Patricia DeMarco Ph.D.

"Live in harmony with nature."

It May Be Legal, but It Is Not Right!

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Hydraulic Fracturing (fracking) for recovery of fossil reserves of natural gas from deep shale formations proceeds under the National Energy Act of 2005 which granted exemptions from the Safe Drinking Water Act, the Clean Air Act, certain provisions of the Resource Conservation and Recovery Act, and provides proprietary information protection to industry that allows the contents of the fracking fluid to be kept confidential, even from the workers or their physicians.[1] Hydraulic fracturing to develop fossil natural gas reserves is going on in 39 states, including the Marcellus Shale Formation in Western Pennsylvania.

The industry touts this process as safe and clean, and has seduced politicians and landowners with promises of profits and “clean energy” for the future. The Pennsylvania DEP is investigating radioactivity and boron salts in Ten Mile Creek, a tributary of the Monongahela River which supplies drinking water to millions.  Across the country, reports of health effects thought to be attributed to hydraulic fracturing are piling up.

With 9,134 fracking wells developed in Pennsylvania, and 16, 216 permits to drill already granted,[2] the consequences of this heavy industrial activity begin to manifest in sinister ways. As with so many industrial developments, the focus is on the profits and the product not on the waste stream, the by-products or the side effects of the operation. Every state where fracking is occurring faces the environmental and health complications of fracking wastes. We are setting up the conditions for a looming disaster.

There are no provisions in the federal or state laws to protect watersheds, residential areas, schools, community and business centers, or sensitive wildlife or historic and cultural landmarks. Some communities have adopted zoning limitations.[3] The PA Supreme Court has upheld the ability of local communities to require local zoning restrictions on the location and extent of hydraulic fracturing under the provisions of the Pennsylvania Constitution Article 1, Section 27, which takes precedence over State Act 13 restrictions. (Robinson Township vs Commonwealth of Pennsylvania.

All of the processes associated with hydraulic fracturing to extract fossil methane have volatile organic compound air emissions, including benzene, a known carcinogen. Air pollution occurs from leaking valves, spills, evaporation from collection pits or open ponds, and leakage from bore holes.

Wastewater is dealt with in one of several ways, including but not limited to:

  • Disposal by underground injection (Ohio, West Virginia)
  • Treatment followed by disposal to surface water bodies, or
  • Recycling (with or without treatment) for use in future hydraulic fracturing operations.

The water that flows back from the hydraulic fracturing process to the surface with the produced gas contains not only the initially injected fracking fluid but also materials extracted from the shale rock. [4] This includes minerals such as Boron salts and radioactive isotopes of Uranium.

Flowback Water and Produced Water from hydraulic fracturing is classified as a “Special Waste” under EPA regulations, which means this material can be co-mingled with municipal solid wastes, or used for dust control or ice control on highways. The state regulations addressing wastewater management are summarized in this EPA white paper.[5] However, analysis of fracking wastewater in storage pits revealed 400 chemicals that are not in the fracking fluid; 98% of these are listed on the US EPA’s 2005 CERCLA (Superfund) list and 73% are on the 2006 EPCRA List (List of reportable toxic chemicals.)[6] EPA reports that the flowback water and produced water contain minerals, dissolved hydrocarbons, radioactive compounds, and a high level of salinity from salts dissolved from the rock. TENORM radioactive materials are naturally occurring radionuclides that have been concentrated or exposed by human activities such as mining and hydraulic fracturing. It has the potential to cause elevated exposure to radiation.[7]  Are we setting up the “Superfund Sites” of the future?

Treatment and Disposal of the Fracking Waste waters occur in three ways: The material can be stored in open, lined pits to allow hydrocarbons to evaporate (air contamination) then sludge can be de-watered, with the liquid going to a sewage treatment facility and the sludge solids going to landfills; the material can be mixed with municipal solid waste to be disposed in landfills under certain conditions; the material may be spread on construction site or roads for dust control or ice control. That means this material can be distributed, legally, onto the land where it can be washed into the surface water and seep into the groundwater without restriction or treatment.

