Senate Bill 76 changes key provisions of  hydraulic fracturing legislation adopted by the N.C.  General Assembly just eight months ago.  Section 1 of the bill has already attracted attention because  it would allow  the Department of Environment and Natural Resources and the Mining and Energy Commission to begin issuing permits for hydraulic fracturing on March 1 2015 without any further action by the General Assembly – whether adequate fracking rules are in effect or not.

Section 4 of the bill has gotten less attention, but it  may  make  the most significant change in state environmental law.   N.C. law  has long prohibited underground injection of waste because of the risk of  contaminating drinking water supplies. (See  N.C.G.S. 143-214.2) The General Assembly amended the law  in 2012 to make it clear that fluids could be injected  to produce gas by hydraulic fracturing, but kept the prohibition on  injection of  waste.  As amended  by Session Law 2012-143, the law allows injection of  “hydraulic fracturing fluid for the exploration or development of natural gas resources”. Senate Bill 76  proposes to change the law again — this time in a way that appears to allow  underground disposal of wastewater from drilling operations. The  proposed language would allow injection of any “fluid associated with the exploration, production or development of natural gas resources”.

Since the Senate Bill 76 language does not put any limitations on injection of drilling  fluids (including drilling waste), it appears to be inconsistent with  federal Safe Drinking Water Act requirements.  U.S. Environmental Protection Agency rules under the Safe Drinking Water Act allow waste injection wells to be permitted only  where injection  can be done without contaminating groundwater that is suitable for drinking water supply.

Underground injection of drilling waste is a common practice in some oil and gas states, but DENR’s 2012  hydraulic fracturing study recommended against allowing underground injection of drilling waste in North Carolina.  Section 4 of the N.C. Oil and Gas Study talks about the conditions that could make underground injection of waste more risky here than in other gas producing states.  Among the reasons — North Carolina geology makes  it  more  difficult to insure that  waste injected into the  fractured bedrock of the shale region will not move into underground drinking water supplies.