Oil and Gas; Hydraulic Fracturing on Federal and Indian Lands
Supplemental Notice Of Proposed Rulemaking And Request For Comment.
On May 11, 2012, the Bureau of Land Management (BLM) published in the Federal Register a proposed rule entitled Oil and Gas; Well Stimulation, Including Hydraulic Fracturing, on Federal and Indian Lands. The BLM has used the comments on that draft to make improvements and is now seeking additional comment on a revised proposed rule. Key issues in this updated draft include: the use of an expanded set of cement evaluation tools to help ensure that usable water zones have been isolated and protected from contamination; and more detailed guidance on how trade secrets claims will be handled, modeled on the procedures promulgated by the State of Colorado. The revised proposed rule would also provide opportunities for the BLM to coordinate standards and processes with individual States and tribes to reduce administrative costs and to improve efficiency.
3 actions from May 11th, 2012 to July 2013
May 11th, 2012
September 10th, 2012
- NPRM Comment Period End
- Second NPRM
Table of Contents Back to Top
- FOR FURTHER INFORMATION CONTACT:
- SUPPLEMENTARY INFORMATION:
- Executive Summary
- I. Public Comment Procedures
- II. Background
- III. Discussion of the Revised Proposed Rule and Comments on the Proposed Rule
- Section-by-Section Discussion of the Revised Proposed Rule and Discussion of Comments
- Comments Addressed in This Revised Proposed Rule
- General Comments on the Initial Proposed Rule
- Section Discussion
- Comments on What the Notice of Intent Sundry Must Include
- Section Discussion
- Comments on Cement Bond Logs
- Section Discussion
- Comments on Mechanical Integrity Testing
- Section Discussion
- Comments on the Handling of Recovered Fluids
- Section Discussion
- Comments on Information That Must Be Provided to the BLM After Completed Operations
- Comments On Information Claimed To Be Exempt From Public Disclosure
- Section Discussion
- IV. Procedural Matters
- Federal and Indian Oil and Gas Leasing Activity
- Estimating Benefits and Costs
- Measuring the Incremental Change
- Costs Framework
- Benefits Framework
- Discounted Present Value
- Estimated Costs of Revised Proposed Rule
- Average Compliance Costs for Operators
- BLM Administrative Burden
- Benefits of the Revised Proposed Rule
- Economic Impact Analysis and Distributional Assessments Energy System Impact Analysis
- Employment Impact Analysis
- Executive Order 12866, Regulatory Planning and Review
- Regulatory Flexibility Act
- Small Business Regulatory Enforcement Fairness Act
- Unfunded Mandates Reform Act
- Executive Order 12630, Governmental Actions and Interference With Constitutionally Protected Property Rights (Takings)
- Executive Order 13352, Facilitation of Cooperative Conservation
- Executive Order 13132, Federalism
- Executive Order 13175, Consultation and Coordination With Indian Tribal Governments
- Executive Order 12988, Civil Justice Reform
- Paperwork Reduction Act
- Summary of Information Collection Requirements
- 1. Necessity/Avoidance of Unnecessary Duplication
- 2. Practical Utility
- 3. Reduction of Burdens on the Public
- National Environmental Policy Act
- Data Quality Act
- Executive Order 13211, Actions Concerning Regulations That Significantly Affect Energy Supply, Distribution, or Use
- Clarity of the Regulations
- List of Subjects 43 CFR Part 3160
- 43 CFR Chapter II
- PART 3160—ONSHORE OIL AND GAS OPERATIONS
- Subpart 3160—Onshore Oil and Gas Operations: General
- Subpart 3162—Requirements for Operating Rights Owners and Operators
Tables Back to Top
- Table 1—Sample Hydraulic Fracturing Fluid Product Component Information Disclosure
- Hydraulic Fracturing Fluid Composition
- Table 2—Federal and Indian Oil and Gas Production and Royalties, Fiscal Year 2012
- Table 3—Summary of Costs
- Table 4—Summary of Non-Monetized Benefits
- Table 5—Average Compliance Costs in 2013 Across All Operations for the Rule, Alternative 1, and Alternative 2
- Table 6—The Average Compliance Costs of the Revised Proposed Rule as a Percent of Total Drilling Costs
DATES: Back to Top
Send your comments on this supplemental notice of proposed rulemaking (SNPR) to the BLM on or before June 24, 2013. The BLM need not consider, or include in the administrative record for the final rule, comments that the BLM receives after the close of the comment period or comments delivered to an address other than those listed below (see ADDRESSES). If you wish to comment on the information collection requirements in this SNPR, please note that the Office of Management and Budget (OMB) is required to make a decision concerning the collection of information contained in this SNPR between 30 to 60 days after publication of this document in the Federal Register. Therefore, a comment to OMB is best assured of being considered if OMB receives it by June 24, 2013.
ADDRESSES: Back to Top
Mail: U.S. Department of the Interior, Director (630), Bureau of Land Management, Mail Stop 2134 LM, 1849 C St. NW., Washington, DC 20240, Attention: 1004-AE26. Personal or messenger delivery: Bureau of Land Management, 20 M Street SE., Room 2134 LM, Attention: Regulatory Affairs, Washington, DC 20003. Federal eRulemaking Portal: http://www.regulations.gov. Follow the instructions at this Web site.
Comments on the information collection requirement: Fax: Office of Management and Budget (OMB), Office of Information and Regulatory Affairs, Desk Officer for the Department of the Interior, fax 202-395-5806. Electronic mail: firstname.lastname@example.org. Please indicate “Attention: OMB Control Number 1004-0203,” regardless of the method used to submit comments on the information collection burdens. If you submit comments on the information collection burdens, please provide the BLM with a copy of your comments, at one of the addresses shown above.
FOR FURTHER INFORMATION CONTACT: Back to Top
Steven Wells, Division Chief, Fluid Minerals Division, 202-912-7143 for information regarding the substance of the rule or information about the BLM's Fluid Minerals Program. Persons who use a telecommunications device for the deaf (TDD) may call the Federal Information Relay Service (FIRS) at 1-800-877-8339 to contact the above individual during normal business hours. FIRS is available 24 hours a day, 7 days a week to leave a message or question with the above individual. You will receive a reply during normal business hours.
SUPPLEMENTARY INFORMATION: Back to Top
Executive Summary Back to Top
“Hydraulic fracturing,” a process used to stimulate production from oil and gas wells, has been a growing practice in recent years. Public awareness of hydraulic fracturing has grown as new horizontal drilling technology has allowed increased access to shale oil and gas resources across the country, sometimes in areas that have not previously or recently experienced significant oil and gas development. The rapid expansion of this practice has caused public concern about whether fracturing can lead to or cause the contamination of underground water sources, whether the chemicals used in fracturing should be disclosed to the public, and whether there is adequate management of well integrity and the “flowback” fluids that return to the surface during and after fracturing operations.
The Bureau of Land Management (BLM) oversees approximately 700 million subsurface acres of Federal mineral estate and 56 million subsurface acres of Indian mineral estate across the United States. This revised proposed rule and the initial proposed rule would modernize BLM's management of hydraulic fracturing operations by ensuring that hydraulic fracturing operations conducted on the public mineral estate (including split estate where the Federal Government owns the subsurface mineral estate) follow certain best practices, including: (1) The public disclosure of chemicals used in hydraulic fracturing operations on Federal and Indian lands; (2) Confirmation that wells used in fracturing operations meet appropriate construction standards; and (3) A requirement that operators put appropriate plans in place for managing flowback waters from fracturing operations.
Like the initial proposed rule, this revised proposed rule would apply to Indian lands so that these lands and communities receive the same level of protection provided on public lands. In most cases, the requirements in this rule can be satisfied by submitting additional information during the existing process that the BLM currently applies to operators when reviewing and approving an operator's Application for Permit to Drill (APD) on public or Indian lands. The rule would require that disclosure of the chemicals used in the fracturing process be provided to the BLM after the fracturing operation is completed. This information may be submitted to the BLM through an existing Web site known as FracFocus.org, already used by some states for reporting mandatory chemical disclosure of hydraulic fracturing chemicals. Submission of this information through this Web site allows an operator to provide the public and many State and tribal regulators with prompt access. This approach also has the benefit of reducing reporting burdens for oil and gas operators by avoiding duplicative reporting requirements and administrative duties for the BLM in many instances.
The BLM developed this revised proposed rule and the initial proposed rule with the intention of improving public awareness and strengthening oversight of hydraulic fracturing operations without introducing unnecessary new procedures or delays in the process of developing oil and gas resources on public and Indian lands. Some states, like Colorado, Wyoming, Arkansas, and Texas, have issued their own regulations addressing disclosures and oversight for oil and gas drilling operations. Operators with leases on Federal lands must comply with both BLM's regulations and with State operating requirements, including State permitting and notice requirements to the extent they do not conflict with BLM regulations. State regulations pertaining to hydraulic fracturing operations are not uniform. The States that have regulated hydraulic fracturing typically require some notification to a state agency and some require reporting on FracFocus. Other States have not taken action in this area. This revised proposed rule seeks to create a consistent oversight and disclosure model that will apply across all public and Indian lands that are available for oil and gas development, and aims to streamline and minimize the efforts required to comply with any new requirements, while also protecting Federal and tribal interests and resources. Currently nearly 36 million acres of Federal land are under lease for potential oil and gas development. These leases can be found on public land and for public minerals in 24 states The BLM has revised the proposed rule to reduce some of the information requirements to avoid duplication with the requirements of States (on Federal land) and tribes (on tribal land). The BLM has considered various options to encourage streamlining, flexibility, and more efficient operation on both BLM and tribal leases.
The BLM has for many years had a number of agreements with certain States and tribes concerning implementation of the various regulatory programs in logical and effective ways. The BLM will work with States and tribes to establish formal agreements that will leverage the strengths of partnerships, and reduce duplication of efforts for agencies and operators, particularly in implementing the revised proposed rule as consistently as possible with State or tribal regulations.
Similarly, the BLM has been looking to State regulations governing hydraulic fracturing for elements that should be incorporated into the revised proposed rule. Examples include allowing disclosure of chemical constituents of fracturing fluids through FracFocus, as required by several states, and adoption of the Colorado system of having operators submit an affidavit that undisclosed information about chemicals is entitled to protection as trade secrets.
Regarding Indian lands, the BLM fully embraces the statutes, Executive Orders, and other statements of governmental or departmental policy in favor of promoting tribal self-determination and control of resources. The Indian Mineral Leasing Act (IMLA), however, subjects all oil and gas operations on trust or restricted Indian lands to the Secretary's regulations and does not authorize the Secretary to allow tribes to opt out of these regulations. Nonetheless, the BLM is actively addressing ways to use tribal rules in the implementation of the revised proposed rule. For example, the proposed rule recognizes the authority that may be delegated to the States and the tribes to implement various environmental programs under the Safe Drinking Water Act to protect underground sources of drinking water and has been revised to defer to State (on Federal land) or tribal (on tribal land) designations of aquifers as either requiring protection from oil and gas operations, or as exempt from any requirement to isolate water-bearing zones in section 3162.3-3(b).
The revised proposed rule also adds a provision allowing the BLM to approve a variance that would apply to all lands within the boundaries of a State, a tribe, or described as field-wide or basin-wide, that is commensurate with the state or tribal regulatory scheme. The BLM must determine that the variance would meet or exceed the effectiveness of the revised proposed rule. State and tribes would be invited to work with the BLM to craft variances that would allow technologies, processes or standards required or allowed by the State or tribe to be accepted as compliance with the rule. Such variances would allow the BLM and the States and tribes to improve efficiency and reduce costs for operators and for the agencies.
The proposed changes to existing hydraulic fracturing oversight are partly in response to recommendations put forward by the Shale Gas Production Subcommittee of the Secretary of Energy's Advisory Board in 2011. Also, current BLM regulations governing hydraulic fracturing operations on public lands are more than 30 years old and were not written to address modern hydraulic fracturing technologies and practices. In preparing this revised proposed rule, the BLM received input from members of the public and stakeholders, and consulted with tribal representatives.
