UNCONVENTIONAL OIL AND GAS DEVELOPMENT Key Environmental and Public Health Requirements


September 2012


United States Government Accountability Office

GAOUnited States Government Accountability Office

Highlights of GAO-12-874, a report to congressional requesters

summary chart on pg 51 of regulatory exemptions for O and G development

September 2012


Key Environmental and Public Health Requirements

Why GAO Did This Study

Technological improvements have

allowed the extraction of oil and natural

gas from onshore unconventional

reservoirs such as shale, tight

sandstone, and coalbed methane

formations. Specifically, advances in

horizontal drilling techniques combined

with hydraulic fracturing (pumping

water, sand, and chemicals into wells

to fracture underground rock

formations and allow oil or gas to flow)

have increased domestic development

of oil and natural gas from these

unconventional reservoirs. The

increase in such development has

raised concerns about potential

environmental and public health effects

and whether existing federal and state

environmental and public health

requirements are adequate.

GAO was asked to review

environmental and public health

requirements for unconventional oil

and gas development and (1) describe

federal requirements; (2) describe

state requirements; (3) describe

additional requirements that apply on

federal lands; and (4) identify

challenges, if any, that federal and

state agencies reported facing in

regulating oil and gas development

from unconventional reservoirs. GAO

identified and analyzed federal laws,

state laws in six selected states

(Colorado, North Dakota, Ohio,

Pennsylvania, Texas, and Wyoming),

and interviewed federal and state

officials and representatives from

industry, environmental, and public

health organizations.

GAO is not making recommendations.

In commenting on the report, agencies

provided information on recent

regulatory activities and technical


What GAO Found

As with conventional oil and gas development, requirements from eight federal

environmental and public health laws apply to unconventional oil and gas

development. For example, the Clean Water Act (CWA) regulates discharges of

pollutants into surface waters. Among other things, CWA requires oil and gas

well site operators to obtain permits for discharges of produced water—which

includes fluids used for hydraulic fracturing, as well as water that occurs naturally

in oil- or gas-bearing formations—to surface waters. In addition, the Resource

Conservation and Recovery Act (RCRA) governs the management and disposal

of hazardous wastes, among other things. However, key exemptions or

limitations in regulatory coverage affect the applicability of six of these

environmental and public health laws. For example, CWA also generally

regulates stormwater discharges by requiring that facilities associated with

industrial and construction activities get permits, but the law and its regulations

largely exempt oil and gas well sites. In addition, oil and gas exploration and

production wastes are exempt from RCRA hazardous waste requirements based

on a regulatory determination made by the Environmental Protection Agency

(EPA) in 1988. EPA generally retains its authorities under federal environmental

and public health laws to respond to environmental contamination.

All six states in GAO’s review implement additional requirements governing

activities associated with oil and gas development and have updated some

aspects of their requirements in recent years. For example, all six states have

requirements related to how wells are to be drilled and how casing—steel pipe

within the well—is to be installed and cemented in place, though the specifics of

their requirements vary. The states also have requirements related to well site

selection and preparation, which may include baseline testing of water wells

before drilling or stormwater management.

Oil and gas development on federal lands must comply with applicable federal

environmental and state laws, as well as additional requirements. These

requirements are the same for conventional and unconventional oil and gas

development. The Bureau of Land Management (BLM) oversees oil and gas

development on approximately 700 million subsurface acres. BLM regulations for

leases and permits govern similar types of activities as state requirements, such

as requirements for how operators drill the well and install casing. BLM recently

proposed new regulations for hydraulic fracturing of wells on public lands.

Federal and state agencies reported several challenges in regulating oil and gas

development from unconventional reservoirs. EPA officials reported that

conducting inspection and enforcement activities and having limited legal

authorities are challenges. For example, conducting inspection and enforcement

activities is challenging due to limited information, such as data on groundwater

quality prior to drilling. EPA officials also said that the exclusion of exploration

and production waste from hazardous waste regulations under RCRA

significantly limits EPA’s role in regulating these wastes. In addition, BLM and

state officials reported that hiring and retaining staff and educating the public are

challenges. For example, officials from several states and BLM said that retaining

employees is difficult because qualified staff are frequently offered more money

for private sector positions within the oil and gas industry.

