[Congressional Record Volume 147, Number 112 (Friday, August 3, 2001)]
[Senate]
[Pages S8949-S8950]
From the Congressional Record Online through the Government Publishing Office [www.gpo.gov]

      By Mr. BINGAMAN (for himself and Mr. Reid):
  S. 1374. A bill to provide for a study of the effects of hydraulic 
fracturing on underground drinking water sources; to the Committee on 
Environment and Public Works.
  Mr. BINGAMAN. Mr. President, today I introduce, along with the senior 
Senator from Nevada, very important legislation to remedy an 
unnecessary impediment to natural gas production.
  In 1997, the Eleventh Circuit ruled that hydraulic fracturing, a 
process for stimulating development in certain types of gas wells, 
constituted as ``underground injection'' under the Safe Drinking Water 
Act. As such, the State of Alabama was required to establish standards 
by which all hydraulic fracturing operations associated with natural 
gas development would be required to obtain a permit under the Safe 
Drinking Water Act. This is an expensive and time consuming process, 
and one that appears unnecessary for protection of underground sources 
of drinking water.
  The Environmental Protection Agency argued before the Eleventh 
Circuit that hydraulic fracturing did not pose a threat to underground 
sources of drinking water, and should not be subject to regulation 
under the Safe Drinking Water Act. The Eleventh Circuit did not find 
that hydraulic fracturing in fact threatened underground sources of 
drinking water. Instead, the Court found only that, as written, the 
definition of ``underground injection'' under the Safe Drinking Water 
Act included the process of hydraulic fracturing.
  Natural gas, including gas from coalbed methane and other 
unconventional source, is becoming an increasingly important energy 
source for the United States. It is a clean burning, domestically 
produced resource, the increased production of which will both enhance 
our energy security and help us address the problem of global warming.
  Protection of drinking water is also an issue of the highest 
priority. However, it appears that the situation created by the 
Eleventh Circuit's decision is not one that addresses protection of 
underground sources of drinking water, because the Court did not find 
any harm to drinking water associated with groundwater production. 
Instead, this appears to be a situation where a technical reading of a 
statute creates expensive permitting requirements not associated with a 
real on-the-ground need.
  The legislation introduced by myself and Senator Reid will require 
the EPA, in consultation with the Secretary of the Interior, the 
Secretary of Energy, the Groundwater Protection Council, affected 
States, and other entities, as appropriate, to conduct a study on any 
impacts from hydraulic fracturing on underground sources of drinking 
water.
  If the Administration determines that hydraulic fracturing endangers 
underground sources of drinking water, the Administrator shall regulate 
it under the Safe Drinking Water Act.
  If, however, the Administrator determines that hydraulic fracturing 
will not endangered underground sources of drinking water, the 
Administrator shall not regulate it under the Safe Drinking Water Act. 
In that case, States, including the State of Alabama, shall likewise 
not be required to regulate hydraulic fracturing as an underground 
injection under the Safe Drinking Water Act.
  Our bill addresses regulation under section 1421 of the Safe Drinking 
Water Act, 42 U.S.C. 300h. Under current law, States are entitled to 
make a showing under section 1425 of the Safe Drinking Water Act, 42 
U.S.C. 300H-4, that for certain oil and gas operations, the State 
regulations satisfy the statutory

[[Page S8950]]

requirements of the Safe Drinking Water Act and the State will 
therefore not be required to promulgate regulations under section 1422 
of the Safe Drinking Water Act.
  It is our intention that the provisions of Section 1425 apply to 
hydraulic fracturing operations, and it is our understanding that this 
is the status of current law. This issue is currently being litigated 
before the Eleventh Circuit. Should the Eleventh Circuit decide 
otherwise, we will address the issue as appropriate at that time.
  I ask unanimous consent that the text of the bill be printed in the 
Record.
  There being no objection, the bill was ordered to be printed in the 
Record, as follows:

                                S. 1374

       Be it enacted by the Senate and the House of 
     Representatives of the United States of America in Congress 
     assembled,

     SECTION 1. SHORT TITLE.

       This act may be cited as the ``Hydraulic Fracturing Act''.

     SEC. 2. HYDRAULIC FRACTURING.

