Is lax regulation enabling the energy industry to poison aquifers?

fracking well geauga county
A hydraulic fracturing well operates in Geauga County, Ohio (Source: Ohio Environmental Law Center).

Hydraulic fracturing, or fracking, has become one of the leading hot button issues of the past few years. Though fracking has been used to extract oil and natural gas in the United States for decades, it has dramatically picked up steam recently. The controversy and debate around the topic has evolved just as rapidly.

Here in Ohio, home to the fuel-rich Utica shale, the debate around fracking has been raging. The number of fracking wells has skyrocketed, reaching 1,324 as of January 24; this number represents a 147-fold increase since 2011, when there were just nine wells operating. But concerns over the potential consequences of fracking have generated a backlash, with at least five Ohio communities voting to ban the practice within their borders.

Much of the debate over fracking stems from its potential impacts on water. The practice has emerged as just the latest iteration of the water-energy nexus. Fracking presents potential risks to water at all stages of its life cycle, from the injection of fracking fluid to the disposal of wastewater, also known as brine. There have been reported incidents of water contamination related to fracking in communities stretching from Wyoming to Pennsylvania to Texas.

But fracking is just one practice that involves the underground injection of water and/or wastewater. In fact, there has been an exemption in place that allows the energy industry to inject potentially contaminated water into underground water sources for three decades. Clean Water Action, a non-profit organization working to protect the health and safety of America’s water sources, recently released a report exploring this so-called “Aquifer Exemption” to the Safe Drinking Water Act.

Drink Local. Drink Tap., Inc. remains committed to educating the public about the importance of connecting with and protecting our life-giving water sources. In this spirit, we interviewed the lead author of the report, John Noël, the National Oil and Gas Campaigns Coordinator with Clean Water Action. [Full disclosure: John is a friend and classmate of mine from grad school.] A lightly edited transcript of the interview follows.

Drink Local. Drink Tap.: Your report explains in great detail how and why the Environmental Protection Agency sometimes allows companies to inject contaminants into groundwater sources that could potentially be used for drinking water. Can you provide a brief history of the program and explain why EPA would allow this “Aquifer Exemption?”

John Noël: Injection wells as a means of disposing waste fluids underground have been around since the 1930s. It’s only been since the Safe Drinking Water Act (SDWA) was passed in 1974 that there was a federal program set up to regulate the practice. As it stands, EPA’s Underground Injection Control (UIC) program divides injection wells into six classes, depending on the type of fluids injected – from the hazardous to the relatively benign.

The sole purpose of the UIC program is to protect underground sources of drinking water from contamination by these injection wells. Yet, when the first regulations were being written in the 1980s, the oil and gas industry, along with some state regulators, basically said without some sort of exemption clause, certain injection activities would be illegal, because they occur in or around drinking water and intrinsically contaminate these water resources.

EPA agreed with this notion and included the aquifer exemption language, which allows certain types of activity to occur in groundwater which would otherwise be illegal. One example of a potentially exempted activity is the underground disposal of wastewater created in unconventional oil and gas (including fracking) operations. Underground injection is the cheapest and most convenient method of disposal for oil and gas companies. So, if a company wanted to inject wastewater underground, but the area targeted for injection contained a source of drinking water, this type of activity would normally be illegal under the SDWA. Yet, utilizing the aquifer exemption clause, the company can get the pollution protections lifted and inject directly into this once protected water source, essentially destroying it and making it off limits for future generations.

Keep in mind that this was done as a cost saving and convenience measure for the industry. It is more expensive to drill deeper injection wells, potentially under drinkable water, or even find a formation that doesn’t contain high quality drinking water than it is to just inject wherever they want, after going through the exemption process.

DLDT: What is a Class II injection well? How does it relate to this Aquifer Exemption program?

JN: Class II injection wells are those that deal with fluids related to oil and gas activities. These fluids fall into three categories:

  1. Wastewater generated in oil and gas production (flowback and produced water);
  2. The injection of fluids associated with a form of oil production called “enhanced recovery” – this is when steam, polymers, carbon dioxide, or other chemicals are injected near old production wells to help capture the residual oil in these already tapped formations. This type of oil production is becoming increasing critical as conventional sources decline;
  3. Hydrocarbon storage, mostly related to the injection of oil and gas for the country’s strategic petroleum reserves.

DLDT: In the report, you explain that EPA classifies underground sources of drinking water or USDWs as either “substantial” or “non-substantial.” Can you explain this distinction and why it matters for water quality?

JN: This is a good question. Substantial exemptions are those for aquifers that are of higher quality. This means the water could be consumed with little or no treatment. Exemption of these aquifers triggers another level of public participation controlled by the EPA, and they eventually have to be signed off by the EPA Administrator and put in the Federal Register. This is a big deal and a lot of work. But considering the fundamental notion of writing off drinking resources, this level of scrutiny is appropriate and necessary.

