Dogs and Phosphoric Acid...one more time.

In the words of Peter Griffin "You know what really grinds my gears?"  How we describe the hazards of a chemical when it is found to be present in the environment.

All chemicals pose a hazard at a particular dose.  If it is under that dose, then the hazard seen at a higher dose does not apply.

Yes, it is that simple.

In two previous posts I tried to explain this concept using dogs and phosphoric acid found in a can of Coke.  To summarize:

If you are describing a dog that you will come in contact with that looks like this:




Don't make it sound like it looks like this:

Which brings me to the EPA's "Imminent and Substantial Endangerment Order to Protect Drinking Water in Southern Parker County." (1)  In the Order, the EPA states:

The EPA says that contaminants are present in the aquifer.  The term "contaminant" means:

[A]ny physical, chemical, biological, or radiological substance or matter in water. (2)

What the EPA is claiming is that they found "substances" in the water.  That definition does not require that the concentration - dose - be at any particular level, only that "any" amount was found to be present. "Any" means any.

The EPA goes on to say in the order:

These substances, according to the EPA, are in an "any" amount that may present an "imminent and substantial endangerment to the health of persons."

Notice what it says about the ingestion of benzene - one of the contaminants found:

[B]enzene if ingested or inhaled could cause cancer, anemia, neurological impairment and other adverse health impacts."

In other words, the EPA is telling us is that if you walk into this kennel (drink water from this aquifer) you will run into this dog:

What type of dog did the EPA actually find:

And:

Benzene - a "contaminant" - was found to be present in the water at the following concentrations:

3.1 ppb or 0.0031 ppm
6.12 ppb or 0.00612 ppm
4.55 ppb or 0.00455 ppm

The average benzene concentration is:

4.59 ppb or 0.00459 ppm

I wonder if the EPA has anything to say about how much of a "contaminant" can be found in drinking water before it is considered unsafe?  You know, like is there a maximum amount of certain chemicals that determine if the water is safe to drink?  Like maybe something called a "maximum contaminant level" or "MCL?"

Well by golly, there is!  Here is what the EPA has established under the SDWA:

Maximum Contaminant Level (MCL) - The highest level of a contaminant that is allowed in drinking water. MCLs are set as close to MCLGs as feasible using the best available treatment technology and taking cost into consideration. MCLs are enforceable standards.

Maximum Contaminant Level Goal (MCLG) - The level of a contaminant in drinking water below which there is no known or expected risk to health. MCLGs allow for a margin of safety and are non-enforceable public health goals. (3)

So an MCL is the "highest level" of a contaminant allowed in drinking water below which "there is no known or expected risk to health."

In other words, if the concentration of the contaminant found in the drinking water is below the MCL or MCLG, there would be "no known or expected risk to health" according to the EPA.

I wonder if the EPA has established an MCL for benzene?  By golly, they have!

http://water.epa.gov/drink/contaminants/index.cfm

The MCL for benzene is 0.005 ppm.  What was the benzene concentration in the three samples:

3.1 ppb or 0.0031 ppm
6.12 ppb or 0.00612 ppm
4.55 ppb or 0.00455 ppm

The average benzene concentration is:

4.59 ppb or 0.00459 ppm

Only one of the three samples had a concentration above the MCL of 0.005 ppm with the average benzene concentration below it.  Based on this, the EPA should have said that there is no known or expected risk to health associated with the benzene.  Instead the EPA states:

There is no MCL for hexane, propane, or ethane.  The MCL for toluene is 1 ppm.  All three samples were well below this.

This is the same thing as telling a Coke drinker about the phosphoric acid in their drink:

Phosphoric acid is corrosive.  Ingestion may produce burns to the lips, oral cavity, upper airway, esophagus and  possibly the digestive tract. Circulatory collapse. Unconsciousness, possibly death. (post)

Did the water pose an "Imminent and Substantial Endangerment" to public health?  Possibly.  Maybe because of the flammability of the methane, propane, and ethane found.  Flammability - based on flash point, flammable range, or percent LEL - was not determined by the EPA.

Is it possible that enough gas could form in the well?  I'm not sure about that.  The flammable range of methane is 5-15% in the air. (3).  Sampling of the air for LEL within the well would be required to make a flammability determination at the concentrations found.  The fact that the pumps locked up and effervescence was noticed makes further review necessary.