View GAO-12-874. For more information,

contact David C. Trimble at (202) 512-3841 or

trimbled@gao.gov. Page i GAO-12-874 Unconventional Oil and Gas Development

Letter 1

summary chart on pdf pg 51 (p. 44 printed text) of regulatory exemptions for O and G development










Table 2: Exemptions or Limitations in Regulatory Coverage for the Oil and Gas Exploration and Production Industry in Six
Environmental Laws
Law Description of exemption or limitation in regulatory coverage Source
Type of program related to
exemption or limitation in
regulatory coverage
Preventive Response
SDWA Hydraulic fracturing with fluids other than diesel fuel does not require a
UIC permit.
Statutory (2005) X
CWA Federal stormwater permits are not required for uncontaminated
stormwater at oil and gas construction sites or at oil and gas well sites.
Statutory (1987,
2005) X
CAA Emissions of hazardous air pollutants from oil and gas wells and their
associated equipment may not be aggregated together or with those of
pipeline compressors or pump stations to determine whether they are
a major source.
Statutory (1990)
In the Risk Management Program, many naturally-occurring
hydrocarbons in oil and gas are not included in the threshold
determination of whether a facility should be regulated.
decision (1988) X
RCRA Oil and gas exploration and production wastes are not regulated as
hazardous waste.
decision (1988) X
CERCLA Liability and reporting provisions do not apply to injections of fluids
authorized by state law for production, enhanced recovery, or
produced water.
Statutory (1980)
EPCRA Oil and gas well operations are not required to report releases of listed
chemicals to the TRI.
decision (1997) X
Source: GAO.
Note: In some cases, states may have requirements in these areas. State requirements are
discussed in the next section of this report.


NY DEC Air Monitoring Network Comment Due June 20, 2014 –ENB – Statewide Notices 5/21/2014 – NYS Dept. of Environmental Conservation

ENB – Statewide Notices 5/21/2014 – NYS Dept. of Environmental Conservation.

S5166-2013 – NY Senate Open Legislation – Relates to rules and regulations of the state; requires recommendations on repealing unnecessary or otherwise burdensome rules and regulations – New York State Senate

S5166-2013 – NY Senate Open Legislation – Relates to rules and regulations of the state; requires recommendations on repealing unnecessary or otherwise burdensome rules and regulations – New York State Senate.

TRANSPORT: Environmentalists ‘get real creative’ to combat oil by rail — Monday, January 13, 2014 — www.eenews.net

TRANSPORT: Environmentalists ‘get real creative’ to combat oil by rail — Monday, January 13, 2014 — www.eenews.net.

Unconventional Gas in Poland – Law, Environment and Society

www.czystaenergia.org.pl/publikacje/czysta_energia/FCE report 2013 small_14032013a.pdf.

Unconventional Gas in Poland –

Law, Environment and Society  2013

PHMSA: Stakeholder Communications

PHMSA: Stakeholder Communications.

Community Toolbox
Call 811 for Kids!Pipeline MarkersPIPANational Pipeline Mapping System

Pipeline Safety Connects Us All

The U.S. Department of Transportation’s Pipeline and Hazardous Materials Safety Administration (PHMSA) Office of Pipeline Safety (OPS) is the federal safety authority for ensuring the safe, reliable, and environmentally sound operations of our nation’s pipeline transportation system. An important component of OPS’s mission is to promote pipeline safety communication and education.

Pipeline safety is a responsibility shared by all stakeholders. Community and pipeline safety is improved through active stakeholder participation, especially with regard to public awareness, damage prevention, risk-informed land use planning, and emergency management efforts.

Wyoming May Act to Plug Abandoned Wells as Natural Gas Boom Ends – NYTimes.com

Wyoming May Act to Plug Abandoned Wells as Natural Gas Boom Ends – NYTimes.com.

Ohio Updates Best Management Practices for Pipeline Installation and Soil Health – News from the Ohio Department of Natural Resources

Ohio Updates Best Management Practices for Pipeline Installation and Soil Health – News from the Ohio Department of Natural Resources.


