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DTCI: Impact and questions from EPA draft study on fracking

June 17, 2015

dtci-rogers-bryanOn June 4, the U.S. Environmental Protection Agency released the preliminary draft of its multiyear study assessing the potential impact on drinking water resources of hydraulic fracturing for oil and gas. Ordered by Congress in 2009 in response to growing public concern and anticipated growth of hydraulic fracturing, this study represents a comprehensive review of data from peer review journals; federal, state and local governments and agencies; nongovernmental organizations; and trade and industry groups. Also instrumental to the EPA’s report are the publicly disclosed data found on FracFocus, a chemical disclosure and well registry website maintained by the Ground Water Protection Council and Interstate Oil and Gas Compact Commission.

Just shy of 600 pages with a 28-page executive summary to boot, the EPA report concludes that that the agency was unable to find “evidence that ‘mechanisms’ [identified in the report] have led to widespread, systemic impacts on drinking water resources in the United States.” Praised by oil and gas industry groups and criticized by environmentalists, the study represents – if nothing else – the differences in the manner water is acquired, used and managed in hydraulic fracturing operations across the United States. The conclusion further reveals the problems associated with examining a single aspect (the potential impact on drinking water) and not the overall environmental concerns.

Hydraulic fracturing, or fracking, is a process by which a composition of fluids (principally water, sand and various chemicals) is injected into the ground under extremely high pressure to promote the extraction of oil, natural gas and coalbed methane from largely nonporous rock formations deep beneath the earth’s surface. Despite a common misunderstanding, fracking is not the actual process of drilling an oil or gas well, and it has been used commercially for more than 50 years. It is only recently, however, that hydraulic fracturing has grown exponentially: The EPA estimates that each year between 2011 and 2014, approximately 25,000 to 30,000 new wells were fractured and drilled. With tens of thousands of new wells fractured each year and each operation requiring thousands to millions of gallons of water, the impact on local water sources could be extensive. In addition, the chemicals used (despite comprising only 0.5 to 2 percent of the fracturing fluid) equate to massive amounts when extrapolated over the sum total of wells.

Once a well has been fractured, the fracking fluid flows back from the well in amounts equal to, greater than, or less than the original amount injected. This wastewater is then managed using various methods. It can be disposed of in underground injection wells; treated at centralized waste treatment facilities and publicly owned treatment facilities before being released into water sources; or reused in other fracturing operations, land operations or road spreading. Despite the lack of evidence of widespread impact on drinking water, the EPA study does state that there is a possibility of impact on drinking water resources.

The EPA reports that there are instances of water resources – including drinking water – being contaminated by activities associated with hydraulic fracturing. However, the lack of data on the integrity of the water resources before and after hydraulic fracturing limits the ability to determine if hydraulic fracturing caused the alleged contamination. Moreover, the sum impact on the environment – apart from the potential impacts on drinking water resources – remains unassessed. This overall impact has largely been left to other studies and regulatory schemes completed by other groups on a state-by-state basis. Indiana, which has a relatively limited number of shallower and less water-intensive wells, created a regulatory scheme that is less aggressive than some states but still addresses various environmental issues.

Hydraulic fracturing is here to stay. It is an integral part of U.S. energy policy and allows an increasing independence from foreign energy resources. As the EPA study recognizes, however, the conclusions are limited by rapidly changing industry practices and the scarcity of available data. Despite these inadequacies, the study provides an excellent starting point for all states, including Indiana, to develop additional studies on a broader cross-section of issues, to revisit their own regulatory schemes, and to engage in dialogue on the identified potential impact on water resources.

The draft study is available on the EPA’s website at: http://cfpub.epa.gov/ncea/hfstudy/recordisplay.cfm?deid=244651.•

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Bryan E. Rogers is an associate at O’Neill McFadden & Willett in Schererville. His practice areas include medical malpractice, general insurance defense, as well as environmental and natural resources law. The opinions expressed in this article are those of the author.

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