[Congressional Record Volume 145, Number 48 (Thursday, March 25, 1999)]
[Senate]
[Pages S3452-S3453]
From the Congressional Record Online through the Government Publishing Office [www.gpo.gov]

      By Mr. INHOFE (for himself and Mr. Sessions):
  S. 724. A bill to amend the Safe Drinking Water Act to clarify that 
underground injection does not include certain activities, and for 
other purposes; to the Committee on Environment and Public Works.


                    hydraulic fracturing legislation

 Mr. INHOFE. Mr. President, I rise today to introduce a bill 
with my colleagues from Alabama, Senator Sessions, that will help our 
domestic oil and gas industry by reducing one of the many regulatory 
burdens that they must comply with.
  Last year, I was informed of a case in Alabama in which the EPA was 
sued over their policy regarding underground injection and 
specifically, ``hydraulic fracturing''. This procedure is used in cases 
where product, such as gas is located in a tight geological formation 
such as a coalbed. A hole is drilled into that area and a fluid 
consisting of water, gel and sand is pumped down the wellbore into the 
formation creating a fracture zone. The gel and water are extracted 
during the initial production stage of the well while the sand is left 
to prop open the cracks in the formation.
  When Congress originally passed the safe drinking water act (SDWA) in 
1974, they intentionally left the underground protection control (UIC) 
program to the states. That act stated: ``the Administrator . . . may 
not prescribe requirements which interfere with or impede (injection 
activities associated with oil and gas production) unless such 
requirements are essential to assure that underground sources of 
drinking water will not be endangered by such injection.'' That concept 
was re-affirmed in 1980 when a provision was enacted specifically to 
recognize the adequacy of state programs, none of which required 
permitting for hydraulic fracturing in the construction or maintenance 
of oil and gas production wells.
  So, when the lawsuit was filed in Alabama, and the court ruled in 
favor of the environmental organization that filed the suit, I was 
shocked. It seemed clear to me that the intent of the law was to leave 
the regulation of this procedure to the states. I have neither heard 
nor seen anything that would lead me to the conclusion that there is 
any contamination of drinking water because of hydraulic fracturing. In 
fact, I believe the EPA agrees with me. Let me read a letter from Carol 
Browner, the Administrator of the EPA, to Mr. David A. Ludder, General 
Council for the Legal Environmental Assistance Foundation, Inc (LEAF), 
the group that sued EPA over this procedure.

       There is no evidence that the hydraulic fracturing at issue 
     has resulted in any contamination or endangerment of 
     underground sources of drinking water. Repeated testing, 
     conducted between May of 1989 and March of 1993, of the 
     drinking water well which was the subject of this petition 
     failed to show any chemicals that would indicate the presence 
     of fracturing fluids.

