sure they’ll criticize it to some extent for not going far enough.  The American Petroleum Institute also responded relatively calmly.”

Hanger noted that while he was Pennsylvania’s Environmental Protection Secretary 1,200 violation notices were written for fracking operators by the state’s inspection teams.  “We were trying to create … a culture of safety within the industry; and you can’t develop a culture of safety without paying attention to the small things,” he said.

“I think it’s also important to note that the companies by and large did not appeal these violations.  Less than 10 were appealed and I personally think that’s a credit to the industry.  They certainly would grumble quite a bit about some of them, and that’s fair enough, but at the end of the day they really pretty much went about the business of responding through operations to violation notices—essentially fixing what had been pointed out,” he explained.

The U.S. Department of Energy (DOE) advisory board recently released a report on fracking that highlighted issues related to air quality over water.  “They put air first before water and that wasn’t accidental.  That was a deliberate indirect statement about what was most important in their own minds, the air issues, rather than the water issues.  My own view is that the water issues – with the exception of gas migration, at least in Pennsylvania – are substantially taken care of,” said Hanger.

Public Opinion

Imse of Environ International commented that, although the Marcellus Shale has gotten a lot of attention recently, there are shale gas plays all over the U.S. and that fracking operations have been going on for many years.

“I think a lot of the regulators are trying to push through some things right now that they’ve wanted to for a long time and hydraulic fracturing is giving them that hook to do it,” Imse said.

“Not that there aren’t real issues,” he continued.  “I think that the NOx [Nitrogen Oxide] issues and the smog breaches are real issues.  Some of the worst ground level ozone concentrations in the country are in southwest Wyoming” where fracking operations have been ongoing for years.

“For those of you have been there, you know that the three people who live there aren’t responsible for it,” said Imse.  “There are states that are hundreds of years out of date in terms of where their drilling regulations are.”

“The issue is the cementing, the casing, the drilling management… it’s not the fracturing or the formation 8,000 feet down.  It’s not putting a little bit of proppant in the formation 8,000 feet down.  But it’s the practices that allow you to do it.  It’s the engineering … that’s critical,” he said.

As hydraulic fracking expands into more shale locations throughout the country and more and more people are affected by it, there’s going to be a greater push for more government regulation and oversight of the operations, said Imse.

“Subdivisions that don’t have mineral rights are going to see that their green space [surrounding their] expensive homes are going to have drilling rigs on them in the upcoming years.  There will be lots to push these new regulations forward; lots of impetus from the public,” said Imse.