The changes from the original proposed well stimulation rule are discussed in greater detail below, but some of the notable changes include the following. This revised proposed rule would require use of cement evaluation logs (CELs) in the place of the originally proposed cement bond logs (CBL). The use of the broader term of CEL is intended to allow a variety of logging methods to be used to show the adequacy of cementing, including technologies such as ultrasonic logs, variable density logs, micro-seismograms, standard CBLs, CBLs with directional receiver array, ultrasonic pulse echo technique, and isolation scanners. CBLs would be accepted because they are one of the technologies included in CELs. However, if a State (on Federal land) or tribe (on Indian land) designates some other technology to meet its requirements for hydraulic fracturing wells that is at least as effective in assuring adequate cementing, the BLM may allow use of that technology as a variance from the CEL requirement.
The revised proposed rule would also change the operation of the trade secrets provision. The revised proposed rule allows operators to submit to the BLM an affidavit asserting exemption from disclosure of certain information having to do with the hydraulic fracturing fluid. The rule also gives the BLM the ability to demand the specific chemical details of any materials being proposed for trade secret exemption.
Further, although the BLM is not proposing a material change in the provision that allows hydraulic fracturing flowback fluids to be stored either in tanks or in lined pits, the BLM seeks comments on the costs and benefits of requiring flowback fluids to be stored only in closed tanks. Other provisions of the initial proposed rule have been modified for clarity or in response to comments. Accordingly, the entire revised proposed rule is available for public comment.
The BLM has analyzed the costs and the benefits of this proposed action in an accompanying Regulatory Impact Analysis available in the rulemaking docket. The estimated costs range from $12 million to $20 million per year. The range reflects uncertainty about the generalization of costs across all hydraulic fracturing operations. The potential benefits of the rule are more challenging to monetize than the costs, but that does not mean that the rule is without benefits. The rule creates a consistent, predictable regulatory framework, in accordance with the BLM's stewardship responsibilities under the Federal Land Policy and Management Act and other statutes, for hydraulic fracturing involving BLM-administered lands. The rule is designed to reduce the environmental and health risk that can be posed by hydraulic fracturing operations, particularly in the way the rule addresses flowback fluids, well construction, and hydraulic fracture design. The rule would ensure that operators demonstrate wellbore integrity with pressure tests on 100 percent of the hydraulically fractured wells and with CELs on the casing strings that protect usable water on each type well. A type well is an oil and gas well that can be used as a model for well completion in a field where geologic characteristics are substantially similar. The authorized officer would evaluate whether substantially similar geologic conditions exist during review of the APD or sundry notice requesting approval of a group of wells for a field. CELs would be required only of type wells, “wildcat” wells that are not approved as part of a field development proposal, and whenever there is evidence of a problem with the cement job. The BLM is asking for comments on the effectiveness of this proposal.
I. Public Comment Procedures
III. Discussion of the Revised Proposed Rule and Comments on the Proposed Rule
IV. Procedural Matters
I. Public Comment Procedures Back to Top
If you wish to comment, you may submit your comments by any one of several methods: Mail: You may mail comments to U.S. Department of the Interior, Director (630), Bureau of Land Management, Mail Stop 2134LM, 1849 C Street NW., Washington, DC 20240, Attention: 1004-AE26. Personal or messenger delivery: Bureau of Land Management, 20 M Street SE., Room 2134LM, Attention: Regulatory Affairs, Washington, DC 20003. Federal eRulemaking Portal: http://www.regulations.gov. Follow the instructions at this Web site.
You may submit comments on the information collection burdens directly to the Office of Management and Budget, Office of Information and Regulatory Affairs, Desk Officer for the Department of the Interior, fax 202-395-5806, or email@example.com. Please include “Attention: OMB Control Number 1004-0203” in your comments. If you submit comments on the information collection burdens, please provide the BLM with a copy of your comments, at one of the addresses shown above.
Please make your comments as specific as possible by confining them to issues directly related to the content of this revised proposed rule, and explain the basis for your comments. The comments and recommendations that will be most useful and likely to influence agency decisions are:
1. Those supported by quantitative information or studies; and
2. Those that include citations to, and analyses of, the applicable laws and regulations.
The BLM is not obligated to consider or include the comments received after the close of the comment period (see DATES) or comments delivered to an address other than those listed above (see ADDRESSES) in the Administrative Record for the rule.
Comments, including names and street addresses of respondents, will be available for public review at the address listed under ADDRESSES during regular hours (7:45 a.m. to 4:15 p.m.), Monday through Friday, except holidays. Before including your address, telephone number, email address, or other personal identifying information in your comment, be advised that your entire comment—including your personal identifying information—may be made publicly available at any time. While you can ask in your comment to withhold from public review your personal identifying information, we cannot guarantee that we will be able to do so.
II. Background Back to Top
Well stimulation techniques, such as hydraulic fracturing, are commonly used by oil and natural gas producers to increase the volumes of oil and natural gas that can be extracted from wells. Hydraulic fracturing techniques are particularly effective in enhancing oil and gas production from shale gas or oil formations. Until quite recently, shale formations rarely produced oil or gas in commercial quantities because shale does not generally allow flow of hydrocarbons to wellbores unless mechanical changes to the properties of the rock can be induced. The development of horizontal drilling, combined with hydraulic fracturing, has made the production of oil and gas from shale feasible. Hydraulic fracturing involves the injection of fluid under high pressure to create or enlarge fractures in the reservoir rocks. The fluid that is used in hydraulic fracturing is usually accompanied by proppants, such as particles of sand, which are carried into the newly fractured rock and help keep the fractures open once the fracturing operation is completed. The proppant-filled fractures become conduits for fluid migration from the reservoir rock to the wellbore and the fluid is subsequently brought to the surface. In addition to the water and sand (which together typically make up 98 to 99 percent of the materials pumped into a well during a fracturing operation), chemical additives are also frequently used. These chemicals can serve many functions in hydraulic fracturing, including limiting the growth of bacteria and preventing corrosion of the well casing. The exact formulation of the chemicals used varies depending on the rock formations, the well, and the requirements of the operator.
Hydraulic fracturing is a common and accepted practice, and has been, in oil and gas production for decades. The BLM estimates that about 90 percent (approximately 3,400 wells per year) of wells drilled on Federal and Indian lands are stimulated using hydraulic fracturing techniques. Although many of these are conventional wells, much of the new activity occurs on wells designed to produce shale oil and gas or to employ horizontal drilling techniques. Over the past 10 years, there have been significant technological advances in horizontal drilling, which is frequently combined with hydraulic fracturing. This combination, together with the discovery that these techniques can release significant quantities of oil and gas from large shale deposits, has led to production from geologic formations in parts of the country that previously did not produce significant amounts of oil or gas. The resulting expansion of oil and gas drilling into new parts of the country because of the availability of new horizontal drilling technologies has significantly increased public awareness of hydraulic fracturing and the potential impacts that it may have on water quality and water consumption, unless adequately regulated and safely implemented.
The BLM's existing hydraulic fracturing regulations are found at 43 CFR 3162.3-2. These regulations were established in 1982 and last revised in 1988, long before the latest hydraulic fracturing technologies became widely used. In response to public interest in hydraulic fracturing and in the BLM's regulation of hydraulic fracturing, in particular, the Department of the Interior (Department) held a forum on hydraulic fracturing on November 30, 2010, in Washington, DC, attended by the Secretary of the Interior and more than 130 interested parties. The BLM later hosted public forums (in Bismarck, North Dakota on April 20, 2011; Little Rock, Arkansas on April 22, 2011; and Golden, Colorado on April 25, 2011) to collect broad input on the issues surrounding hydraulic fracturing. More than 600 members of the public attended the April 2011 forums. Some of the comments frequently heard during these forums included concerns about water quality, water consumption, and a desire for improved environmental safeguards for surface operations. Commenters also strongly encouraged the agency to require public disclosure of the chemicals used in hydraulic fracturing operations on Federal and Indian lands. Commenters from the oil and gas industry suggested changes that would make the implementation of the rule more practicable, from their perspective, and some opposed adoption of any such rules affecting hydraulic fracturing on the Federal mineral estate. Further, the BLM distributed copies of the then-draft rule to affected federally recognized tribes in January 2012 and invited comments from affected tribes.
Around the time of the BLM's forums, at the direction of President Barack Obama, the Secretary of Energy convened a Shale Gas Production Subcommittee (Subcommittee) of the Secretary of Energy Advisory Board to evaluate hydraulic fracturing issues. The Subcommittee met with industry, service providers, state and Federal regulators, academics, environmental groups, and many other stakeholders. On August 18, 2011, the Subcommittee issued initial recommendations in its “90-day Interim Report.” The Subcommittee issued its final report, entitled “Shale Gas Production Subcommittee Second Ninety Day Report” on November 18, 2011. The Subcommittee recommended, among other things, that more information be provided to the public about hydraulic fracturing operations whether or not they occur on the Federal mineral estate, including disclosure of the chemicals used in fracturing fluids. The Subcommittee also recommended the adoption of stricter standards for wellbore construction and testing. The final report also recommended that operators engaging in hydraulic fracturing undertake pressure testing to ensure the integrity of all casings. These reports are available to the public from the Department of Energy's Web site at http://www.shalegas.energy.gov.
On May 11, 2012, the BLM published in the Federal Register the initial proposed rule entitled “Oil and Gas; Well Stimulation, Including Hydraulic Fracturing, on Federal and Indian Lands” (77 FR 27691). The comment period on the initial proposed rule closed on July 10, 2012. At the request of public commenters, on June 26, 2012, the BLM published in the Federal Register a notice extending the comment period for 60 days (77 FR 38024). The extended comment period closed on September 10, 2012.The BLM received over 177,000 comments on the initial proposed rule from individuals, Federal and state governments and agencies, interest groups, and industry representatives. After reviewing the comments on the proposed rule, the BLM now proposes to revise the initial proposed rule. As did the initial proposed rule, this revised proposed rule would apply to all wells administered by the BLM, including those of Federal, tribal, and individual Indian trust lands. Substantive comments on the initial proposed rule that informed the BLM's decisions on the revised proposed rule are discussed in the section-by-section discussion of this preamble. In the final rule, the BLM will provide a complete discussion of the comments submitted on the initial proposed rule (although some are discussed in this preamble) and those received as a result of this revised proposed rule.
The BLM's revised proposed rule is generally consistent with the American Petroleum Institute's (API) guidelines for well construction and well integrity. See API Guidance Document HF 1, Hydraulic Fracturing Operations—Well Construction and Integrity Guidelines, First Edition, October 2009. HF1 discusses the importance of maintaining wellbore integrity with casing and a cementing program. It recommends pressure tests after cementing casing strings, and describes some circumstances where CBLs are used to verify adequate cementing. The API also has published guidelines for water management that support the use of lined pits for water management. See API Guidance Document HF 2—Water Management Associated with Hydraulic Fracturing, First Edition, 2010.
Based on the input provided from a broad array of sources, including the individuals who spoke at the BLM's public forums and the recommendations of the Subcommittee, BLM proposed critical improvements to its regulations for hydraulic fracturing on May 11, 2012. Careful consideration of the comments received on the proposed rule, however, showed that further improvements and clarifications were appropriate. As did the initial proposed rule, this revised proposed rule would apply to all wells administered by the BLM, including those on Federal, tribal, and individual Indian trust lands.