  That statement seems pretty straight forward and implies to me that 
EPA would be willing to work with us to solve this problem. 
Unfortunately, that is not the case. Senator Sessions and I, with 
assistance from Senator Chafee, have received nothing but stalling 
tactics. In late January, we drafted this language and sent it over to 
EPA hoping that we could resolve this issue quickly to provide relief 
to our producers. Unfortunately, they were not willing to work with us.
  So here we are introducing a bill that is simple and solves the 
problem. This bill is short and to the point. In less than two pages we 
clarify that hydraulic fracturing is not underground injection and re-
affirm that the administrator has the ability to determine what is 
regulated as underground injection, which is simply a clarification of 
an ability the administrator already possesses.
  It is my hope that EPA will work with us as this bill moves through 
committee and come up with a solution that will allow our oil and gas 
guys to get back to work and get EPA to focus on issues which may pose 
a more immediate threat.
  Mr. SESSIONS. Mr. President, I rise today to introduce a bill along 
with my colleague Senator Inhofe, which makes a technical correction to 
the Safe Drinking Water Act. This bill will end a frivolous lawsuit, 
clarify the intent of Congress and allow our State regulators and the 
Environmental Protection Agency to focus on protecting underground 
drinking water.
  This bill clarifies the Safe Drinking Water Act by exempting 
hydraulic fracturing from the definition of underground injection. 
Hydraulic fracturing is a process used in the production of coalbed 
methane. This process uses high pressure water, carbon dioxide and sand 
to create microscopic fractures in coal seams to release and extract 
methane, oil and gas. Most states in which hydraulic fracturing is 
used, including my own state of Alabama, have in place regulations to 
ensure hydraulic fracturing continues to be a technique used in a safe 
manner. This technique has been used safely by coalbed methane, oil and 
gas producers for over fifteen years and has never been attributed to 
causing even a single case of contamination to an underground drinking 
water source.
  On May 3rd of 1994, the Legal Environmental Assistance Foundation 
(LEAF) submitted a Petition for Promulgation of a Rule to withdraw the 
EPA's approval for the state of Alabama's Underground Injection Control 
(UIC) program. LEAF cited a case in Alabama of alleged drinking well 
contamination to justify its lawsuit. The EPA carefully reviewed this 
petition and on May 5th of 1995 the Administrator of the EPA, Carol 
Browner wrote to LEAF and stated ``based on that review, I have 
determined that Alabama's implementation of the UIC program is 
consistent with the requirements of the Safe Drinking Water Act''. 
Administrator Browner continued ``There is no evidence that the 
hydraulic fracturing at issue has resulted in any contamination or 
endangerment of underground sources of drinking water''. I ask 
unanimous consent that a complete copy of the text of that letter be 
inserted into the Record.
  The PRESIDING OFFICER. Without objection, so ordered.
  (See exhibit 1.)
  Mr. SESSIONS: This single case in Alabama which initiated the LEAF 
lawsuit was investigated by three regulatory agencies; the State Oil 
and Gas Board of Alabama, the Alabama Department of Environmental 
Management and the U.S. Environmental Protection Agency. None of the 
three regulatory agencies could find any contamination attributable to 
hydraulic fracturing activities or levels of any contaminate exceeding 
Safe Drinking Water Act standards. In fact, a nationwide search for 
cases of contamination attributed to hydraulic fracturing was conducted 
by the Environmental Protection Agency and the Ground Water Protection 
Council. Not a single case of contamination was discovered.
  As a result of the baseless lawsuit brought by the Legal 
Environmental Assistance Foundation, the EPA has begun the process of 
stripping away the authority of the State of Alabama to implement its 
Underground Injection Control program. Both the EPA and the state of 
Alabama must now spend precious resources, which could otherwise be 
used to address real drinking water problems, to establish federal 
regulations for a technique which poses no environmental threat. The 
impact of this action will undoubtably be felt by the people in Alabama 
and across the nation who are threatened by and in many cases, 
experiencing the effects of ground water contamination as regulating 
agencies waste their resources to address this non-problem.
  I urge my colleagues to join us in passing this technical fix to the 
Safe Drinking Water Act.

                               Exhibit 1


                              Environmental Protection Agency,

                                      Washington, DC, May 5, 1995.
     David A. Ludder, Esq.,
     General Counsel, Legal Environmental Assistance Foundation, 
         Inc., Tallahassee, FL.
       Dear Mr. Ludder: The Environmental Protection Agency (EPA) 
     has received and carefully reviewed your May 3, 1994, 
     Petition for Promulgation of a Rule Withdrawing Approval of 
     Alabama's Underground Injection

[[Page S3453]]

     Control (UIC) Program. Based on that review, I have 
     determined that Alabama's implementation of its UIC Program 
     is consistent with the requirements of the Safe Drinking 
     Water Act (42 U.S.C. Sec. 300h, et seq.) and EPA's UIC 
     regulations (40 CFR Part 145). EPA does not regulate--and 
     does not believe it is legally required to regulate--the 
     hydraulic fracturing of methane gas production wells under 
     its UIC Program.
       There is no evidence that the hydraulic fracturing at issue 
     has resulted in any contamination or endangerment of 
     underground sources of drinking water (USDW). Repeated 
     testing, conducted between May of 1989 and March of 1993, of 
     the drinking water well which was the subject of this 
     petition failed to show any chemicals that would indicate the 
     presence of fracturing fluids. The well was also sampled for 
     drinking water quality and no constituents exceeding drinking 
     water standards were detected. Moreover, given the horizontal 
     and vertical distance between the drinking water well and the 
     closest methane gas production wells, the possibility of 
     contamination or endangerment of USDWs in the area is 
     extremely remote. Hydraulic fracturing is closely regulated 
     by the Alabama State Oil and Gas Board, which requires that 
     operators obtain authorization prior to all fracturing 
     activities.
       Accordingly, I have decided to deny your petition. Enclosed 
     you will find a detailed response to each contention in your 
     petition, which further explains the basis for this denial.
           Sincerely,
                                                 Carol M. Browner,
                                                    Administrator.
                                 ______