Link to standards in text

Streamlining SEQR

Streamlining SEQR.


Streamlining SEQR

How to Reform New York’s “Environmental” Planning Law

by: E.J. McMahon and Michael Wright
Complete report in PDF format
December 16, 2013


Major residential, commercial and industrial developments throughout the country are subject to an array of federal and state laws designed to protect the environment, buttressed nearly everywhere by local land-use regulations addressing the community impacts of such projects.

In New York, however, these regulations are wrapped in the added red tape of the State Environmental Quality Review Act, or SEQR.

In this, as in so many areas of regulatory policy, the Empire State is an outlier. Less than one-third of all states have similarly comprehensive environmental review statutes —and fewer have laws as broadly applicable as New York’s SEQR.

Nearly 40 years after its enactment, can SEQR be reformed to strike a better balance between environmental protection and economic growth? That’s a crucial question when much of New York, especially upstate, is suffering from what could be described as a severe development deficit.

Text Box: SEQR has been cited as adevelopment obstacle by several of the state’s regional economic development councils.While it would be difficult to quantify SEQR’s role in discouraging investment and job creation in New York, the added regulatory imposition certainly does little to expedite the building of new homes, businesses, factories and civic facilities. As currently written and interpreted, SEQR can be exploited to produce costly delays and uncertainty for the kind of job-creating projects New York desperately needs. Several of the state’s regional economic development councils have identified SEQR as an obstacle to development.

Governor Andrew Cuomo has responded to these complaints by allowing his state Department of Environmental Conservation (DEC) to float proposed rule changes designed to improve SEQR in response to years of complaints from private-sector developers. DEC says it is aiming to make the process more efficient and predictable “without sacrificing meaningful environmental review,” but the ideas it is considering don’t go far enough to achieve this goal.

This paper suggests that further changes are needed to truly streamline SEQR. At a minimum, the law should be revised to:

  • Reduce the potential for undue delays by imposing hard deadlines and incentives to ensure the process can be completed within a year.
  • Mandate “scoping” of environmental impacts at the first stage in the SEQR review process, but also more tightly restrict the introduction of new issues by lead agencies later in the process.
  • Eliminate the law’s reference to “community and neighborhood character” as an aspect of the broadly defined environment potentially affected by projects, since the concept already is defined by local planning and zoning laws.

Industry groups have proposed other, more specific changes that also deserve enactment as part of any meaningful SEQR reform process.


The peak of America’s postwar economic boom in the 1960s coincided with a growing public awareness of the increasingly troubling environmental impacts of untrammelled industrial, commercial and residential development.

The health hazards of air pollution in major metropolitan areas had been highlighted by incidents such as a four-day temperature inversion blamed for dozens of deaths in New York City in 1965. Water pollution was also a serious problem; in the nation’s industrial heartland, portions of the Great Lakes were literally dying— becoming uninhabitable by fish or plant life. Stretches of storied major waterways such as the Hudson River had become seriously polluted. During the same period, perceived assaults on the built environment of neighborhoods and communities had led to a grassroots backlash against major highway expansion projects in some cities.

These concerns led to the enactment of the National Environmental Policy Act (NEPA), signed by President Richard Nixon on January 1, 1970. NEPA required federal agencies to prepare assessments and impact statements of proposed major projects and policy changes affecting the “human environment,” broadly defined to include both “the natural and physical environment and the relationship of people with that environment.”1

NEPA would be the primary model for laws in states including New York, whose State Environmental Quality Review Act (SEQR) was enacted in 1975.

Text Box: SEQR, like the federal law that inspired it, defines “environmental impacts” broadly, going well beyond actions affecting the natural ecology of air, water, flora and fauna.

