To the SRBC from Prof. James T. O'Reilly
I am writing as a scholar of interstate compact regulation and I enjoyed learning of this issue as I participated in the spring 2011 American Bar Assn. panel on the Delaware Basin Commission gas fracking regulations. For background, I am an elected Ohio city council member and have written 45 books, several on federal/state environmental regulatory issues. I own no land and have no financial interests in the Susquehanna Basin, and my views are personal observations from extensive research into the waste issues resulting from natural gas high volume hydro fracturing (fracking) in Ohio and other states.
The optimal public service benefit from a Commission like yours is that it can stretch across boundaries and consider the greater good of the wider community. Water resources are a natural issue for the beneficial long-term protective interests of an organization like the SRBC.
After consideration of the internet postings concerning the current rulemaking, I urge the SRBC to limit the taking of surfacewaters and groundwater for the end-use extractive purpose of gas fracking. I urge the limitation be a form of allocating the SRBC water resource for human consumption first, then for agriculture and manufacturing industrial uses, and that a separate residual category be limited to cover a small residual ration for "Non-Returnable Extractive Removals Associated with Chemical and Geological Operations". The legal basis of the distinction is on the holistic water cycle, and the relative ease of returnability and recharge for human and agricultural uses, contrasted to fracking's divergent context.
The distinction I urge you to draw is a reflection of the soup of chemicals which appear in brine ponds after the fracking well outflow is removed. This hazardous soup or brine is not able to be released into surface water because of the high bromine compounds, which would react to form trihalomethanes in SDWA-registered water supply intakes, and which cannot effectively be treated by POTWs like a normal sewer plant.
The fracking wastewater content is not returnable to the SRBC's water "inventory" because of its hazardous chemical and low level radioactive status which forces adjacent water well owners to seek bottled water or remote clean water supplies. Secrecy about the content of the soup is intentional from the drilling companies, so they should bear the fallout from their actions. Ultimately it is the extractive industry's burden to explain how this differentiation could be overcome; the normal model of return to the public watershed "inventory" by agriculture or human-use wastewater through a POTW is well understood, but the soup emerging from fracking is incompatible with return/recharge. The inability of the public servants to discern a biochemical basis for its simple POTW treatment is the result of secrecy, sloppiness and random shifting of fracking "recipes" from well to well or driller to driller.
"Non-returnable" is a legally defensible category distinction, because the soup is leaving the SRBC territory to be dumped into Class II UIC injection wells remote from your basin. Even if it were treatable, the POTW would be violating CWA standards for release of a mixture whose components had been kept secret by the formulator. How much biocide should the SRBC communities drink; how much is being used of which secret formula in which wells?
I urge the SRBC to allocate a small fraction, perhaps 1 percent of available water resources per subarea of the basin, to this category of "Non-Returnable Extractive Removals Associated with Chemical and Geological Operations". Do not treat the removals like conventional user withdrawals, and limit the size of their withdrawal to a small enough fraction to respect the priority of human-beneficial uses.
In Ohio we have been hearing a great deal about the French government's refusal of fracking in France, while its state-owned Total SA invests in Marcellus shale fracking; the Chinese government investments are similarly broadcast in business pages. SRBC would be well served to ask the proponents of high volume hydrofracking to immediately import the best Chinese and French technology and their POTW experiences with handling the soup that their funds are creating, pond by pond, across Pennsylvania and Ohio. Put the burden on those who opt to make the water "non-returnable" to prove a simple way in which their soup can be a regular part of the conventional water cycle. Until they do, limit their water extraction to 1% of the amounts that human drinking water and agricultural irrigation are temporarily removing and recycling. They will of course criticize "technology forcing". Let foreign technology follow foreign dollars, lest the people of your basin be deprived of the resource they need for the future. Thank you for your consideration.
Prof. James T. O'Reilly, College of Law
University of Cincinnati
PO Box 210040 Cincinnati OH 45221-0040 J[email protected]