Tribal consultation is a critical part of this rulemaking effort, and the Department is committed to making sure tribal leaders play a significant role as BLM and the tribes work together to develop resources on public and Indian lands in a safe and responsible way. During the proposed rule stage, the BLM initiated government-to-government consultation with tribes on the proposed rule and offered to hold follow-up consultation meetings with any tribe that desires to have an individual meeting. In January 2012, the BLM held four regional tribal consultation meetings, to which over 175 tribal entities were invited. To build upon established local relationships, the individual follow-up consultation meetings involved the local BLM authorized officers and management, including State Directors. After the issuance of the proposed rule, tribal governments, tribal members, and individual Native Americans were also invited to comment directly on the proposed rule.
In June 2012, the BLM held additional regional consultation meetings in Salt Lake City, Utah; Farmington, New Mexico; Tulsa, Oklahoma; and Billings, Montana. Eighty-one tribal members representing 27 tribes attended the meetings. In these sessions, the BLM and tribal representatives engaged in substantive discussions of the proposed hydraulic fracturing rule. A variety of issues were discussed, including but not limited to the applicability of tribal laws, validating water sources, inspection and enforcement, wellbore integrity, and water management, among others. Additional individual consultations with tribal representatives have taken place since that time. Also consultation meetings were held at the National Congress of American Indian Conference in Lincoln, Nebraska, on June 18, 2012, and at New Town, North Dakota on July 13, 2012.
Responses from tribal representatives informed the agency's actions in defining the scope of acceptable hydraulic fracturing operations. One of the outcomes of these meetings is the requirement in this rule that operators certify that operations on Indian lands comply with tribal laws.
The revised proposed rule also seeks to create less of an administrative burden than the initial proposed rule while providing the same benefits. This change was made in response to both tribal and industry comments.
The BLM has been and will continue to be proactive about tribal consultation under the Department's newly formalized Tribal Consultation Policy, which emphasizes trust, respect and shared responsibility in providing tribal governments an expanded role in informing Federal policy that impacts Indian lands. Consultation will continue during the comment period of this revised proposed rule. Tribal governments, tribal members, and individual Native Americans were also invited to comment directly on the proposed rule, as they are invited to comment on the revised proposed rule.
Several tribal representatives and tribal organizations have commented that the hydraulic fracturing rule should not apply on Indian land, or that tribes should be allowed to decide not to have the rule apply on their land (that is, “opt out” of the rule). The BLM fully embraces the statutes, Executive Orders, and other statements of governmental or departmental policy in favor of promoting tribal self-determination and control of resources. In addition, the Department remains bound by specific statutes in which Congress has delegated specific authority and duties to the Department regarding the management and regulation of resources. The IMLA provides in pertinent part as follows: “All operations under any oil, gas, or other mineral lease issued pursuant to the terms … of this title or any other Act affecting restricted Indian lands shall be subject to the rules and regulations promulgated by the Secretary of the Interior.” 25 U.S.C. 396d. The Department has consistently interpreted this statutory directive as allowing uniform regulations governing mineral resource development on Indian and Federal lands. Thus, an opt-out provision would not be consistent with the Department's procedures under IMLA, and the revised proposed rule does not provide such an option.
There has also been a suggestion that the Secretary should delegate her regulatory authority to the tribes if the tribe has regulations that meet or exceed the standards in the BLM regulation. The IMLA does not authorize the Secretary to delegate her regulatory responsibilities to the tribes, and therefore the revised proposed rule does not include a delegation provision. Nonetheless, there are opportunities for tribes to assert more control over oil and gas operations on tribal land by entering into Tribal Energy Resource Agreements under the Indian Energy Development and Self-Determination Act (part of the Energy Policy Act of 2005), and to pursue contracts under the Indian Self-Determination and Education Assistance Act of 1975.
Also, the proposed rule has been revised to defer to State (on Federal land) or tribal (on Indian land) designations of aquifers as either requiring protection from oil and gas operations, or as exempt from the requirement to isolate water-bearing zones in section 3162.3-3(b). Revised section 3162.3(k) provides that for lands within the jurisdiction of a State or a tribe that State or tribe could work with the BLM to craft a variance that would allow compliance with State or tribal requirements to be accepted as compliance with the rule, if the variance meets or exceeds this rule's standards. The BLM is also seeking comments on whether compliance with State or tribal requirements to disclose chemical constituents of hydraulic fracturing fluids should be deemed as compliance with the proposed rule if the State or tribal requirements meet or exceed the standard in the rule at section 3162.3-3(i).
As explained elsewhere in this preamble, the BLM intends to reach out to States and to tribes to review existing agreements, to strengthen those that could provide a greater role for States and tribes, and to reach new agreements where there have been none. The BLM will seek new and improved agreements to reduce regulatory burdens and to increase efficiency, while fulfilling the Secretary's responsibilities mandated by statutes as steward for the public lands and trustee for Indian lands.
The BLM invites the public's comments on whether there are other opportunities in the revised proposed rule to incorporate or to defer to State or tribal standards or requirements.
Although greater use of State or tribal standards or procedures could reduce compliance costs for operators and increase consistency, enforcement issues could arise. On Federal lands, the BLM enforces the Federal regulations and lease conditions, and the States enforce their regulations. On Indian lands, the BLM enforces the Federal regulations and the terms of the leases, and the tribes have the power to enforce their own law. Comments are requested on practical enforcement challenges that might arise if the BLM incorporates or defers to State or tribal laws or procedures, and on any proposed solutions.
Over the past few years, in response to strong public interest, several States—including Colorado, Wyoming, Arkansas, and Texas—have substantially revised their State regulations related to hydraulic fracturing. One of the BLM's key goals in updating its regulations on hydraulic fracturing is to complement State efforts by providing a consistent standard across all public and Indian lands nationwide. The BLM has revised the initial proposed rule to make reported information consistent and easily accessible to the public. For instance, the BLM is working closely with the Groundwater Protection Council and the Interstate Oil and Gas Compact Commission so that operators may report chemicals used in hydraulic fracturing operations to BLM through the existing FracFocus.org Web site, which is already well established and used by many States. This online database includes information from oil and gas wells in approximately 12 States and includes information from over 500 companies. The BLM understands that the database is in the process of being improved and will in the near future have enhanced search capabilities and allow for easier reporting of information. If operators are unable to use FracFocus or elect not to, they may elect to report chemicals used on Federal or Indian lands directly to the BLM. The BLM intends to report that information to the public through FracFocus.
The BLM recognizes the efforts of some States to regulate hydraulic fracturing and seeks to avoid duplicative regulatory requirements. However, it is important to recognize that a major impetus for a separate BLM rule is that States are not legally required to meet the stewardship standards applying to public lands and do not have trust responsibilities for Indian lands under Federal laws. Thus, the rule may expand on or set different standards from those of States that regulate hydraulic fracturing operations, but do not need to adhere to the same resource management and public involvement standards appropriate on Federal lands under Federal law. This revised proposed rule encourages efficiency in the collection of data and the reporting of information by proposing to allow operators in States that require disclosure on FracFocus to meet both the State and the BLM requirements through a single submission to FracFocus.
III. Discussion of the Revised Proposed Rule and Comments on the Proposed Rule Back to Top
As was discussed in the proposed rule, the BLM is revising its hydraulic fracturing regulations, found at 43 CFR 3162.3-2, and adding a new section 3162.3-3. Existing section 3162.3-3 would be retained and renumbered.
The Federal Land Policy and Management Act (FLPMA) directs the BLM to manage the public lands so as to prevent unnecessary or undue degradation, and to manage those lands using the principles of multiple use and sustained yield. FLPMA defines multiple use to mean, among other things, a combination of balanced and diverse resource uses that takes into account long-term needs of future generations for renewable and non-renewable resources. FLPMA also requires that the public lands be managed in a manner that will protect the quality of their resources, including ecological, environmental, and water resources. The Mineral Leasing Act and the Mineral Leasing Act for Acquired Lands authorize the Secretary to lease Federal oil and gas resources, and to regulate oil and gas operations on those leases, including surface-disturbing activities. The Act of March 3, 1909, the Indian Mineral Leasing Act and the Indian Mineral Development Act assigns regulatory authority to the Secretary over Indian oil and gas leases on trust lands (except those excluded by statute, i.e., the Crow Reservation in Montana, the ceded lands of the Shoshone Reservation in Wyoming, the Osage Reservation in Oklahoma, and the coal and asphalt lands of the Choctaw and Chickasaw Tribes in Oklahoma). As stewards of the public lands and minerals and as the Secretary's regulator for operations on oil and gas leases on Indian lands, the BLM has evaluated the increased use of hydraulic fracturing practices over the last decade and determined that the existing rules for hydraulic fracturing require updating. The Secretary delegated to the BLM his authority to oversee operations on Indian mineral leases through the Departmental Manual (235 DM 1.K) under the Indian Allotted Lands Leasing Act and the Tribal Lands Leasing Act. The Secretary also approved the authorities section of the regulations which give the BLM authority under additional Indian related statutes.
As discussed in the background section of this preamble, the increased use of well stimulation activities over the last decade has also generated concerns among the public about hydraulic fracturing and about the chemicals used in hydraulic fracturing. The proposed rule and this revised proposed rule are intended to increase transparency for the public regarding the fluids used in the hydraulic fracturing process, in addition to providing assurances that wellbore integrity is maintained throughout the fracturing process and that the fluids that flow back to the surface from hydraulic fracturing operations are properly stored, disposed of, or treated. The following chart explains the major changes between the proposed regulations and the regulations in this revised proposed rule.