However, “substantial” is not defined per se in the regulations and instead is interpreted broadly and voluntarily in an EPA guidance published in the 1980s. Even worse is that the regulation says “substantial” reviews cannot be applied to “permit actions for Class II or Class III wells” – which is the MAJORITY of exemptions. So, regardless of the quality of water for a Class II well exemption, a substantial review is not required. Again, the way the regulations are written, regardless of the high quality of the water in some exemptions, a substantial review is not required. According to what we are hearing from the EPA, there are only a handful of “substantial” exemptions in the history of the program.

Non-substantial exemptions are everything else not designated substantial. This means there is a lower level of analysis needed to support an exemption decision, and the state controls the public notice aspect; these regulators could potentially be heavily influenced by the industry applying for the exemption. Non-substantial exemptions essentially are a rubber stamp compared to the substantial determinations.

DLDT: You note that in the early stages of the program, when EPA began handing oversight responsibilities to the states, there was a transitional period during which state and federal regulator appear to have kept poor records, potentially leading to the approval of exemptions that should not have been issued. Has regulation at the state and federal level improved since this point, or is poor oversight still an ongoing problem?

JN: We don’t really know what is going on in state aquifer exemption programs. As mentioned, most states applied to get primary enforcement and management authority over their programs in the 80s and 90s. The way it looks now, with the limited amount of data available, is that most aquifers already being injected into were given blanket exemptions, regardless of water quality, as the oversight responsibilities were handed over to the state programs. That’s what happened in California, and it’s really the only state where we are getting an inside look into the oversight failures at both the state and national level. I see no reason that other states with substantial energy extraction activity wouldn’t also have the same type of problems. It’s going to take some investigating into every program. To California’s credit, they are doing a full overhaul of their UIC program and really working on getting a handle on the exemption situation with an eye to protecting groundwater, which should be the whole point.

DLDT: How does hydraulic fracturing, or “fracking” play into this equation? Fracking is picking up steam here in Ohio, as oil & gas companies enter the Utica shale. Does this recent boom in fracking exacerbate the risks associated with this exemption program?

JN: We know that the rise in unconventional oil and gas development, which fracking is a part of, increases the need for aquifer exemptions. Considering the number of injection wells in Ohio and the fact that other Marcellus states are trucking fracking wastewater across the Ohio border for disposal, aquifer exemptions might be something to look into. Although the need for exemptions varies from state to state and hinges most on geology and depth and quality aquifers in relation to injection wells. But the fact that I can’t tell you exactly which states have exemptions and how many is problematic.

DLDT: You note in the report that the EPA only regulates fracking operations if they use diesel fuel in their frack fluid. Here in Ohio, state regulators do not require companies to fully disclose the chemicals they use in the fracking process, as they are shielded under trade secret protections. This issue came to the fore last summer, when firefighters had to tackle a blaze at a fracking well without knowing what chemicals they may have been exposed to. Does Clean Water Action believe there should be mandatory disclosure laws? Or is there another option that could protect industry trade secrets?

JN: [We at Clean Water Action] absolutely support mandatory disclosure laws of all chemicals being used in fracking operations. Ideally in a publicly available database with names and concentrations of all chemicals used in the frack fluid. Very few cases in my mind can override the public’s need to know what chemicals are used in our communities. 

These chemicals when entered into the environment pose unknown risks either underground or at the surface. A company claiming “trade secrets” does not shield residents in close proximity to well pads or people downstream or downwind from the potential health impacts, and I see no reason it should shield these companies from additional public scrutiny and disclosure regulations.

It also begs the question if these chemicals are absolutely critical to the drilling fluid and there is a legitimate competitive advantage to not disclosing this information, OR is it that some of these trade secrets are toxic secrets and would no doubt alarm any reasonable person if they knew these types of chemicals were being used in their town or near their residence.

I think it’s only a matter of time before full disclosure is mandatory. Maybe not full disclosure to the public in real time but at least to state regulators who then can then report the chemicals in emergency situations like what happened with the fire in Ohio.

DLDT: Could you explain how the regulatory environment has changed in the US since this exemption program was introduced in 1984? How should EPA respond to these changes?

JN: There are a number of things mentioned in the report that EPA can do to help fix the aquifer exemption oversight failures of the past 30 years. First, EPA must collect and disclose a full national inventory of all aquifer exemptions granted nationwide. The Agency should also include the rationale for each exemption decision, indicating that the process was followed correctly. Next, update the actual regulatory language so it reflects 21st century water challenges, including water scarcity and climate change impacts. Initiate an investigation into whether there are sources of drinking water that were wrongfully exempted.

DLDT: In what way, if any, could falling oil prices affect the future of this program?

JN: Last week saw the largest single drop in active oil rigs since 1987. This means less drilling and thus less wastewater produced and injection wells utilized. At least for right now, there could be a slowdown in oil and gas related exemption requests. That still doesn’t mean all current aquifer exemptions were permitted correctly and do not need to be investigated. Furthermore, exemptions are also closely associated with uranium mining which is removed from oil price impacts. So if there is an increase in uranium mining we can expect an increase in exemption requests.


– If you’d like more information from Clean Water Action on how fracking could threaten groundwater or on the UIC program, check out their publications page at