Influencias

At the broadest level, institutions with authority over drilling and fracturing must comprehensively revisit their policies and regulations, noting the most important risks and determining whether existing regimes adequately address these risks. To do this, they should follow the lead of New York, which has conducted a detailed environmental analysis.⁴⁸⁹ Because risks are not fully known, they also must implement regulations that help to generate more information on the impacts of drilling and fracturing, thus forming a clearer picture of risks. Requiring the testing of water near oil and gas sites prior to and after well development and reporting of quantities of waters used, wastes produced, and pollutants emitted would help to produce this type of needed information.

Next, state agencies must focus on updating regulations in the core areas of risk and requiring more than disclosure and reporting. Informational mandates that states have tended to implement, such as chemical disclosure and water use reporting, are important first steps toward better understanding risks, yet informational requirements will not, for example, ensure adequate instream flow as millions of gallons of water are withdrawn from streams, nor will they

487. See supra Part III.A.

488. See supra Part III.B.

489. See N.Y.STATE DEP’T OF ENVTL.CONSERV., supra note 31.

prevent chemical spills from improperly maintained tanks or pits.

To assist states in identifying the best regulatory options, the federal government should provide a comprehensive database of state, local, and regional oil, gas, and fracturing regulations and should separately document regulatory modifications as they occur. This would remind the laggards of areas where improvement is needed and demonstrate the many variations in risk response. Ideally, this database would also include industry guidelines, such as those published by the American Petroleum Institute,⁴⁹⁰ as well as industry best practices and the locations in which those practices have been implemented.

From the preliminary risks identified here and the regulatory innovations that have already occurred in some states, as discussed above, the following are examples of substantive regulations that states should consider:

1) Require detailed spill prevention and response plans beyond those already followed at oil and gas sites and new substantive provisions within those plans, such as the use of drip pans beneath the filling ports for chemical tanks;

2) Following the lead of states like Pennsylvania and West Virginia and the River Basin Commissions in the Marcellus region,⁴⁹¹ ensure that surface water withdrawals will not reduce instream flow below levels needed to support aquatic life and identify maximum daily levels of water that may be withdrawn from various sources;

3) Require the use of closed-loop systems for the storage of drilling and fracturing wastes, particularly in sensitive environmental areas;

4) Increase required setbacks between well pads (not just wells) and natural resources;

5) Require all wastewater treatment plants accepting flowback water to provide evidence that they will be able to treat flowback and

490. See, e.g., AM. PETROL. INST., WATER MANAGEMENT ASSOCIATED WITH HYDRAULIC FRACTURING, supra note 200.

491. See supra text accompanying notes 290, 292; W.VA.CODE R. § 22-6A-7(e) (Westlaw 2012) (placing conditions on water withdrawals).

produced water, and require operators to receive approval before disposing of wastes at wastewater treatment plants;

6) Update underground injection control well casing requirements to prevent well leakage.

Additionally, like Ohio,⁴⁹² require that operators proposing new UIC wells prove that the proposed location is not likely to cause localized earthquakes and continuously monitor the wells for seismicity issues;

7) Encourage or require reuse of flowback and produced water;

8) Update well casing requirements to prohibit the use of used casing (or require that used casing meet certain pressure tests) and increase the distance that casing must extend below underground water resources;

9) Require operators to pressure test the well before fracturing, up to the maximum pressure to which the well will be subjected, and require blowout equipment with remote control capabilities;

10) Following the lead of Pennsylvania and West Virginia,⁴⁹³ implement a rebuttable presumption that methane contamination within a certain distance from the drilling operation that occurs within a certain time after drilling was caused by the operator or implement a similar regime that allows landowners to investigate contamination without having to litigate the issue; and

11) Require air emissions monitoring and reporting at all wells and consider needed minor source regulation.

This list only includes a small sample of likely needed responses that have not yet been consistently implemented by states. In addition to writing these and a number of other needed regulations, states must ensure that they have adequate capacity to enforce their updated regulations, even in

492. See supra note 398 and accompanying text.

493. See supra notes 358–359 and accompanying text.

difficult financial times, and that their enforcement staff are adequately educated and trained. West Virginia has been a recent leader in this area, requiring minimum education and experience levels as well as minimum salaries for agency staff.⁴⁹⁴

This Article provides a preliminary framework for this improved response, suggesting the likely areas of focus. Some of the potential risks identified here may not, in the end, be as serious as this Article has suggested, while others may be more important than anticipated. Indeed, scientific research and further study of violations is essential in order to better define risks. But the recent violations at oil and gas sites, combined with the existing literature, provide an important, concrete starting point and suggest how the policy response should proceed.