|Initial proposed regulation||Revised proposed pegulation||Substantive changes|
|43 CFR 3160.0-5 Definitions||43 CFR 3160.0-5 Definitions||This revised proposed rule would revise the proposed term “stimulation fluid” to “hydraulic fracturing fluid” to be consistent with other changes to the rule. It also would delete the definition of “well stimulation” and add a definition of “hydraulic fracturing,” which excludes acidizing, enhanced secondary recovery and tertiary recovery. The terms used in other sections of this rule were also revised to make those sections consistent with the changes here. The rule would also include definitions of the terms “refracturing” and “type well.” “Refracturing” is defined as a hydraulic fracturing operation subsequent to an initial completion of an oil and gas well which used hydraulic fracturing previously. “Type well” is defined in this section to mean an oil and gas well that can be used as a model for other wells drilled by the same operator across the field. The revised proposed rule also clarifies the definition of “usable water” by specifying types of geologic zones that would be deemed to contain usable water, and other types that would be deemed not to contain usable water.|
|43 CFR 3162.3-2(a) Subsequent Well Operations||43 CFR 3162.3-2(a) Subsequent Well Operations||The revised proposed rule would replace the term “commingling” with the term “combining” to avoid confusion with the term “commingling” that is used in calculating royalties on production.|
|43 CFR 3162.3-3(a) Subsequent Well Operations; Well Stimulation||43 CFR 3162.3-3(a) Subsequent Well Operations; Hydraulic Fracturing||The revised proposed rule would change the scope of the regulation to apply only to hydraulic fracturing operations, and not to other “well stimulation” activities. It would clarify that the regulation also applies to refracturing operations.|
|(None)||43 CFR 3162.3-3(b) Isolation of Usable Water to Prevent Contamination||This new paragraph would require that all fracturing and refracturing operations meet the performance standard in section 3162.5-2(d), which requires that operators must isolate all usable water and other mineral-bearing formations and protect them from contamination.|
|43 CFR 3162.3-3(c) What the Notice of Intent Sundry Must Include||43 CFR 3162.3-3(d) What the Notice of Intent Sundry Must Include||The revised proposed rule would add a new provision that allows the Notice of Intent (NOI) Sundry to be submitted for a single well or a group of wells with the same geological characteristics. If it is for a group of wells, the information should be for a “type well.”|
|43 CFR 3162.3-3(c)(2)||43 CFR 3162.3-3(d)(2)||The revised proposed rule would delete the requirement to submit a CBL for approval prior to commencing fracturing operations. Section 3162.3-3(i)(8), would require that a CEL be submitted after fracturing operations, unless there are problems with the cement job. The revised proposed rule would also add a requirement that the depths of usable water aquifers be based on a drill log of the subject well or of another well in the field.|
|43 CFR 3162.3-3(c)(4)||Deleted||The revised proposed rule would delete the requirement that the operator submit a pre-hydraulic fracturing certification that it will comply with all applicable permitting and notice requirements.|
|43 CFR 3162.3-3(c)(3)||43 CFR 3162.3-3(d)(3)||The revised proposed rule would add to the list of the source and location of water supply “reused or recycled water.”|
|43 CFR 3162.3-3(c)(5)||43 CFR 3162.3-3(d)(4)||The revised proposed rule would add to the requirements for a hydraulic fracturing design that the operator must include the estimated fracture direction and propagation plotted on the well schematics and on a topographical map of the same scale as the map used in the APD. It would also add a requirement to supply the estimated vertical distance to the nearest usable water aquifer above the fracture zone.|
|43 CFR 3162.3-3(c)(6)||43 CFR 3162.3-3(d)(5)||The revised proposed rule would remove “chemical composition” from the information that is required to be submitted regarding the handling of recovered fluids.|
|43 CFR 3162.3(d) Mechanical Integrity Testing Prior to Well Stimulation||43 CFR 3162.3-3(f) Mechanical Integrity Testing Prior to Hydraulic Fracturing||The revised proposed rule would add clarification that a mechanical integrity test (MIT) would be required for a re-fracturing operation.|
|(None)||43 CFR 3162.3-3(e)(1) Monitoring of Cementing Operations and Cement Evaluation Log Prior to Hydraulic Fracturing||The revised proposed rule would add a new paragraph requiring that during cementing operations the operator must monitor and record the flow rate, density, and treating pressure, and then submit the monitoring report to the BLM within 30 days of completion of the hydraulic fracturing.|
|43 CFR 3162.3-3(c)(2)||43 CFR 3162.3-3(e)(2)||The revised proposed rule would add a new paragraph stating a general rule that an operator must run a CEL on each casing that protects usable water. A CEL may be ultrasonic logs, variable density logs, micro-seismograms, standard CBLs, CBLs with directional receiver array, ultrasonic pulse echo technique, an isolation scanner or other tool of equal effectiveness.|
|(None)||43 CFR 3162.3-3(e)(3)||The revised proposed rule would add a new paragraph that provides an exception to the CEL requirement where an operator's “type well” has been shown to have successful cement bonding and subsequent wells have the same specifications and geologic parameters as the “type well,” and the cementing operations monitoring data parallels those of the type well.|
|(None)||43 CFR 3162.3-3(e)(4)||The revised proposed rule would add a new paragraph that if there is any indication of inadequate cementing, the operator must report it to the BLM within 24 hours, with written confirmation within 48 hours. The operator would be required to run a CEL showing that it has corrected the cementing job, and that usable water has been isolated to protect it from contamination. At least 72 hours prior to starting fracturing operations, the operator must submit to the BLM a certification indicating that it corrected the inadequate cement job and documentation showing that there is adequate cement bonding.|
|(None)||43 CFR 3162.3-3(e)(5)||The revised proposed rule would add a new provision stating that the operator must submit the information required by (e)(1) and (2) to the BLM in a Subsequent Report Sundry Notice.|
|43 CFR 3162.3-3(e)(1)||43 CFR 3162.3-3(g)(1)||This paragraph would be revised to apply to refracturing operations as well as fracturing operations. It also would be revised to make it clear that that the pressure in the annulus between any intermediate casings and the production casing must be continuously monitored and recorded.|
|43 CFR 3162.3-3(e)(2) Monitoring and Recording During Well Stimulation||43 CFR 3162.3-3(g)(2) Monitoring and Recording During Hydraulic Fracturing||This paragraph would be revised to apply to refracturing operations as well as fracturing operations. For any incident of the annulus pressure increasing by more than 500 psi, the revised proposed rule would change the due date for a Subsequent Report Sundry Notice from 15 days after the occurrence to 30 days after completion of fracturing operations.|
|43 CFR 3162.3-3(g) Information that Must be Provided to the Authorized Officer After Completed Operations||43 CFR 3162.3-3(i) Information that Must be Provided to the Authorized Officer After Completed Operations||Changes to this section would add a clarification that the information is required for each well fractured or refractured, even if the BLM approved a Notice of Intent Sundry for a group of wells. The new provision would allow reporting of chemical information to the BLM either directly or through FracFocus or other database that the BLM specifies. The revised proposed rule would add a new provision that the operator submitting chemical information through FracFocus must specify that the information is for a Federal or Indian well, certify that the information is correct, and certify that the operator complied with applicable laws governing notice and permits. The revised proposed rule would also add a new provision clarifying that the operator is responsible for information submitted by its hydraulic fracturing contractor.|
|43 CFR 3162.3-3(g)(1)||43 CFR 3162.3-3(i)(2)||This revised section would delete the requirement that the operator report the actual access route and transportation method for all water used in stimulating the well, since this information is provided before the operation is approved.|
|43 CFR 3162.3-3(g)(2), (4) and (5)||43 CFR 3162.3-3(i)(1)||The proposed regulation required two separate reports or tables (one for all additives of the actual stimulation fluid by trade name and purpose, and another for the complete chemical makeup (including the Chemical Abstracts Service Registry Number [CAS number]) of all materials used in the actual stimulation fluid). The revised proposed rule would require the information required in the FracFocus form: True vertical depth of the well, total water volume used, and for each chemical used (including the base fluid) the trade name, supplier, purpose, ingredients, CAS number, maximum ingredient concentration in the additive, and maximum ingredient concentration in the fracturing fluid.|
|43 CFR 3162.3-3(g)(6)||43 CFR 3162.3-3(i)(4)||A new requirement would be added by this rule to report the actual, estimated, or calculated direction of the fractures.|
|43 CFR 3162.3-3(g)(7)||Deleted||This revised proposed rule would delete the provision that would have expressly allowed the Subsequent Report Sundry Notice to be completed in part by attaching the hydraulic fracturing contractor's job log so long as the required information was included and readily apparent.|
|43 CFR 3162.3-3(g)(8) and (9)||43 CFR 3162.3-3(i)(7)||The revised proposed rule would revise the requirement for certification of wellbore integrity to include the monitoring of cementing operations and the CEL. It would also clarify that the certification of compliance with applicable law is different for Indian lands than for Federal lands.|
|(None)||43 CFR 3162.3-3(i)(8)||This rule would add a new paragraph requiring operators to submit the actual cement operations monitoring report, any CEL, and the MIT results.|
|(None)||43 CFR 3162.3-3(i)(9)||This rule would add a new paragraph allowing the BLM to require the operator to provide further information about any representation submitted under paragraph (i).|
|43 CFR 3162.3-3(h) and (i)||43 CFR 3162.3-3(j)(1) through (4)||In this revised proposed rule these sections have been significantly revised. The regulations would no longer require operators to submit all information about chemicals to the BLM, to segregate trade secrets, and to justify the assertion of trade secret protection. Instead, the regulations would instruct operators not to disclose trade secret information to the BLM or on FracFocus. Operators would submit an affidavit stating that the withheld information is entitled to withholding from the public under Federal statute or regulation. The BLM would retain authority to require operators to submit the claimed trade secret information.|
|(None)||43 CFR 3162.3-3(j)(4)||This rule would add a new paragraph requiring operators to keep the information claimed to be trade secrets for 6 years, by reference to existing 43 CFR 3162.4-1, which applies to all lease operations.|
|* * *||43 CFR 3162.3-3(k)||This rule would add a new provision allowing States and tribes to work with the BLM to create variances applicable to all lands within a field, a basin, a State, or Indian lands. Such a variance would have to meet or exceed the effectiveness of the rule provision it replaces.|
Section-by-Section Discussion of the Revised Proposed Rule and Discussion of Comments
Comments Addressed in This Revised Proposed Rule
In this revised proposed rule, the BLM discusses many of the comments received on the proposed rule. The BLM will fully discuss comments on the initial proposed and revised proposed rules in the eventual announcement of the final rule. Commenters provided detailed and helpful information. The BLM desires to demonstrate how public comment assisted in framing the issues and to ultimately produce this revised proposed rule. The Department does not address every comment in this revised rule, because the changes in this revised proposed rule have mooted some comments on the initial proposed rule. Other comments were not central to the re-evaluation the BLM has undertaken, and thus discussion of those few comments would not contribute to the public's understanding of the reasons the BLM is publishing the revised proposed rule.
Additionally, not every change in the revised proposed rule responds to a specific comment. Some revisions clarify the proposed rule, and still other revisions allow this revised rule to be more effective with reduced costs and delays to operators and to the BLM.
This revised proposed rule identifies some issues on which the BLM specifically seeks comments. The public, however, may submit comments on any provision of the revised proposed rule. All comments received in response to the initial proposed rule will be in the record of any final rule; accordingly, the public does not need to resubmit comments to the initial proposed rule in response to this revised proposed rule.
General Comments on the Initial Proposed Rule
The BLM received comments both supporting and questioning the need for a rule regulating hydraulic fracturing. Supporters stated, among other things, that the rule protects groundwater and ensures that operators properly handle flowback water. In general, the opposition stated that BLM regulation of hydraulic fracturing is unnecessary and argued that no scientific basis exists that hydraulic fracturing causes groundwater contamination and that it is a low-risk operation. The opposition further argued that States should regulate hydraulic fracturing and that many States already have current rules. The BLM acknowledges that many States do have regulations in place; however, not all of the States that contain Federal lands under the BLM's jurisdiction have hydraulic fracturing regulations. Further, FLPMA and other Federal law provide for public involvement that is not always required in State law. In addition, the BLM has responsibilities for Indian resources and State regulations do not apply to Indian lands. Furthermore, States do not uniformly require measures that would uphold the BLM's responsibilities for federally managed public resources, to protect the environment and human health and safety on Federal and Indian lands, and to prevent unnecessary or undue degradation of the public lands. By taking additional steps to ensure wellbore integrity and to control the handling of flowback water, potential impacts of hydraulic fracturing can be mitigated.
Some commenters questioned whether the BLM's proposed regulations are premature, because the Environmental Protection Agency (EPA) is currently conducting a multi-year study on the potential impact of hydraulic fracturing on drinking water resources, with a final report due in 2014. The BLM is aware of the ongoing EPA study relating to the impacts of hydraulic fracturing. While the EPA study may offer additional information regarding the potential impacts of hydraulic fracturing, nothing in the revised proposed regulations would contradict or conflict with the EPA study, which does not focus on the management of public lands and resources subject to Federal public lands law. Notwithstanding the findings that will be included in the EPA's anticipated study, this revised regulation prevents undue or unnecessary degradation of public lands and furthers the Secretary's trust responsibilities on Indian lands.
Some commenters disputed the authority of the BLM to regulate well construction and regulate water supplies used for, or potentially impacted by, hydraulic fracturing. Other commenters asserted that the proposed rule infringes upon State and tribal water rights authority. FLPMA directs the BLM to manage the public lands so as to prevent unnecessary or undue degradation. FLPMA also requires that the public lands be managed in a manner that will protect the quality of resources, i.e. ecological, environmental, and water resources. Regulating wellbore construction meets these mandates. The Indian lands leasing statutes direct the Secretary to regulate oil and gas operations on Indian lands. The Secretary has delegated his authority for regulating downhole activities on Indian mineral leases to the BLM. The BLM has historically regulated the construction of wellbores through approvals of APDs (applying the Onshore Oil and Gas Order Numbers 1 and 2). This rule would supplement existing regulations regarding wellbore construction (Onshore Oil and Gas Order Number 2, Drilling (53 FR 46790)).
