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Oil and Gas Alert: U.S. EPA progress report on fracking and drinking water

On Friday, December 21, 2012 the United States Environmental Protection Agency (EPA) issued its long awaited progress report on its Study of the Potential Impacts of Hydraulic Fracturing on Drinking Water Resources (Study). The EPA is undertaking this Study in response to a 2009 request from Congress to examine the relationship between hydraulic fracturing and drinking water resources. The EPA spent the next two years developing the scope of work for the Study to respond to Congress’s request. That scope of work was finalized in November of 2011, and the bulk of the government’s recently issued progress report describes the process and procedure of how that Study will be tasked and completed. The EPA has designed the scope of the research for its Study around five stages of the hydraulic fracturing water cycle. Each stage of the cycle is associated with a primary research question: 

  • Water acquisition: What are the possible impacts of large volume water withdrawals from ground and surface waters on drinking water resources?
  • Chemical mixing: What are the possible impacts of hydraulic fracturing fluid surface spills on or near well pads on drinking water resources?
  • Well injection: What are the possible impacts of the injection and fracturing process on drinking water resources?
  • Flowback and produced water: What are the possible impacts of flowback and produced water (collectively referred to as “hydraulic fracturing waste water”) surface spills on or near well pads on drinking water resources?
  • Waste water treatment and waste water disposal: What are the possible impacts of inadequate treatment of hydraulic fracturing waste water on drinking water resources?

The progress report focuses on 18 specific research projects the EPA has undertaken to answer these five questions, and on progress made as of September 2012 for each of these projects. None of the projects has reached a stage where the EPA is able to issue particular findings or conclusions. The 18 projects can be broken down into five different categories of research activities:

  1. Analysis of existing data
  2. Scenario evaluations
  3. Laboratory studies
  4. Toxicity assessments
  5. Individual case studies

In its analysis of existing data, the EPA is reviewing various sources of data from both the oil and gas industry and from states with high levels of oil and gas activity. They have collected data from nine different companies that have fractured a total of 24,925 wells between September 2009 and October 2010. They are also assessing data on chemicals in water use from over 12,000 well-specific chemical disclosures that have been made through FrackFocus, a national hydraulic fracturing chemical registry. They are assessing construction and fracturing records provided by well operators for 333 oil and gas wells to assess the effectiveness of well construction practices. They are assessing spill databases maintained by the States of Colorado, New Mexico and Pennsylvania, as well as information collected from the National Response Center for Oil and Chemical Spills. Finally, they are reviewing relevant peer review data and published reports that provide insight and assistance in answering the study’s five core questions.

In its scenario evaluations, the U.S. EPA is using computer modeling to assess both hypothetical and real life situations pertaining to water acquisition, well injection and waste water treatment and disposal stages of the water cycle. In assessing real life scenarios, the study will assess potential impacts on drinking water sources from withdrawing large volumes of water for fracking sites in the semi-arid upper Colorado River Basin and in the humid Susquehanna Water Basin. In another project, public water supply intakes on surface waters located downstream from publically operated treatment facilities that accept hydraulic fracturing waste water will be assessed using surface water transport models.

Laboratory studies will focus primarily on the treatment of hydraulic fracturing waste water and how the discharge of those treated waste waters into surface water might impact drinking water quality. Particular attention will be focused on the formation of brominated disinfection byproducts, a phenomenon which has drawn considerable attention for its impact on drinking water supplies in the Pittsburgh metropolitan area.

The toxicity assessment portion of the study will focus on those chemicals most frequently found in hydraulic fracturing fluids and in flowback and produced water. Chemical, physical and toxicological properties of these chemicals are being compiled to determine their impact in workplace and drinking water exposures. Finally, the EPA is conducting five specific case studies at well locations in Colorado, North Dakota, Texas, and in Northeast and Southwest Pennsylvania. These case studies will involve significant sampling of the environmental media surrounding well sites to assess specific impacts to the environment. As of September 2012, each of the case study sites had gone through two rounds of sampling with additional rounds scheduled for late 2012 and Spring of 2013.

Although the progress report provides an in-depth detail on the scope of work for the EPA’s Study, it offers little insight into any regulatory initiatives that might be coming for the oil and gas extraction industry. Study results and conclusions are not anticipated until 2014. Until that time, it is anticipated that states will continue to play the dominant role in regulation of fracking activities.

For more information, please contact:

Theodore J.  Esborn

Jeffrey R. Huntsberger

Mike L. Snyder

Mike W. Wise

Click here for more information regarding oil and gas leasing.

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© 2013 McDonald Hopkins LLC All Rights Reserved. This Alert is designed to provide current information for our clients, friends and their advisors regarding important legal developments. The foregoing discussion is general information rather than specific legal advice. Because it is necessary to apply legal principles to specific facts, always consult your legal advisor before using this discussion as a basis for a specific action.