       Section 1421 of the Safe Drinking Water Act (42 U.S.C. 
     Sec. 300h) is amended by adding at the end the following:
       ``(e) Hydraulic Fracturing for Oil and Gas Production.--
       ``(1) Study of the effects of hydraulic fracturing.--
       ``(A) In general.--Not later than 24 months after the date 
     of enactment of this subsection, the Administrator shall 
     complete a study of the known and potential effects on 
     underground drinking water sources of hydraulic fracturing, 
     including the effects of hydraulic fracturing on underground 
     drinking water sources on a nationwide basis, and within 
     specific regions, states, or portions of states.
       ``(B) Consultation.--In planning and conducting the study, 
     the Administrator shall consult with the Secretary of the 
     Interior, the Secretary of Energy, the Ground Water 
     Protection Council, affected States, and, as appropriate, 
     representatives of environmental, industry, academic, 
     scientific, public health, and other relevant organizations. 
     Such study may be accomplished in conjunction with other 
     ongoing studies related to the effects of oil and gas 
     production on groundwater resources.
       ``(C) Study elements.--The study conducted under 
     subparagraph (A) shall, at a minimum, examine and make 
     findings as to whether--
       ``(i) such hydraulic fracturing has, or will, endanger (as 
     defined under subsection (d)(2)) underground drinking water 
     sources, including those sources within specific regions, 
     states or portions of states;
       ``(ii) there are specific methods, practices, or 
     hydrogeologic circumstances in which hydraulic fracturing 
     has, or will, endanger underground drinking water sources; 
     and
       ``(iii) whether there are any precautionary actions that 
     may reduce or eliminate any such endangerment.
       ``(2) Independent scientific review.--
       ``(A) In general.--Not later than 2 months after the study 
     under paragraph (1) is completed, the Administrator shall 
     enter into an appropriate agreement with the National Academy 
     of Sciences to have the Academy review the conclusions of the 
     study.
       ``(B) Report.--Not later than 9 months after entering into 
     an appropriate agreement with the Administrator, the National 
     Academy of Sciences shall report to the Administrator, and 
     the Committee on Energy and Commerce of the House of 
     Representatives and the Committee on Environment and Public 
     Works of the Senate, on the--
       ``(i) findings related to the study conducted by the 
     Administrator under paragraph (1); and
       ``(ii) recommendations, if any, for modifying the findings 
     of the study.
       ``(3) Regulatory determination.--
       ``(A) In general.--Not later than 6 months after receiving 
     the National Academy of Sciences report under paragraph (2), 
     the Administrator shall determine, after informal public 
     hearings and public notice and opportunity for comment, and 
     based on information developed or accumulated in connection 
     with the study required under paragraph (1) and the National 
     Academy of Sciences report under paragraph (2), either:
       ``(i) that regulation of hydraulic fracturing under this 
     part is necessary to ensure that underground sources of 
     drinking water will not be endangered on a nationwide basis, 
     or within a specific region, state or portions of a state; or
       ``(ii) that regulation described under clause (i) is 
     unnecessary.
       ``(B) Publication of determination.--The Administrator 
     shall publish the determination in the Federal Register, 
     accompanied by an explanation and the reasons for it.
       ``(4) Promulgation of regulations.
       ``(A) Regulation necessary.--If the Administrator 
     determines under paragraph (3) that regulation of hydraulic 
     fracturing under this part is necessary to ensure that 
     hydraulic fracturing does not endanger underground drinking 
     water sources on a nationwide basis, or within a specific 
     region, State or portions of a State, the Administrator 
     shall, within 6 months after issuance of that determination, 
     and after public notice and opportunity for comment, 
     promulgate regulations under section 1421 (42 U.S.C. 
     Sec. 300h) to ensure that hydraulic fracturing will not 
     endanger such underground sources of drinking water.
       ``(B) Regulation unnecessary.--The Administrator shall not 
     promulgate regulations for hydraulic fracturing under this 
     part unless the Administrator determines under paragraph (3) 
     that such regulations are necessary.
       ``(C) Existing regulations.--A determination by the 
     Administrator under paragraph (3) that regulation is 
     unnecessary will relieve states from any further obligation 
     to regulate hydraulic fracturing as an underground injection 
     under this part.
       ``(5) Definition of hydraulic fracturing.--For purposes of 
     this subsection, the term ``hydraulic fracturing'' means the 
     process of creating a fracture in a reservoir rock, and 
     injecting fluids and propping agents, for the purposes of 
     reservoir stimulation related to oil and gas production 
     activities.
       ``(6) Savings.--Nothing in this subsection shall in any way 
     limit the authorities of the Administrator under section 1431 
     (42 U.S.C. 300i).''.
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