Flammability is the only potential "Imminent and Substantial Endangerment" situation that may be present.  The presence of "any" contaminants found fall below EPA's MCLs and should not have been mentioned as their level in the water presents "no known or expected risk to health."

Rule number 1:  If the contaminants fall below the MCL do not identify them as a possible health concern, or as a health concern greater than what the dose would manifest. (Dogs)

Rule number 2: Do not describe health hazards associated with a chemical at a dose that is higher than what is actually found. (phosphoric acid)


Now, where was I?  Oh yeah, the Seven Deadly Sins...

Next Post: Seven Deadly Sins: I'm not seeing it.


..

Seven Deadly Sins: 22 years ago there was a problem.

Under the seven deadly sin of "The Safe Drinking Water Act" Earthwork's Renee Lewis Kosnik writes:

Unfortunately, the EPA’s findings are not consistent with the numerous personal accounts of those living in oil and gas patches around the country.  Peggy Hocutt and her husband retired to their house on the river in Jefferson County, Alabama. After years of mysterious ailments affecting everyone in the area and tap water that smelled of petroleum, Mrs. Hocutt had black, jellied grease coming out of her faucets. She and many of her neighbors also had cancer. The energy company hydraulically fracturing in that area and the state of Alabama refused to admit that their aquifer had been contaminated by fracking activities. Instead, the company refused to renew their land lease and evicted them from the property. They lost their physical and mental well being, as well as a forty-year investment in their retirement home.

What is interesting to me is that the paragraph before this states:

The EPA released its final version of the Phase I study in 2004 entitled, Evaluation of Impacts to Underground Sources of Drinking Water by Hydraulic Fracturing of Coalbed Methane Reservoirs. The main finding of this study stated, “the injection of hydraulic fracturing into CBM wells poses little or no threat to Underground Sources of Drinking Water.

In other words, we hear what you are saying EPA, but we don't believe you.  I mean look what happened to Mrs. Hocutt!  Explain that EPA!

You can read about Mrs. Hocutt's situation here.  Excluding a direct link to her cancer, assuming that everything she reports is true, lets look at why this is a poor example to justify why:

Hydraulic fracturing must be regulated by the Environmental Protection Agency under the Safe Drinking Water Act in order to adequately protect the United State’s drinking water supply from the harmful chemicals used during this process.

Twenty-three years ago  The Alabama State Oil & Gas Board, Tuscaloosa, Alabama, issued Permit #5946-C., to USX-Amoco Oil Production, in September, 1988.  According to Mrs. Hocutt:

When the gas well was operable, the run-off was piped directly from the site to a point and then left to run uncontrolled down a hillside gully, through a culvert, and down a ravine where it then emptied into the slough behind our boathouse.  The run-off was the color of Coca Cola, foamy, with oily streaks in it, and smelled like oil and rotten eggs.  It killed all plant life and water creatures in its path.  I never again saw another salamander, bull frog, or lily pad around our boathouse. I didn't know anything about methane gas wells at that time, but I realized if the run-off killed plant life and water creatures, it certainly posed a potential danger to the health of humans.

OK, stop right there.  Again, assuming this is true, this is a violation of the Clean Water Act.  Period.  No industry, including Oil & Gas, may discharge into waters of the United States without a permit:

As authorized by the Clean Water Act, the National Pollutant Discharge Elimination System (NPDES) permit program controls water pollution by regulating point sources that discharge pollutants into waters of the United States. Point sources are discrete conveyances such as pipes or man-made ditches. [I]ndustrial, municipal, and other facilities must obtain permits if their discharges go directly to surface waters. Since its introduction in 1972, the NPDES permit program is responsible for significant improvements to our Nation's water quality. (1)

[A]n NPDES permit issued for the drilling activity would need to be consistent with 40 CFR Part 435, Subpart C, which states that ‘there shall be no discharge of wastewater pollutants into navigable waters from any source associated with production, field exploration, drilling, well completion, or well treatment (i.e., produced water, drilling muds, drill cuttings, and produced sand). (2)

That requirement has been on the books since 1972.  No additional regulation under the SDWA would have changed the situation for Mrs. Hocutt.

Assuming that what Mrs. Hocutt said is true, the issue was in violation of the CWA and is not a SDWA issue.  The situation described is alleged contamination of surface water that led to the alleged contamination of drinking water from her well.