While NEPA applies only to federal executive branch agencies, SEQR applies to the actions of state and local agencies in New York. In relatively rare cases where the two jurisdictions overlap, the respective reviews can be coordinated, so that the impact statement required by NEPA can be used to fulfill obligations under SEQR.2

It’s important to note that these laws were not designed as government’s primary line of defense against pollution—a purpose served by other statutes and regulations largely adopted after NEPA in the 1970s.3

NEPA’s overarching goals extend well beyond protecting the natural ecology of air, water, plants and animals to encompass the regulation of “aesthetic, historic, cultural, economic, social, or health [impacts], whether direct, indirect, or cumulative.”4 In similarly broad language, SEQR defines environmental factors to also include “noise, resources of agricultural, archeological, historic or aesthetic significance, existing patterns of population concentration, distribution or growth.”5

New York’s law goes a big step further by also regulating potential impacts on “existing community or neighborhood character”—an amorphous concept that, in some cases, has been construed broadly enough to block projects otherwise permissible under existing local land-use ordinances.6

NEPA and SEQR also differ in several other significant respects.

Federal courts have determined that NEPA mandates for federal agencies are “essentially procedural.”7 In other words, the law’s principal effect is to describe the process federal agencies must follow to implement a major new policy or project—but not to shape outcomes consistent with its lofty aims.8

New York’s SEQR, by contrast, can be used to force changes to “mitigate” environmental impacts—not only dictating how a project is built, but effectively deciding whether it gets built at all. Perhaps even more importantly, SEQR requires an Environmental Impact Statement (EIS) if the project “may” cause a significant adverse environmental impact, whereas NEPA effectively requires an EIS only if a proposed action will “significantly affect the quality of the human environment.”9 This further expands the scope of actions covered by the state law. And before a project can win final approval, SEQR requires that adverse environmental impacts be “minimized to the maximum extent practicable.”10

SEQR’s broader scope and its requirement for “maximum extent practicable” mitigation as a condition for potential approval make it more expansive and stringent than its federal counterpart, NEPA; indeed, as will be shown below, it is among the most expansive and stringent laws of its type in any state.

LNG expansion in NY–regulations

DEC has Quietly Proposed New, Weak Rules for LNG Facilities


The Public Comment Period ends November 4

Come learn: * how to submit comments * what points to make in your comments


Keith Schue with Sandra Steingraber
 and the  “Return of 30 Days” Website

When:         Wednesday, Oct. 23, 7 pm Where:        First Unitarian Church, Ithaca 306 N. Aurora Street, on the NW Corner with E. Buffalo


http://unitarian.ithaca.ny.us/Newcomers/How-to-find-us Reception:       Enjoy homemade snacks and conversation following the program More Info:   Sandy Podulka, email: sgp4@cornell.edu


Background: Despite a moratorium on high-volume hydraulic fracturing, the New York Department of Conservation (DEC) is quickly and quietly trying to adopt new rules for Liquefied Natural Gas (LNG) facilities that would pave the way for fracking, threaten communities, and make us more dependent on fossil fuel. We must fight this new threat!

Keith Schue and Sandra Steingraber have scrutinized the regulations.  They will present their analyses of the weaknesses and provide fodder for your comments to DEC.

The new permitting regulations (6 NYCRR 570) allow a wide range of LNG facilities, including: - LNG import/export terminals – peak-shaving plants that produce/store/vaporize LNG – regional LNG production facilities – LNG production at natural gas wells – LNG production at facilities with access to a natural gas pipeline, and – LNG fueling facilities without on-site production of LNG


The so-called regulations provide: –no setbacks from homes or businesses –no restrictions on noise –no requirement to follow local ordinances and zoning regulations –no limits on emissions of air pollutants, such as methane –no rules to monitor or report air pollution emissions –no limits on environmental damage allowed by the facilities

Furthermore, the companies don’t have to post bonds to cover the costs of accidents to the environment, people, or property, or to close the facilities when they are no longer of use. This leaves the taxpayers to foot the bill.