The revised proposed regulations at sections 3162.3-3(d)(3) and 3162.3-3(i)(2) would require submission of information on water sources to assist the BLM in assessing the environmental effects of individual drilling operations. The National Environmental Policy Act and the implementing regulations by the Council on Environmental Quality require that Federal agencies assess the environmental impacts of their proposed actions and inform their decision-making. The information on water sources will be part of an environmental assessment regarding how water is being supplied for the hydraulic fracturing operation. The BLM does not intend to regulate water use, but instead to acquire information on the water used incidental to oil and gas operations on Federal and Indian lands. Acquisition of this information is similar to requirements in Onshore Oil and Gas Order No. 1, Approval of Operations (72 FR 10308) for drilling a well. Onshore Order No. 1 requires the operator to identify the source, access route, and transportation method for all water anticipated for use in drilling the proposed well. Based on information received at this time, the requirement in Onshore Order No. 1 has not caused conflicts with State or tribal water rights authorities. Likewise, based on BLM's previous experience with the information requirements of its existing onshore orders, BLM does not anticipate that the requirements proposed here will cause any conflicts. The revised proposed regulation does not regulate Indian, State, and private water rights. Accordingly, the Department made no revisions to the initial proposed rule as a result of these comments.
The BLM received some comments stating that the rule should clarify the jurisdiction or scope of this rule. The revised proposed rule falls under 43 CFR part 3160. The jurisdiction (scope) of all sections under part 3160, which would include this revised proposed rule, is defined in existing regulations at 43 CFR 3161(a), which states: “[a]ll operations conducted on a Federal or Indian oil and gas lease by the operator are subject to the regulations in this part.” Therefore, this revised proposed rule would not apply to hydraulic fracturing operations on private or State leases, even leases included in a Federal or Indian agreement. The BLM's only jurisdiction on private and State leases is for site security, measurement, and reporting of production when the private or State lease is committed to a Federal or Indian agreement. Existing regulations already define the jurisdiction or scope of the revised proposed rule, so the Department made no revisions to the initial proposed rule as a result of these comments.
Some commenters requested that the BLM coordinate permitting and reporting with States to avoid duplication. Some commenters faulted the BLM for undermining the efforts of State oil and gas commissions to regulate hydraulic fracturing. The BLM has revised the initial proposed rule to avoid duplication with State requirements. Nonetheless, the BLM needs to have accurate information about the construction and completion of oil and gas wells on Federal and Indian land. The BLM acknowledges the efforts necessary to comply with State or tribal and BLM regulations, but modern information technology significantly reduces the time and expense of reporting the same information to both a State or tribal agency and to the BLM. Federal law is clear that the Federal Government has extensive authority over Federal lands and Indian lands, and that State governments may exercise certain powers on non-Indian lands, except in instances where Federal law preempts State law. The notice, approval, testing, operational, and reporting requirements of the revised proposed regulation would in no way undermine the efforts of State agencies to regulate hydraulic fracturing. The BLM recognizes the advantages to building upon existing relationships established with the different States and tribes as a prudent approach to maintaining efficiency and flexibility while reducing duplication. It makes sense for both the BLM and the States or tribes with oil and gas activity to explore ways to coordinate implementation of this revised proposed rule. For States or tribes that maintain hydraulic fracturing rules that meet or exceed the standards that would be imposed by this revised proposed rule, the BLM will pursue amending or updating the existing agreement with each State or tribe to reflect the expectation and responsibilities for each agency. An example of an existing agreement is the State of Colorado which has a Memorandum of Agreement with the BLM (and the United States Forest Service) for Permitting and Oil and Gas Operations on BLM and National Forest Service Lands in Colorado.
The BLM is committed to working with tribes to coordinate implementation of this revised proposed rule with the tribes' laws, rules, and permitting and inspection programs. The contents of such agreements or understandings might be different for each tribe, but such agreements actively seeking opportunities to share standards, information, and processes should yield more consistency for operators and better efficiency for the BLM and tribal agencies.
Some commenters said that the proposed rule is inconsistent with existing laws or regulations such as the Energy Policy Act of 2005 and EPA's New Source Performance Standards. For instance, some commenters believed that the proposed permitting requirements would cause delays in permitting that would violate the timeframes mandated by the Energy Policy Act. The BLM disagrees with these comments. Changes from the initial proposal in this revised proposed rule would reduce possible permitting delays and BLM projected workload. The BLM would meet the requirements of the Energy Policy Act by informing the operator what steps remain to be completed and the schedule for completion of these requirements for processing of their drilling permits. Often delays occur from submittal of incomplete information or surveys as part of the drilling permit proposal, or due to turnover in industry permitting specialists. The BLM has increased the number of drilling permits approved over the past 3 years, and does not believe such productivity gains will be negatively impacted by this revised proposed rule. The BLM received some comments that certain definitions and requirements in the proposed rule were vague. The commenters stated that without clarification, this purported vagueness could lead to misinterpretation by operators and inconsistent application by BLM engineers and inspectors. Because the revised proposed rule uses different approaches to regulation than the initial proposed rule, some definitions have been revised. The BLM worked to ensure the revisions also increased clarity. The BLM believes that the definitions are sufficiently clear to the industry, the BLM, and the public. To the extent that some definitions might be construed as open-ended, it is because the rule must allow for some degree of flexibility to accommodate the wide range of geologic and environmental conditions encountered on Federal and Indian leases.
Some commenters stated that the BLM does not have the staffing, budget, or the number of experts needed to implement the rule, which will cause delays in approvals. The BLM does not agree with the assertion regarding the lack of BLM staff expertise. Also the revisions proposed in this revised proposed rule would reduce the amount of staff time required to implement the rule and limit any permitting delays. The changes include the option of including multiple wells with substantially similar geology in the permit application (type wells), narrowing the scope of the rule to include only hydraulic fracturing, and the elimination of the proposed requirement for the BLM to review and approve CBLs prior to hydraulic fracturing. These changes are discussed further in other sections of this rule.
Some BLM offices, especially those that process a large volume of drilling applications, may experience delays in implementing the revised proposed rule. The BLM is mindful of this issue and already provides remote assistance from other offices. As with the implementation of any new rule, some delays may be inevitable. This rule, however, will help prevent unnecessary or undue degradation of public lands and to provide protection to Indian trust resources.
Some commenters recommended that the BLM, State, or tribes should inspect all hydraulic fracturing operations on Federal and Indian land. The BLM did not revise the rule as a result of these comments. As part of the BLM's annual inspection strategy, the BLM inspects all workover operations, including hydraulic fracturing, on Federal and Indian lands that are rated as a high priority. This rating depends on measuring many factors, including the type of operation, the location, and the potential impacts of the operation.
The BLM received some comments objecting to the application of the rule to “well stimulation” operations which, as defined in the May 2012, proposed rule, includes any operation designed to increase the permeability of the reservoir rock. The definition specifically included acidization, but could also be interpreted to mean other operations such as thermal stimulation and maintenance fracturing, designed to open up fractures near the wellbore. Some of the commenters stated that the requirements in the proposed rule were too onerous for what they considered to be routine maintenance operations. The commenters requested that the rule apply only to hydraulic fracturing operations.
The BLM agrees with these comments and made several revisions to the revised proposed rule as a result. Section 3162.3-3(a) has been revised to apply only to hydraulic fracturing and refracturing, rather than to well stimulation as stated in the proposed rule.
In addition, definitions of “hydraulic fracturing” and “refracturing” have been added to the revised proposed rule (section 3160.0-5) instead of the previous definition of well stimulation. In this revised proposed rule, the term “hydraulic fracturing” specifically excludes enhanced secondary recovery, such as water flooding, tertiary recovery, recovery through steam injection, and other types of well stimulation such as acidizing.
Some commenters requested clarification of the requirements for operators who conduct hydraulic fracturing operations on or near land managed by other Federal agencies such as the National Park Service (NPS) and the United States Forest Service (USFS). One commenter wanted to ensure that a comprehensive NEPA document was prepared and that the BLM include the NPS as a cooperating agency when hydraulic fracturing operations are near National Parks. Another commenter wanted the rule to specify that it applied to USFS managed land. When warranted, the BLM invites other agencies, including the USFS and the NPS, to participate in the preparation of the NEPA analysis.
The involvement of other agencies reflects the site-specific issues and potential impacts to resources. On USFS lands, the USFS typically has the lead responsibility for compliance with NEPA as part of its review of the surface use plan of operation, and the BLM serves as a cooperating or joint lead agency. The revised proposed rule, as with all of the other regulations in 43 CFR part 3160 (see 43 CFR 3161.1—Jurisdiction), would apply to USFS lands. No revisions were made to the rule as a result of these comments.
The BLM received some comments requesting that the rule include a ban on the use of diesel fuel in hydraulic fracturing operations. Jurisdiction over the use of diesel fuel in hydraulic fracturing operations lies with the EPA through its administration of the Underground Injection Control (UIC) program. (SDWA, Section 1421(d)(1)(B), 42 U.S.C. 300h(d)(1)(B)(ii,40 CFR 144.11). Owners or operators who inject diesel fuels during hydraulic fracturing related to oil and gas operations must obtain a UIC permit before injection begins. The EPA published draft permitting guidance for oil and gas hydraulic fracturing operations using diesel fuels in May 2012. Thus the BLM did not revise the rule as a result of these comments.
The BLM received some comments that certain provisions of the proposed rule were open ended, which would give BLM too much discretion and would result in uncertainty, delays, and increased costs for operators. For example, some comments suggested that the ability of the BLM to request additional information in the Sundry Notice requesting approval for hydraulic fracturing (section 3162.3-3(d)(7)) was open ended. The BLM believes that the provisions in the revised proposed rule are necessary to provide the flexibility essential to regulating operations over a broad range of geologic and environmental conditions. Requests for information from the Authorized Officer are administratively appealable if an operator believes the directive lacks a proper basis. The BLM did not revise the rule as a result of these comments.
The BLM received some comments suggesting that all wells permitted prior to the effective date of the rule should be exempt from the provisions of the rule, that the rule be phased in over a period of 180 days, and that older wells should be reviewed for information only. The BLM understands the commenters' concerns. Nonetheless, the primary goal of this rule is to ensure that hydraulic fracturing does not cause negative impacts to Federal or Indian resources, including groundwater and surface water. This is achieved by ensuring wellbore integrity is maintained throughout the hydraulic fracturing process and placing restrictions on the handling of flowback water. Achieving these goals is critical regardless of when the BLM approved the APD or if the proposed operation will take place immediately after the effective date of the rule or 180 days after the effective date of this rule. The BLM did not revise the rule as a result of these comments.
As an administrative matter, this rule would amend the authorities section for the BLM's oil and gas operations regulations at 43 CFR 3160.0-3 to include FLPMA. Section 310 of FLPMA authorizes the Secretary of the Interior to promulgate regulations to carry out the purposes of FLPMA and other laws applicable to the public lands. See 43 U.S.C. 1740. This amendment would not be a major change and would have no effect on lessees, operators, or the public.
This rule would remove the terms “nonroutine fracturing jobs,” and “routine fracturing jobs,” from 43 CFR 3162.3-2(a) and 43 CFR 3162.3-2(b). It would add a new section, 43 CFR 3162.3-3, for hydraulic fracturing operations. In this rule, there would be no distinction drawn between “nonroutine” or “routine” hydraulic fracturing operations. Prior approval would be required for hydraulic fracturing operations, but would be available concurrently with the prior approval process that is already in place for general well drilling activities through the APD process. The running of CELs on surface or intermediate casing strings, which is currently an optional practice, would be required for new wells where the casing protects usable water, except for wells substantially similar to an operator's “type well” for which the operator has demonstrated the efficacy of the cement bonding of casing under similar geological conditions within the same field. All wells would require mechanical integrity testing prior to hydraulic fracturing.
The revised proposed rule includes eight new definitions for technical terms used in the rule. These definitions will improve readability and clarity of the regulations.
Published in this rule are the following definitions:
- Annulus means the space around a pipe in a wellbore, the outer wall of which may be the wall of either the borehole or the casing; sometimes also called the annular space.