This process is technically legal, because of the “Haliburton Lophole” exemption, but that means the provisions of the Safe Drinking Water Act, the Clean Air Act and the Resource Conservation and Recovery Act intended to protect the public from harm have been suspended to support this rapacious industry.  In 39 states, the gas extraction industries contaminate the air and water with impunity, and regulators wring their hands and pretend to care.
We MUST change the law.

Senators Casey (D-PA) and Schumer (D-NY), and Representatives DeGette (D-CO), Polis (D-CO) and Hinchey (D-NY) introduced bills in the Senate and House to close the so-called “Halliburton Loophole” in the Safe Drinking Water Act that exempts hydraulic fracturing, and to require the public disclosure of hydraulic fracturing chemicals. The Halliburton loophole authorizes oil and gas drillers, exclusively, to inject known hazardous materials — unchecked — directly into or adjacent to underground drinking water supplies. It passed as part of the Bush Administration’s Energy Policy Act of 2005.

“Energy development needn’t threaten our drinking water and public health — but under the Halliburton loophole, it does,” said John Fenton, a rancher negatively impacted by drilling activity, and member of the Pavillion Area Concerned Citizens in Wyoming.(8) The bill did not pass in either the House or Senate.

It is time to re-assert the proper priorities of our laws.  Citizens have mounted legal challenges to the fracking process, but the law sets this industry above common sense, above prudent practice, and beyond the reach of protections for public health and safety.  Is the almighty dollar really so precious that we can justify compromising the health and safety of workers, children, and future generations?

It is time to rescind the special considerations for an industry that shows no conscience in extracting fossil fuels to the detriment of present and future generations.  Destroying water supplies, introducing contaminants deep underground where they will be moving in unpredictable ways for hundreds of years is not a sound base for our energy policy. We have better choices!

Demand accountability from your elected Senators and Representatives.  Elect Congress Members who care about the PUBLIC INTEREST and are willing to stand up for public health and safety over special considerations for multinational corporations motivated only by instant profits.

Fracking my be legal, but it is not right!


[1] Otton, J.K,, 2006, Environmental aspects of produced-water salt releases in onshore and estuarine petroleum-producing areas of the United States- a bibliography: U.S. Geological Survey Open-File report 2006-1154, 223p.
[2] Patrick M. Kelly, P.E. Environmental Engineer Office of Resource Conservation and Recovery. Review of State Oil and Natural Gas Exploration, Development, and Production (E&P) Solid Waste Management Regulations. EPA File Memorandum, April 1, 2014.
 [3] Theo Colborn, Carol Kwiatkowski, Kim Schultz, Mary Bachran. “Natural Gas Operations from a Public Health Perspective.” Human and Ecological Risk Assessment: An International Journal. Vol 17, No. 5. Pages 1048-1049. September 20, 2011.
[5] (This study provides a comprehensive analysis of the exemptions and limitations, with citations to the authorizing legislation.) Renee Lewis Kosnik, MSEL, JD. The Oil and Gas Industry’s Exclusions and Exemptions to Major Environmental Statutes. Oil and Gas Accountability Project. Earthworks. © October 2007 Oil & Gas Accountability Project OGAP P.O. Box 1102 ■ Durango, CO 81302 ■
Earthworks 1612 K St. N.W., #808 ■ Washington DC 20006
[6] Frack Tracker. Year to date data as of May 1, 2015. Accessed June 19, 2015.

Report and analysis of West Virginia Landfill Disposal of Fracking Waste

[7] City of Pittsburgh Hydraulic Fracturing zoning ordinance. Ordinance supplementing the Pittsburgh Code, Title Six, Conduct, Article 1 “Regulated Rights and actions,” by adding Chapter 619: Ordinance supplementing the Pittsburgh Code, Title Six, Conduct, Article 1 “Regulated Rights and actions,” by adding Chapter 619 entitled “Toxic Trespass Resulting from Unconventional Natural Gas Drilling.”
(8) – See more at:

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