More Information on Commenting:


DEC web page with info on how to submit comments:  http://www.dec.ny.gov/regulations/93069.html

Wiki-page by Chip Northrup and Keith Shue, on what comments to make:  http://www.sourcewatch.org/index.php/New_York_LNG_regulations The Return of 30 Days: Infrastructure Regs: http://www.thirtydaysoffrackingregs.com/index.php –web page by Sandra Steingraber giving background on a different comment to make each day between now and Nov. 4

Syracuse Frackdown: Rally Against Fracking Infrastructure at DEC Meeting

The NYS DEC is considering regulations and permits for proposed Liquefied Natural Gas (LNG) facilities in New York State. This is just one example of a massive fracking infrastructure build out in the state. Nat Gas pipelines, compressor stations, wastewater treatment, powerplant conversions, the LPG storage facility in Seneca Lake and now LNG export facilities are in the works and are all a part of the attempt to bring fracking into the state.

Frack Action, New Yorkers Against Fracking, Physicians Scientists & Engineers for Healthy Energy, and ShaleShockCNY called a press conference and rally ahead of the DEC’s information session on DEC’s proposed permitting program for the siting, construction, and operation of Liquefied Natural Gas (LNG) facilities.  The DEC public meeting and the press conference were had at the New York State Fairgrounds in Syracuse, NY on October 16, 2013.   This event was also a part of the Global Frackdown, a global day (and week) of action against fracking. Learn more here: http://www.globalfrackdown.org/

posterSpeaking at the press conference were Renee Vogelsang of Frack Action; Keith Schue (5:18), a former engineer with experience in policy and regulatory review; Mary Menapace (13:11), a nurse at Upstate Medical; active with ShaleShockCNY; Dr. Sandra Steingraber (16:20), internationally acclaimed author, biologist, and distinguished school in residence at Ithaca College; Joe Heath (22:01), General Counsel for the Onondaga Nation, affiliated with many grassroots organizations in the region including Stop the I-81 Pipeline.


There has been a de facto moratorium on LNG facilities since a catastrophic LNG blast on Staten Island over 40 years ago that killed 37 workers. Construction of new LNG facilities was expressly prohibited statewide by law after that explosion, but except in New York City, where a moratorium remains in effect until 2015, the legislative prohibition on LNG facilities ended in 1999.  However, a “de facto” statewide ban still exists because DEC has not yet established a permitting program.

DEC’s rule making must be in accord with New York Environmental Conservation Law ECL Article 23 Title 17 for Liquified Natural and Petroleum Gas.  DEC’s proposed rules are woefully inadequate and fail to address what is mandated for rule making.  For details of these severe short comings, see New York LNG regulations on SourceWatch.org.  To learn and respond with pubic comments on DEC’s LNG rules, as well as the related FERC (federal) review on Natural Gas Storage), and the Post Ambrose Liquified Natural Gas (LNG) port near the entrance to New York Harbor, check out “The Return of 30 Days: The Infrastructure Regs” thirtydaysoffrackingregs.com.

DEC will be holding a second information session followed by a public hearing in Albany on October 30.  Details below:

From the DEC website: “Notice is hereby given that the New York State Department of Environmental Conservation (NYS DEC) is proposing to adopt 6 NYCRR Part 570 to implement a permitting program for the siting, construction, and operation of Liquefied Natural Gas (LNG) facilities in New York State (NYS). LNG facilities are those that either store LNG in a tank system or convert LNG into natural gas through vaporization. The two types of facilities that NYS DEC expects to permit most frequently include facilities to fuel trucks and facilities that store LNG as a backup heating fuel.”

Read More from DEC: http://www.dec.ny.gov/enb/20130911_not0.html

Public Meetings: NYS DEC will conduct public information meetings to present the proposed regulations and respond to questions prior to the public hearing- 10/30 at DEC HQ in Albany.

Date: Wednesday, October 16, 2013 Time: 1:00 p.m. – 3:00 p.m. Location: New York State Fairgrounds 581 State Fair Blvd, Martha Eddy Room Syracuse, NY

Date: Wednesday, October 30, 2013 Time: 10:00 a.m. – 12:00 p.m. Location: NYS DEC – Central Office 625 Broadway, Room 129 Albany, NY

Public Hearing: A legislative public hearing to receive public comment about the proposed rule making will be held as follows:

Date: Wednesday, October 30, 2013 Time: 2:00 p.m. Location: NYS DEC – Central Office 625 Broadway, Room 129 Albany, NY


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