The SDWA does not regulate private groundwater wells.  It regulates public water systems as well as underground injection wells.  This is where the issue with oil & gas comes to a head with folks like Earthworks:

‘Underground injection’ is defined as the “subsurface emplacement of fluids by well injection.” In 2005, legislative amendments made clear that the SDWA does not regulate hydraulic fracturing operations. The Energy Policy Act of 2005 amended the SDWA to exclude from the definition of underground injection “the underground injection of fluids or propping agents (other than diesel fuels) pursuant to hydraulic fracturing operations relating to oil, gas, or geothermal activities.” Many sources critical of the exception refer to it as the “Halliburton Loophole.” Thus, with the exception of fracing using diesel fluids, the SDWA does not impose direct regulation. (3)

The situation that happened to Mrs. Halcutt 22 years ago is not an appropriate example to use for explaining why hydraulic fracturing should fall under the Underground Injection Control (UIC) program.  Surface water discharge contamination of underground drinking water supplies are covered under the Clean Water Act.

A more appropriate example would be this:

EPA Letter

In this case, the EPA contends that the extraction process has released methane into the drinking water wells:

As a result of investgatory work performed, the [EPA] has determined that an imminent and substantial endangerment to a public drinking wateraquifer has occured (or may occur) through methane contamination which is directly related to oil and gas production facilities under your operation.

This is a proper example to use when making a claim that compliance under the SDWA's UIC program may be necessary.  Not a surface water release that happened 22 years ago.

With this example, the question now can be posed as such:

Would the UIC program have required anything more substantive in terms of drilling, cementing, and casing than is already required of oil & gas by the Texas RRC? (see post).  Secondly, does this one case of methane entering into the drinking water indicate a problem inherent in all hydraulic fracturing wells?

But first, I need to get something off my chest...

Next Post: Dogs and Phosphoric Acid...one more time.

Seven Deadly Sins: Oil & Gas gets away with nothing.

Out of town...again.  Starbucks and the local newspaper...

A spokeswoman for the Environmental Working Group, a coalition of community and environmental organizations, said the panel’s draft recommendations were “disappointing.”

“They do state some obvious grievances with fracking — such as the general need for more regulation, air pollution controls and more disclosure from companies,” said Leeann Brown in an e-mail. “However, they refuse to reference the seven deadly sins of the fracking industry — the exemptions from seven major environmental and health protection laws.” (Can't find the link, but this was basically what was printed)

Seven deadly sins of the fracing industry?  Well that got my curiosity up, so with a little bit of research I found them, here.  The basic contention is that the Oil & Gas industry "enjoys sweeping exemptions from provisions in the major federal environmental statutes intended to protect human health and the environment.

1. Comprehensive Environmental Response, Compensation, and Liability Act
2. Resource Conservation and Recovery Act
3. Safe Drinking Water Act
4. Clean Water Act
5. Clean Air Act
6. National Environmental Policy Act
7. Toxic Release Inventory under the Emergency Planning and Community Right-to-Know Act

There they are, the seven deadly sins.  You can read the paper to find out why the author,  Renee Lewis Kosnik, MSEL, JD, Research Director, Oil and Gas Accountability Project (a project of Earthworks, 2007), believes these exemptions are should be done away with.  

What I want to do is to try and show how an exemption or exclusion does not mean the varmint is gettin' away with somthin'.  I call this blog the "Wacky World of Waste" for a reason, and that reason is because of how absurd regulations can be, especially how the Resource Conservation and Recovery Act (RCRA) identifies what is a hazardous waste.  If you ever attend my Hazardous Waste Management course, you will hear me say two things (spoiler alert!)

1. Check you logic at the door.
2. It's about the definition, not the hazard.

The reason I am writing about these "seven deadly sins" is because I was made aware of them on August 11, 2010 just like many other folks who read the same syndicated article that appeared in many other newspapers.  Quoting Earthworks' Leeann Brown's contention that the oil and gas industry "refuses to reference" these exemptions implies that there is something sinister going on.

If you take Earthworks word for it, there is.  But is there?

First of all, lets get one thing straight.  There are a lot of reasons for providing an industry or activity an exemption.  Sometimes they are purely political, but most of the time there are sound reasons for doing so. The bottom line question that must always be asked is does the exemption contribute to the problem or is it benign?