- Bradenhead means a heavy, flanged steel fitting connected to the first string of casing that allows suspension of intermediate and production strings of casing, and supplies the means for the annulus to be sealed off.
- Hydraulic fracturing means those operations conducted in an individual wellbore designed to increase the flow of hydrocarbons from the rock formation to the wellbore through modifying the permeability of reservoir rock by breaking it. Hydraulic fracturing does not include enhanced secondary recovery such as water flooding, tertiary recovery, recovery through steam injection, or other types of well stimulation operations such as acidizing. The BLM changed the proposed rule's term “stimulation fluid” to “hydraulic fracturing fluid” throughout these regulations.
- Hydraulic fracturing fluid means the liquid or gas, and any associated solids used in hydraulic fracturing, including constituents such as water, chemicals, and proppants.
- Proppant means a granular substance (most commonly sand, sintered bauxite, or ceramic) that is carried in suspension by the fracturing fluid and that serves to keep the cracks open when fracturing fluid is withdrawn after a hydraulic fracture treatment.
- Refracturing means a hydraulic fracturing operation subsequent to the completion of a prior hydraulic fracturing operation in the same well. For purposes of this definition, a hydraulic fracturing operation is completed when a well begins producing oil or gas, or when equipment necessary to inject the hydraulic fracturing fluid at sufficient pressure to fracture the stratum is removed from the well pad, whichever occurs earlier.
- Type well means an oil and gas well that can be used as a model for well completion in a field where geologic characteristics are substantially similar within the same field, and where operations such as drilling, cementing, and completions using hydraulic fracturing are likely to be successfully replicated using the same design.
Usable water means generally those waters containing up to 10,000 ppm of total dissolved solids.
The proposed rule used the term “well stimulation” to describe the activities being regulated by this rule. In this revised proposed rule, that term is replaced with the term “hydraulic fracturing.” The reason for the change is because, after reviewing all of the comments and considering the available information, the BLM has determined that only hydraulic fracturing operations require the additional measures in this rulemaking. This definition also has language that explains the types of secondary recovery activities to which this rule does not apply.
This rule also includes the following three terms that were not in the proposal: Hydraulic fracturing fluid; refracturing; and type well. These terms are defined so that there is a common understanding of the regulatory provisions that follow.
This rule would delete the definition of “fresh water,” and is consistent with how the BLM has been protecting all usable waters in its onshore orders. Usable water includes fresh water (often defined as water containing less than 5,000 parts per million (ppm) of total dissolved solids (TDS)) and water that is of lower quality than fresh water. The BLM has been more protective when it seeks to protect all usable water during drilling operations, not just fresh water. This policy was established upon the effective date of Onshore Order No. 2, December 19, 1988. Water with up to 10,000 ppm TDS may be used for some agricultural or industrial purposes, often with some treatment, and thus would continue to be protected under this revised proposed rule. Not all waters of up to 10,000 ppm TDS need to be isolated or protected from hydraulic fracturing operations; clarifying edits have been added to help the public understand how the rule will affect operations.
The rule would revise section 3162.3-2(a) by removing the phrase “perform nonroutine fracturing jobs” from the current 43 CFR 3162.3-2(a). The phrase “routine fracturing jobs, or” would also be removed from existing section 3162.3-2(b). This rule does not affect requirements for acidizing jobs, and this rule would not remove the reference to acidizing jobs from section 3162.3-2(b). Hydraulic fracturing operations are addressed under section 3162.3-3.
In paragraph (a) of this section, the term “commingling” in the initial proposed rule would be replaced with the term “combining” to clarify the intent of this requirement and to avoid confusion with the meaning of “commingling” as that term is used in a production accounting context and in sections 3162.7-2 and 3162.7-3 of this title. The term “commingling” in a production accounting context refers only to the combining of production from different leases, communitized areas (CA), participating areas (PA), or State or private mineral estates prior to royalty measurement. Commingling, whether it is downhole commingling or surface commingling, requires BLM approval to ensure that the allocation method is consistent with Onshore Oil and Gas Order Number 3, Site Security (54 FR 8056), Onshore Oil and Gas Order Number 4, Measurement of Oil (54 FR 8086), and Onshore Oil and Gas Order Number 5, Measurement of Gas (54 FR 8100), for royalty measurement purposes. The combining of production from different intervals or zones within a wellbore also requires BLM approval to ensure that the zones proposed for combining are compatible from a reservoir standpoint, regardless of the royalty implications. The intent of the requirement in this section would be to address reservoir concerns from combining zones or intervals; therefore, the word “commingling” was changed to “combining.” The royalty implications of commingling production from different leases, CAs, PAs, or State and private properties are handled under a separate approval process in 43 CFR 3162.7-2 and 3162.7-3.
Refracturing operations within 5 years from the approval of a Notice of Intent Sundry would be considered a “recompletion” under section 3162.3-2(b). The subsequent report on those operations would require the information and certifications prescribed in section 3162.3-3(i) of this rule. Under section 3162.3-3(c)(3)(i), a refracturing operation more than 5 years after the approval of the Notice of Intent Sundry would require BLM's approval of a new Notice of Intent Sundry.
The revised proposed rule would change the scope of the regulation to apply only to hydraulic fracturing operations and not to other well stimulation activities. Section 3162.3-3(a) would make it clear that this section applies only to hydraulic fracturing operations and that all other injection activities must comply with section 3162.3-2. This language is necessary to make the distinction between hydraulic fracturing and other well injection activities, such as secondary and tertiary recovery operations. Secondary and tertiary recovery operations do not involve the injection of chemicals at pressures high enough to fracture strata, and thus do not raise the same concerns of breaching the well bore and migrating into usable water.
New paragraph 3162.3-3(b) would require that all fracturing and refracturing operations meet the performance standard in section 3162.5-2(d) of this title. Among other things, that section requires operators to isolate all usable water and other mineral-bearing formations and protect them from contamination.
Some commenters requested more clarity on how the definition of usable water would apply to the requirement to isolate and protect usable water from contamination from hydraulic fracturing operations. The BLM has revised the definition of usable water to specify that, for purposes of the hydraulic fracturing regulations, usable water includes underground sources of drinking water, zones actually used for water supply for industrial or agricultural purposes (unless the operator shows that the industrial or agricultural user would not be harmed by failure to protect or isolate), and zones designated by the State or the tribe as requiring isolation or protection from oil and gas operations. The BLM has also revised the section to specify that, for the purposes of the hydraulic fracturing regulations, usable water does not include the zone authorized for hydraulic fracturing, zones designated as “exempted aquifers” under the Safe Drinking Water Act (SDWA), and zones that the State or tribe have explicitly designated as exempt from any requirement for oil and gas operators to isolate or protect. Any other zones containing water that does not exceed 10,000 ppm TDS would be considered usable water. The BLM recognizes that including aquifers not otherwise exempted would be consistent with its Oil and Gas Onshore Orders, but may make the rule more stringent than other Federal, State, and tribal laws. The BLM invites comments specifically on the incremental costs associated with protecting zones that contain up to 10,000 ppm of total dissolved solids, that are not already protected under SDWA or equivalent State or tribal law, and not excluded in the proposed definition (i.e., those aquifers protected by part (4) in the proposed definition of usable water). BLM may consider excluding such zones in the final rule.
The BLM believes that the revised language makes explicit the appropriate deference to the expertise and professional judgment of the State or tribal agencies entrusted to manage the groundwater resources under their respective jurisdictions.
Section 3162.3-3(c) would require the BLM's approval of all proposals for hydraulic fracturing or refracturing activity. The operator has the option of applying for the BLM's approval in its APD, including the information required by paragraph (d) of this section.
The operator may submit a Sundry Notice and Report on Wells (Form 3160-5) as a Notice of Intent Sundry for the hydraulic fracturing proposal for the BLM's approval before the operator begins the fracturing activity. This section would supersede and replace existing section 3162.3-2(b) that states that no prior approval is required for routine fracturing. That reference in the existing section would be deleted. Also, an operator must submit a new Sundry Notice prior to hydraulic fracturing activity:
- If the BLM's previous approval for hydraulic fracturing is more than 5 years old,
- If the operator becomes aware of significant new information about the relevant geology, the fracturing operation or technology, or the anticipated impacts to any resource, or
- If the operator proposes refracturing of the well.
The 5-year period is consistent with practices in some States, including Montana, Wyoming, and Colorado, which require that operators reconfirm well integrity for fracturing operations through a pressure test every 5 years. The requirement to submit a new NOI for refracturing is new to this revised proposed rule and is added to clarify that approval of a single hydraulic fracturing operation in a well does not allow for multiple refracturing procedures without compliance with the notice, monitoring, and reporting requirements.
The BLM understands the time-sensitive nature of oil and gas drilling and well completion activities and does not anticipate that the submittal of additional hydraulic fracturing-related information with APD applications will significantly impact the timing of the approval of drilling permits. The BLM believes that the additional information that would be required by this rule would be reviewed in conjunction with the APD and within the normal APD processing time frame. Also, the BLM anticipates that requests to conduct hydraulic fracturing operations on existing wells that have been in service more than 5 years will be reviewed promptly. The BLM understands that delays in approvals of operations can be costly to operators and the BLM intends to avoid delays whenever possible. Furthermore, if an operator believes that approval of hydraulic fracturing would be swifter if it is not part of the APD, the operator has the option of submitting the Notice of Intent Sundry at a later date. However, the operator does not obtain an exemption from any requirement of this regulation by submitting a Notice of Intent Sundry after drilling and cementing operations have commenced.
Section 3162.3-3(d) has been revised from what was originally proposed to allow the Sundry Notice required by this section to be submitted for a single well or a group of wells. If the submission is for a group of wells that share substantially similar geological characteristics, the information should describe the “type well.” “Type well” is a term commonly used in the oil and gas industry and the BLM added it as a new definition in section 3160.0-5 of this rule. By constructing and monitoring a type well, including running a CEL on casing that encounters usable water, the operator demonstrates that its engineering design and execution effectively isolate aquifers with usable water in the field. The same operator may then replicate the type well for each of the wells in the approved group for the same field. The operator would not need to run a CEL on those wells unless the monitoring data indicated a problem with the cementing.
Section 3162.3-3(d)(1) would require a report that includes the geological names, a geological description, and the proposed measured depth of the top and the bottom of the formation into which hydraulic fracturing fluids would be injected. The report is needed so that the BLM may determine the properties of the rock layers and the thickness of the producing formation and identify the confining rocks above and below the zone that would be stimulated.
Under this revised proposed rule, section 3162.3-3(d)(2) would be revised by removing the reference to the CBL, because under this rule prior approval of a CBL or other CEL would no longer be routinely required. The change in this section is as a result of changes to paragraph (e) and is necessary to make this section consistent with those changes. Section 3162.3-3(d)(2) would be revised to require the operator to submit the measured or estimated depths of all occurrences of usable water using a drill log from the subject well or any other well sharing the same geological characteristics within the same geologic formation, which will help the BLM in its efforts to make sure that water resources are protected. As it pertains to the depths of all occurrences of usable water, the word “estimated” has been added because at the planning stages of the operation, the actual measured depths would not generally be available.
Although prior approval of a CEL would no longer be routinely required, operators would be required to submit to the BLM the results of a CEL with the post-completion sundry notice. The BLM will be reviewing the well drilling and completion records and logs including the CEL, to help verify that operators have complied with their duty to assure that the casings are properly cemented.
Section 3162.3-3(d)(3) would require reporting of the measured depth to the perforations in the casing and uncased hole intervals (open hole). This section would also require the operator to disclose specific information about the water source to be used in the fracturing operation, including the location of the water that would be used as the base fluid. The BLM needs this information to determine the impacts associated with operations. This rule would add “reused or recycled water” to the example list of sources and location of the water supply to be used for fracturing operations. The rule makes it clear that reused or recycled water is a recognized source of water supply for these types of operations. The information required by this paragraph does not interfere with State or tribal regulation of water allocation. The operators would need to comply with all State or tribal water laws, but need not disclose to the BLM the documents evidencing their rights to use the water. This regulation would in no way discourage operators from reusing or recycling water for new hydraulic fracturing operations.
