Wednesday, January 20, 2010

Hydraulic Fracturing and Groundwater Protection

Does the Safe Drinking Water Act provide sufficient protection? Maybe. Maybe Not.

Congress is currently examining whether to ban the hydraulic fracturing oil and gas recovery method. There is also a push to find out which products, particularly proprietary chemicals, are used in this recovery technique. Although the Center does not have a position on whether Congress should ban hydraulic fracturing, we do believe that all public and private drinking water sources should be protected from contanimation.

The Safe Drinking Water Act provides a significant degree of protection for our nation's drinking water supplies. Also penalties under the act of $5,000 to $25,000 per day per violation are significant deterrents to any potential violater. One would hope that an unscrupulous company would not make the calculation that it could afford the penalties and litigation to profit off of selling natural gas at the expense of contaminating groundwater.

The National Ground Water Association has determined that 49% of the U.S. population depends on ground water for its drinking water supply from either a public source or private well. Based on the federal Safe Drinking Water Act, the US Environmental Protection Agency (EPA) has established drinking water standards for 20 health-related contaminants including arsenic, nitrate, bacteria, radioactivity, heavy metals such as lead and mercury, and several pesticides. The standards do not presently include many other contaminants sometimes found in drinking water. Proprietary chemicals used in hydraulic fracturing also unnecessarily complicate EPA's job if there is a groundwater contamination event.

Drinking water standards and guidelines place a ceiling on contaminant levels in the drinking water supplied by the public water systems, regardless of whether the source is groundwater or surface water. When a standard or guideline is exceeded in a municipal or community water system, the state requires the operator of the system to take corrective steps. These steps can include treating the water through filtration or aeration, blending water from several sources to reduce contaminant levels in the system, or constructing a new well. There is no regulation for ensuring that private wells meet safe drinking water standards. However, private well owners can have their wells tested and use federal drinking water standards as a guide for assessing water quality.

SDWA Enforcement

EPA's National Drinking Water Regulations are legally enforceable, meaning that both EPA and the states can take enforcement actions against water systems that are not meeting safety standards. EPA may issue administrative orders, take legal actions, or fine utilities for violation of the standards.

Who must comply with the Safe Drinking Water Act?

Any 'person' violating the National Primary Drinking Water Regulations or creating an imminent and substantial endangerment by contaminating a public water system or underground source of drinking water in the U.S. A 'person' is defined as an individual, corporation, company, association, partnership, State, municipality, or federal agency (and includes officers, employees, and agents of any corporation, company, association, State, municipality, or Federal agency).

What are the penalties for noncompliance?

Under Section 1414(b) of the SDWA, an imposed penalty not to exceed $25,000 per day; under Section 1414(g)(3) of the SDWA, an administrative order can result in a $5,000 maximum penalty assessed; up to $25,000 per violation per day; under Section 1431(b), the statutory maximum is $5,000 per violation per day of an emergency order; under Section 1432(c), tampering with a public water system carries a maximum civil penalty of $50,000; a maximum civil penalty of $20,000 can be imposed for an attempt or threat to tamper with a public water system; and under Section 1445(c), the statutory maximum penalty is $25,000 in a civil judical action for failing or refusing to keep appropriate records, make reports, etc.

(Texas Groundwater Protection Committee, EPA, SWDA)

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