In the case of Oil & Gas, Earthworks contention is that these seven exemptions are allowing this industry "to streamline their piracy and contamination of the American public."  In other words, if we were to do away with these exemptions and exclusions, oil and gas would no longer be legally allowed to "contaminate" our land, air, and water.  This statement by Earthworks implies that the Oil & Gas industry is at this very moment unfettered by any laws and regulations regarding environmental contamination and pollution.

That is untrue.

Let's look at Texas.  Texas, as you might expect is very - and I mean VERY - Oil & Gas Friendly.  So Friendly in fact that they allow Oil & Gas to be regulated not by the State's EPA, the TCEQ, but by an industry loving Rail Road Commission (RRC). Surely under this cozy relationship Oil & Gas would be allowed to do what ever it pleases in pursuit of good ol' Texas T.

So let's look at how Texas Regulates Oil & Gas under the RRC: (Source)

In Texas, fracing is not formally regulated. The only regulations that apply to fracing operations also apply to all other oil and gas operations. The RRC promulgates and enforces regulations related to oil and gas matters and has jurisdiction over all “oil and gas wells in Texas; persons owning or operating pipelines in Texas; and persons owning or engaging in drilling or operating oil or gas wells in Texas.

Like all oil and gas development in Texas, fracing operations require the RRC to issue a permit authorizing drilling and/or deepening of a well.

Besides the standard permitting, two key areas where the RRC’s regulations have an impact on fracing operations (other than standard permitting):

• 16 TAC § 3.8 “Water Protection”

• 16 TAC §3.13 “Casing, Cementing, Drilling, and Completion Requirements.” 

In addition to permitting regulation, §3.8 also regulates the storage, transfer and disposal of oil and gas wastes. Presumptively, this includes any fracing fluids that are brought back to the surface as part of oil and gas production.

Earthworks contends that the "seven deadly sins" allow Oil & Gas to "contaminate the American public" by allowing "toxic chemicals and hazardous wastes [to permeate] the soil, water sources and the air threatening human health to an alarming extent." (1)

Well here is what 16 TAC § 3.8 “Water Protection” has to say about that:

(b) No pollution. No person conducting activities subject to regulation by the commission may cause or allow pollution of surface or subsurface water in the state.

That, by the way, is the first regulation you come to after "(a) definitions."  Now let's look at how Texas defines "pollution:"

(a)(28) Pollution of surface or subsurface water--The alteration of the physical, thermal, chemical, or biological quality of, or the contamination of, any surface or subsurface water in the state that renders the water harmful, detrimental, or injurious to humans, animal life, vegetation, or property, or to public health, safety, or welfare, or impairs the usefulness or the public enjoyment of the water for any lawful or reasonable purpose.

In Texas, Oil & Gas is regulated quite significantly by the RRC (2).  If Texan's don't allow the Oil & Gas industry to pollute under their industry friendly regulations, isn't it quite possible that federal regulations prohibit the same thing?

Basically it comes down to this: If the Oil & Gas industry is prohibited from causing or allowing "pollution of surface or subsurface water in the state" would removing those seven exemptions and exclusions change anything?  

The need for additional permitting or regulation will not stop something that is not there in the first place.  If, as Earthworks contends, Oil & Gas is allowing "toxic chemicals and hazardous wastes [to permeate] the soil, water sources and the air threatening human health to an alarming extent," why is this being allowed to happen under current law?

It is not happening.

And if any company sets out to operate in a way that does threaten public health or the environment, no amount of permitting, rules, regulations, or laws will stop them.  So for these bad apples, inspection and enforcement is the only option - unless you propose throwing the baby out with the bathwater.  

In her report, Earthwork's Renee Lewis Kosnik writes: "it is time regulators focus on the adequacy of existing regulations to protect human health and the environment from the real and potential dangers of the oil and gas industry’s waste."  Well they have:

"The [RRC] commission's strict rules in effect now on how wells are constructed have protected and continue to protect groundwater.  The decades-long safety record on fracking in Texas backs this up." (3)

But what about Jefferson County, Alabama's Peg Hocutt "mysterious ailments affecting everyone in the area and tap water that smelled of petroleum?"

Yeah...about that...

Next post: Seven Deadly Sins: 22 years ago there was a problem.

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