Initial proposed section 3162.3-3(c)(4) would have required operators to certify in writing that they have complied with all applicable Federal, tribal, State, and local laws, rules, and regulations pertaining to fracturing fluids before a fracture is attempted. This section has been deleted from the revised proposed rule because the BLM believes that requiring this certification after the operator has completed hydraulic fracturing operations (see section 3162.3-3 (i)(7)) adequately protects Federal and Indian lands and resources and, therefore, the burden on industry of providing and on the BLM of reviewing that information ahead of operations is not justified.
Section 3162.3-3(c)(5) has been renumbered in this revised proposed rule as section 3162.3(d)(4) and has been revised. Section 3162.3-3(d)(4) would require the operator to submit a plan for the hydraulic fracturing design. This information is needed in order for the BLM to be able to verify that the proposed hydraulic fracturing design is adequate for safely conducting the proposed well stimulation.
Section 3162.3-3(d)(4)(i) would require the operator to submit the estimated total volume of fluids that will be used in the hydraulic fracturing operations.
Section 3162.3-3(d)(4)(ii) would require submission of the anticipated surface treating pressure range. This information is needed by the BLM to verify that the maximum wellbore design burst pressure will not be exceeded at any stage of the hydraulic fracturing operation.
Section 3162.3-3(d)(4)(iii) would require the maximum injection treating pressure information to be submitted. This information is needed by the BLM to verify that the maximum allowable injection pressure will not be exceeded at any stage of the hydraulic fracturing operation.
Section 3162.3-3(d)(4)(iv) would require the operator to submit the estimated fracture direction, length, and height, including the fracture propagation plotted on a map so that the BLM can ensure that the fracturing operations do not threaten aquifers, other resources, or other operations. The rule would also require that the information include the estimated fracture propagation plotted on the well schematics and on a map. The rule would require that the map must be of a scale no smaller than 1:24,000, which is the scale required for the map included in an APD.
The rule also would add a new paragraph 3162.3-3(d)(4)(v) that requires submission of the estimated vertical distance to the base of the nearest usable water aquifer above the fracture zone. The rule would require this information to assure that usable water is isolated from propagated fissures. Fracturing operations that are expected to propagate fissures vertically to depths near those of usable water may require closer scrutiny by the BLM than those with thousands of feet between the fissures and aquifers.
Section 3162.3-3(d)(5) would require the operator to provide for BLM's approval information about the handling of recovered fluids. This information is being requested so that the BLM has all necessary information regarding chemicals being used in the event that the information is needed to help protect health and safety or to prevent unnecessary or undue degradation of the public lands. The BLM has deleted the requirement for operators to provide the estimated chemical composition of flowback fluids because it would in effect require operators to reveal the total chemical constituents of their hydraulic fracturing fluids prior to operations. It would also require speculation as to the chemistry of fluids in the target zone, and their reactions, if any, with the hydraulic fracturing fluids. The BLM has determined that operators may justifiably change the chemical composition of hydraulic fracturing fluids after approval of fracturing operations, and even during those operations in response to such factors as availability of chemicals and unexpected geologic conditions. Thus, the reliability of the pre-operational estimated composition of flowback fluids could be imperfect. The composition of actual flowback fluids could be appropriately determined from the post-operational disclosure of the chemicals used in the fracturing operations. It is most important at the approval stage, however, for the operator to show that it has an adequate plan to manage and contain the recovered fluids that would prevent them from contaminating surface water or groundwater without regard to their specific chemical composition.
Section 3162.3-3(d)(5)(i) would require the operator to submit to the BLM an estimate of the volume of fluid to be recovered during flowback, swabbing, and recovery from production facility vessels. This information is required to ensure that the facilities needed to process or contain the estimated volume of fluid will be available on location.
Section 3162.3-3(d)(5)(ii) would require the operator to submit to the BLM the proposed methods of managing the recovered fluids. This information is needed to ensure that the handling methods will adequately protect public health and safety.
Section 3162.3-3(d)(5)(iii) would require the operator to submit to the BLM a description of the proposed disposal method of the recovered fluids. This is consistent with existing BLM regulations for produced waters (i.e., Onshore Oil and Gas Order Number 7, Disposal of Produced Water, (58 FR 47354)). This information is requested so that the BLM has all necessary information regarding disposal of chemicals used in the event it is needed to protect the environment and human health and safety on Federal and Indian lands and to prevent unnecessary or undue degradation of the public lands.
Section 3162.3-3(d)(6) would require the operator to provide, at the request of the BLM, additional information pertaining to any facet of the hydraulic fracturing proposal. For example, the BLM may require new or different tests or logs in cases where the original information submitted was inadequate, out of date, or incomplete. Any new information that the BLM may request will be limited to information necessary for the BLM to ensure that operations are consistent with applicable laws and regulation, or that the operator is taking into account site-specific circumstances. Such information may include, but is not limited to, tabular or graphical results of an MIT, the results of logs run, the results of tests showing the total dissolved solids in water proposed to be used as the base fluid, and the name of the contractor performing the hydraulic fracturing operation.
Comments on What the Notice of Intent Sundry Must Include
Some commenters requested baseline water testing prior to hydraulic fracturing operations; however, the BLM cannot authorize operators to enter non-Federal land to conduct baseline water testing, so the BLM did not change the revised proposed rule as a result. Whether to require baseline water testing on Federal land will be addressed, as is the current practice, as part of the analysis under the National Environmental Policy Act (NEPA) review, and the “downhole review” by the BLM authorized officer pursuant to Onshore Oil and Gas Orders Nos. 1 and 2. For example, if local drilling or geologic conditions, such as downhole stratigraphy involving faults, fissures, natural fractures, karst/limestone or other similar conditions require extra vigilance for any leaks of wellbore fluids to the usable water, then additional testing for baseline water could be required by the BLM as a condition of approval (COA) of a drilling permit. Similarly, the site-specific NEPA analysis of a drilling permit might reveal local environmental conditions that indicate a need to require baseline testing as a COA.
The BLM received some comments requesting that the BLM require up-front disclosure of the chemicals proposed for use in the hydraulic fracturing fluid. Commenters indicated that only through full up-front disclosure could the BLM and the public assess impacts to water, land, air quality, and human health and safety. The proposed rule was not revised based on these comments. Analysis of the impacts from hydraulic fracturing is done as part of the NEPA analysis conducted prior to the issuance of permits. For the purposes of NEPA compliance, the exact composition of the fluid proposed for use is not required because chemicals used in the hydraulic fracturing process are generally considered potentially hazardous for the purpose of impact analysis and mitigation. Operators will be aware that the rule requires disclosure of hydraulic fracturing chemicals after operations are complete and operators will also be required to certify that the hydraulic fracturing fluid used complied with all applicable permitting and notice requirements and all applicable Federal, State, and local laws, rules, and regulations (a separate but similar certification is required for Indian lands). The operator would also be required to certify that wellbore integrity was maintained prior to and throughout hydraulic fracturing operations. The BLM believes that the post-fracturing disclosures and certifications would provide adequate assurances that the hydraulic fracturing operations protect public health and safety and protect Federal and Indian resources.
The BLM also received comments in opposition to pre-disclosure of chemical constituents because of trade secret concerns and positing that the actual chemicals used will change from the pre-drilling stage based on the results encountered during drilling. While the BLM agrees with these comments, no revisions to the revised proposed rule were made because neither the initial proposed rule nor the revised proposed rule would require pre-disclosure of chemicals.
The BLM received some comments expressing concern about additional delays that would be caused by the permitting process in the proposed rule. According to the comments, unnecessary delays would be caused by having to submit voluminous amounts of information for each well proposed for hydraulic fracturing or acidization, the review and approval of CBLs prior to hydraulic fracturing, and the lack of BLM staff to perform these additional reviews. Based on consideration of these comments, the initial proposed rule has been revised. The changes include the option of including multiple wells with similar geology in the permit application (“type wells”), narrowing the scope of the rule to include only hydraulic fracturing, and the elimination of the requirement for the BLM to review and approve CBLs prior to hydraulic fracturing. These changes are discussed further in other sections of this preamble.
The BLM received some comments regarding the amount of information required in section 3162.3-3(c) of the proposed rule in order for the BLM to grant approval of hydraulic fracturing operations. The commenters stated that much of this information, such as flowback time and flowback volume, is speculative. Commenters indicated that data such as treatment volumes, chemical composition, and other specific design parameters can only be determined after the well has been drilled. Commenters also suggested that instead of providing site-specific design details which could change, the BLM should allow operators to submit a generic master design plan or type well proposal.
The BLM agrees with these comments. The revised proposed rule (section 3162.3-3(d)) would provide for a more streamlined permitting process by allowing a Notice of Intent Sundry Notice to cover a group of wells with similar geologic characteristics, rather than just a single well. If the Sundry Notice is for a group of wells, the information required in section 3162.3-3(d) would be submitted for a type well that represents a typical completion and hydraulic fracturing procedure for the group of wells included in the Sundry Notice. The requirement to submit a CBL prior to the BLM granting approval for hydraulic fracturing is also being removed in the revised proposed rule.
The BLM received some comments that suggested that more information should be required prior to approving a plan or application for a permit to hydraulically fracture a well. Some of the additional information suggested to be obtained included the total amounts of waste, recycling methods, produced fluid disposal plans, fluid transportation plans, on-site storage and chemical composition of flowback water, more geologic data, an emergency spill response plan, and information about confining zones. All of the suggestions are already parts of required APD components and other BLM regulations including Onshore Orders Nos. 1, 2, and 7. The BLM did not revise the rule as a result of these comments.
Some comments suggested that the BLM require more information both pre- and post-hydraulic fracturing, including common chemical names, composition of recovered fluids, sources of water used and storage/containment methods. Existing regulations require advance approval of plans for handling waste and hazardous materials and sources of water used in drilling and completing wells on Federal and Indian lands. The BLM did not revise the rule as a result of these comments.
The BLM received some comments stating that the proposed rule should provide for “estimates” rather than actual information in the permit application. The reason given for providing estimates is that the hydraulic fracturing plan could change from the time it is approved based on conditions encountered during drilling and for other reasons. The BLM partially agrees with this comment and has revised the rule so that it would allow the operator to submit information for a type well drilled in an area of similar geology in lieu of submitting information specific to every well proposed for hydraulic fracturing. The BLM understands that some of the information such as formation depths, will be estimations of various parameters; for example, well-specific geological strata, formation depth/zone of perforation and fracture, expected amount of fracturing fluid injection volumes and flowback from the wellbore, expected pressure and temperature during drilling and completions, etc. However, the BLM also requires that the operator submit a Sundry Notice if major changes from the approved permit are requested.
The BLM received some comments that the proposed rule requires documentation that is duplicative of other regulatory requirements and documents already submitted to the BLM, particularly the APD and Well Completion reports. The BLM agrees that some of the data that would be required in this rule is similar to that found or contained in other reports, forms and approved plans. However, the BLM believes that the requested information is unique to the hydraulic fracturing operation and is necessary for the BLM to ensure that operations are conducted in a manner that will protect groundwater, surface water, and other resources. The BLM did not revise the rule as a result of this comment.The BLM received some comments regarding the timeframes for hydraulic fracturing permit approvals. The commenters suggested that the rule should specify a set amount of time in which the BLM must complete its review of hydraulic fracturing proposals, and if that time was exceeded, the proposal would be automatically approved. The BLM did not revise the rule as a result of these comments because the imposition of a timeframe or “automatic” approvals could limit the BLM's ability to ensure protection of usable water and other resources. The BLM cannot abdicate its statutorily mandated responsibilities to prevent unnecessary or undue degradation of public lands and to protect Federal and Indian resources by establishing an artificial deadline. As discussed in other sections, however, the revised proposed rule would make several changes to the permitting process that would reduce the possibility of unreasonable delays.
