Wednesday, January 4, 2017

Shale Law in the Spotlight: A Timeline of EPA Actions Leading to the Issuance of the Final Hydraulic Fracturing Report

On December 13, 2016, the U.S. Environmental Protection Agency (EPA) completed a lengthy study on hydraulic fracturing and released a final report entitled, Impacts from the Hydraulic Fracturing Water Cycle on Drinking Water Resources in the United States. The content of this final report was the subject of an earlier Shale Law in the Spotlight article. This article will review the extensive history of EPA actions that led to the issuance of the final report in order to provide context for a better understanding of the substance of the final report.

The perceived need for the hydraulic fracturing study was influenced largely by the absence of regulation specifically addressing hydraulic fracturing and its potential consequences to the environment. In June 2009, legislation was introduced to repeal the Hydraulic Fracturing Exemption from the Safe Drinking Water Act, which highlighted the desire of some within Congress to regulate the injection of hydraulic fracturing fluids in oil and gas operations. As part of this continuing effort, Congressman Maurice Hinchey proposed to include in the fiscal year 2010 EPA Appropriations Bill a provision that “urge[s] the Agency to carry out a study on the relationship between hydraulic fracturing and drinking water, using a credible approach that relies on the best available science, as well as independent sources of information.” The Appropriations Bill including this language was approved by Congress on October 29, 2009.

EPA agreed to develop a comprehensive research study on the potential impact of hydraulic fracturing on drinking water resources on March 18, 2010. As its first action, in the spring of 2010, EPA started a consultation process with relevant federal and state partners indicating its plan to assess the relationship between hydraulic fracturing and drinking water. This was soon followed by public information meetings at four locations addressing the design and scope of the proposed study, respectively in Fort Worth, Texas; Denver, Colorado; Canonsburg, Pennsylvania; and Binghamton, New York, that were held through July and September 2010.

Work on the drafting of this study formally started in early 2011 and, on February 7, 2011, EPA released a Draft Plan to Study the Potential Impacts of Hydraulic Fracturing on Drinking Water Resources. In this Draft Plan, EPA stated that the research would focus on five fundamental questions relating to the potential impacts of the hydraulic fracturing water cycle on drinking water supplies. EPA also mentioned that it would use retrospective and prospective case studies as well as generalized scenario evaluations to further the understanding of those fundamental questions.

On June 23, 2011, EPA announced that the prospective case studies would be conducted in portions of the Haynesville Shale and Marcellus Shale formation while the retrospective studies would be carried out in portions of the Bakken Shale, Barnett Shale, Marcellus Shale and Raton Basin formations. EPA added that “the information gathered from these case studies will be part of an approach which includes literature review, collection of data and information from states, industry and communities, laboratory work and computer modeling.”

On November 3, 2011, EPA released its final study plan and declared that “the study will be conducted by multidisciplinary teams of EPA researchers, in collaboration with outside experts from the public and private sector.” EPA also stated that “[it] will use existing data from hydraulic fracturing service companies and oil and gas operators, federal and state agencies, and other sources.”

In December 2012, EPA issued a Progress Report on the ongoing research and described the transdisciplinary approach used to investigate the relationship between hydraulic fracturing and drinking water resources. In the media release announcing the publication of the Progress Report, EPA announced that it would seek answers from individual expert members of the Science Advisory Board (SAB) about specific Charge Questions relating to the Progress Report. In March 2013, the SAB informed EPA of the composition of its Hydraulic Fracturing Research Advisory Panel, which would undertake the peer review of EPA’s draft report relating to the study of the potential impacts of hydraulic fracturing on drinking water resources.

On June 4, 2015, EPA published its Draft Assessment of the Potential Impacts of Hydraulic Fracturing for Oil and Gas on Drinking Water Resources. Among its key findings was that EPA “did not find evidence that [hydraulic fracturing] mechanisms have led to widespread, systemic impacts on drinking water resources in the United States.”

On January 7, 2016, the SAB issued its review of the EPA’s draft assessment and found that EPA’s research design and methodology was “appropriate and comprehensive.” The SAB, however, expressed its concerns over “the clarity and adequacy of support for several major findings presented within the draft Assessment Report that seek to draw national-level conclusions regarding the impacts of hydraulic fracturing on drinking water resources.” More precisely, the SAB found that EPA’s statement referenced in the above paragraph “does not clearly describe the system(s) of interest . . . nor the definitions of “systemic,” “widespread,” or “impacts.”

Finally, on December 13, 2016, EPA released its final report on Impacts from the Hydraulic Fracturing Water Cycle on Drinking Water Resources in the United States. As stated in the earlier Shale Law in the Spotlight article, this final report largely conforms to the preliminary findings set out in draft assessment that hydraulic fracturing activities have some potential to impact drinking water resources, but that impacts to date have been relatively isolated rather than pervasive. 

Written by Chloe Marie – Research Fellow

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