The BLM received some comments questioning the rationale or need for the information requested in both the permit and the subsequent report. The BLM has determined that the requested information is important to assess the environmental impacts of the proposed operation as well as to ensure that hydraulic fracturing operations will be conducted in a manner that prevents waste of valuable minerals, protects other resources, and ensures public health and safety. No revisions to the rule were made as a result of this comment.
The BLM received some comments objecting to the requirement to estimate or calculate fracture lengths both in the application for hydraulic fracturing (section 3162.3-3(d)) and in the subsequent report (section 3162.3-3(i)). The primary objection expressed by the commenters is the difficulty, expense, and high degree of uncertainty in estimating, calculating, or measuring fracture lengths. According to the commenters, calculating fracture lengths requires elaborate computer models, which are often proprietary, and measuring fracture lengths requires seismic monitoring which adds time and expense. Some commenters questioned the need for this information, especially given that the target zone is usually thousands of feet below any known usable water zones. Other commenters stated that there is a significant economic incentive to contain fractures to the target zone in order to minimize the volume of fluid required in the fracturing process.
In order to evaluate the potential impacts of the proposed hydraulic fracturing application, the BLM must have information showing the estimated fracture lengths. This information is used to help ensure that fractures will not intersect known fault zones, communicate with older unplugged wells with questionable wellbore integrity, or communicate with usable water zones. The BLM is aware that the fracture lengths provided in the application and subsequent report are estimates. For the subsequent report, the reporting of actual fracture lengths can be used to identify potential problems. The BLM did revise section 3162.3-3(i) as a result of these comments; moreover, section 3162.3-3(d) was revised to clarify how the estimated fracture lengths are to be provided to the BLM in the application.
Section 3162.3-3(e) is new to the rule. This section would require monitoring of cementing operations and would require a CEL prior to hydraulic fracturing operations for each casing that protects usable water. The requirements are necessary to ensure that the usable water aquifers intersected during well drilling have been isolated to protect them from contamination. Because aquifers are permeable, operators routinely isolate them from hydraulic fracturing operations by lining the wellbore with a tubular casing (typically metal casing). “Surface casings” are typically run for the top 1,000 to 1,500 feet of a well. “Intermediate casings” are used where necessary at greater depths. Operators pump cement to the outside of the casing to assure that the casing will transmit the pressures of hydraulic fracturing to the surrounding rock without failure, and to assure that neither fracturing fluids nor produced oil and gas leak through or around the casing and are lost. Cementing operations, however, do not always yield a perfect result. There may be gaps, voids, or channels between a casing and the rock wall of the wellbore that lack adequate cement, and thus may be vulnerable to failure or leaks. A CEL is a class of tools that can be run down a casing to assess whether there are any significant gaps or voids in the cement behind a casing. Operators typically run a CEL on intermediate casings, but not on surface casings when the cement flows back to the surface. For surface casing an operator generally observes the cement in the annulus, and uses additional cement as needed. The initial proposed regulations at section 3162.3-3(c)(2) would have required a CBL prior to all hydraulic fracturing operations. However, a CBL is only one of a suite of technologies that are described as CELs. Under this revised proposed rule, other cement evaluation technologies, either existing or developed in the future, that are equally effective may be used. An “equally effective” technology in this context would be any methodology or tool that is at least as reliable as a CBL in detecting gaps or voids in the cement behind a casing and meets the performance objective of validating the wellbore integrity and isolating zones of usable water.
Operators may choose from several well logging techniques to evaluate the quality of the cement behind casing. Various types of logs provide different types of information. For example, a CBL presents the reflected amplitude of an acoustic signal transmitted by a logging tool inside the casing. Another acoustic log presents the waveforms of the reflected signals detected by the logging tool receiver and provides qualitative insights concerning the casing, the cement sheath and the formation. Ultrasonic logging tools measure the resonant echoes.
Under this rule, operators would have the flexibility of using suitable logs to confirm a good cement bond behind the casing to protect and isolate usable water. The BLM will review those logs after post-completion submission by the operator.
New section 3162.3-3(e)(1) would require the operator to monitor and record the flowrate, density, and treating pressure, and to submit a cement operation monitoring report to the BLM within 30 days after completion of hydraulic fracturing operations. The required monitoring data would provide important indications of problems with the cementing of casings. That monitoring data would help to verify the results of a CEL and for wells where no CEL is required will provide the primary assurance that cementing operations conformed to those of a proven type well.
New section 3162.3-3(e)(2) would require the operator to run a CEL for each casing that protects usable water, unless it is exempt from doing so under (e)(3) of this section, and to submit these logs to the BLM within 30 days after completion of the hydraulic fracturing operations. A CEL includes, but is not limited to, a CBL, ultrasonic imager, variable density logs, micro-seismograms, CBLs with directional receiver array, ultrasonic pulse echo technique, or isolation scanner.
Comments on Cement Bond Logs
The BLM received some comments in response to proposed sections 3162.3-3(b)(i), 3162.3-3(b)(ii), 3162.3-3(c)(2), that would have required operators to run CBLs and obtain approval from the BLM prior to commencing hydraulic fracturing operations. The commenters focused on seven main issues: (1) Allowing the use of other technology besides CBLs; (2) The use of other metrics to demonstrate zonal isolation; (3) Delays and costs associated with running and obtaining approval of CBLs prior to commencing hydraulic fracturing operations; (4) Reliability and interpretation of CBLs; (5) The incorporation of API Standard 65-2; (6) The ability for operators to challenge or appeal findings from the BLM regarding CBL results; and (7) The possibility of requiring CBLs on all casing strings, not just the surface casing. These comments are discussed in further detail below.
Some commenters suggested that the BLM should allow the use of other technologies in lieu of a CBL. The other technologies that were suggested include ultrasonic logs, variable density logs, micro-seismograms, standard CBLs, CBLs with directional receiver array, ultrasonic pulse echo technique, and isolation scanners. The BLM agrees with this comment and believes that these technologies could be effective at demonstrating zonal isolation. Therefore, section 3162.3-3(e)(2) would replace the term CBL with a more generic term, “cement evaluation log,” (CEL) which would include the technologies suggested by the commenters. It would also permit operators to use logging tools which are the most appropriate in any given situation.
Some commenters stated that a CBL provides only one indication of the quality of a cement job. The comments said that there are other, perhaps more reliable, methods of determining the quality of the cement job such as:
- Monitoring cement returns to the surface during the cement job. If good cement returns are achieved, it is a positive indication that there were no unexpected or untreated voids or fractures in the wellbore, which helps ensure that cement was properly placed between the wellbore and the casing;
- Placing centralizers on the lower joints of casing to ensure the casing is concentric to the wellbore, allowing a uniform cement sheath to form between the casing and the wellbore;
- Witnessing the amount of “fall back” of cement in the annulus; while it is normal for the top of the cement to retreat down the annulus as the cement sets, excessive fall-back can indicate that problems were encountered during the cement job;
- Monitoring the pressures, flow rates, volumes, and densities of cement during the cement job. If these parameters are consistent with the values anticipated during the design of the cement job, it is a good indication that no unexpected conditions were encountered during the cementing and that a cement seal has been established;
- Ensuring that there were no equipment failures during the cement job, such as line breaks or pump failures; and
- Applying other analytic techniques such as temperature logs and formation integrity tests.
Some commenters stated that the BLM should require the operator to run a CBL only if one or more of these methods indicated a problem with the cement job. The BLM agrees with these comments and proposes several revisions in the revised proposed rule as a result. The revised proposed rule includes a new section 3162.3-3(e)(1) that would establish requirements for monitoring cementing operations, including the need to monitor and record flow rate, density, and pumping pressure of the cement. In addition, section 3162.3-3(e)(4) would require the operator to run a CEL if there are indications of an inadequate cement job such as lost returns, cement channeling, gas cut mud, or equipment failure. If the monitoring information provides indications of an inadequate cement job, the operator would also be required to notify the BLM within 24 hours, submit a written report within 48 hours, and to certify that the inadequate cement job had been corrected and document that zonal isolation had been achieved prior to starting hydraulic fracturing operations. The BLM also agrees with the importance of centralizers in obtaining zonal isolation; however, because Onshore Order No. 2 (Section III.B.1.f) already requires centralizers on the bottom 3 joints of surface casing, an additional requirement to run centralizers is not needed in this rule.
Some commenters objected to the cost of running a CBL on every well and, perhaps more importantly, the delay associated with the BLM review of CBLs prior to allowing operators to start hydraulic fracturing operations. Some comments referenced the current delays in permitting due to lack of staff and stated that this additional approval step would only serve to exacerbate these delays. Several revisions are included in the revised proposed rule as a result of these comments. For wells where there are no indications of an inadequate cement job, section 3162.3-3(e)(3) would provide an option to run a CEL only on a type well that is representative of local geology and typical drilling and completion techniques. If the CEL run on the type well demonstrated zonal isolation, CELs would not be required on subsequent wells where there were no indications of an inadequate cement job. However, Section 3162.3-3(e)(4) would require an operator to run a CEL on all wells where there are indications of an inadequate cement job, such as, but not limited to, lost returns, cement channeling, gas cut mud, or failure of equipment, that show that remedial action and evaluation are necessary. In addition, the revised proposed rule would eliminate the need for the BLM to review and approve the CEL prior to commencing hydraulic fracturing operations. Instead, operators would submit CELs run under section 3162.3-3(e)(2) within 30 days of completing hydraulic fracturing operations. CELs for type wells would have to be submitted prior to exempting subsequent wells under 3162.3-3(e)(3) from the requirement to run a CEL. Operators would submit CELs run under 3162.3-3(e)(4) at least 72 hours prior to commencing hydraulic fracturing operations; however no approval from the BLM would be necessary. The BLM considered a requirement for operators to receive BLM approval prior to commencing hydraulic fracturing operations in these cases. The BLM believes that the combination of the proposed notice and certification requirements would provide adequate assurance of wellbore integrity prior to hydraulic fracturing without incurring additional delay or workload. The proposed 24-hour notice would also allow the BLM time to prioritize inspections of the hydraulic fracturing operation to verify compliance with these proposed regulations, Onshore Order Number 2, and the approved APD.
The BLM received some comments expressing concern about the reliability of CBLs and the difficulties of interpreting CBLs. Some commenters stated that CBLs are not effective until the cement has reached a certain compressive strength because CBLs work on the principal of acoustic attenuation. At low compressive strengths, commenters stated that the acoustic properties of cement and water are very similar and it is difficult to delineate between the two when interpreting logs. The commenters went on to state that the problem is more pronounced in surface casing because the lower formation temperature near the surface prolongs the setting process, requiring more time to achieve levels of compressive strength that are required for reliable log interpretation. Comments about the additional waiting times varied. One commenter suggested that a CBL on the surface casing and intermediate casing would delay drilling operations 24 hours for each test. Other commenters suggested that the CBL requirement would delay drilling operations by up to 72 hours for the surface casing alone. The commenters suggested that during this time, operators would be required to maintain idle drilling equipment on site, at a significant cost to the operators.
After researching these concerns, the BLM acknowledges the potential difficulties of running and interpreting CBLs. As a result, the BLM has determined that requiring CBLs on every well may be unnecessarily expensive, may induce unnecessary delay, and will not provide increased protection beyond what will be available by requiring a CEL on type wells. Therefore, the revised proposed rule would give operators the option of running a CEL on a type well as discussed previously. A CEL would still be required on all wells where there are indications that there is an inadequate cement job. The BLM also believes that allowing the use of other technology such as ultrasonic logs could make the log interpretation less subjective.
The BLM also received some comments expressi