Hydraulic Fracturing - Studies Without End

by Spilman Thomas & Battle, PLLC
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I recently “googled” the word “fracking” and got back 14,900,000 hits. Every few days you can find an article in a major newspaper or magazine alerting the public to the potential threat to drinking water or harm to the environment that could result from oil and gas operations that utilize hydraulic fracturing. It seems that so far as the news media are concerned, there is no allegation of threat or harm—regardless of its lack of basis in sound science or empirical data—that’s not worth publicizing. This article provides an overview of the myriad studies currently being conducted to assess potential risks from hydraulic fracturing and suggests the possible outcome from all of this research and investigation.

The first study of hydraulic fracturing risks by the U. S. Environmental Protection Agency was initiated in 1999 and is described at EPA’s website:

"EPA began a study on hydraulic fracturing used in coalbed methane reservoirs in 1999 to evaluate the potential risks to USDWs [Underground Sources of Drinking Water]. The study focused on coalbed methane reservoirs because they are typically closer to the surface and in greater proximity to USDWs compared to conventional gas reservoirs. EPA published the coalbed methane study, entitled Evaluation of Impacts to Underground Sources of Drinking Water by Hydraulic Fracturing of Coalbed Methane Reservoirs (EPA 816-R-04-003) in 2004. The published study received both internal and external peer review, and public comment on study design and incident information. EPA concluded that there was little to no risk of fracturing fluid contaminating underground sources of drinking water during hydraulic fracturing of coalbed methane production wells. EPA retained the right, however, to conduct additional studies in the future. As a precautionary measure, the Agency also entered into a Memorandum of Agreement in 2003 with companies that conduct hydraulic fracturing of CBM wells to eliminate use of diesel fuel in fracturing fluids."

See http://water.epa.gov/type/groundwater/uic/class2/hydraulicfracturing/wells_hydrowhat.cfm (emphasis added).

This study was denounced by critics of the Bush Administration who charged that potential conflicts among peer reviewers prevented an objective assessment of its findings. Nevertheless, relying in part on the study, the Energy Policy Act of 2005 contained an exemption from the permitting requirements of the Safe Drinking Water Act’s Underground Injection Control Program for fluids—other than diesel fuels—injected underground “pursuant to hydraulic fracturing operations related to oil, gas, or geothermal production activities.”

Following the 2008 elections with a new administration with an appetite for regulating fossil fuel development activities as a means of addressing climate change issues, USEPA Administrator Lisa Jackson advised House members at a hearing in May 2009 that she thought the agency should take another look at the risks posed by the practice. To this end, the House of Representatives Appropriation Conference Committee made the following request of EPA in its FY 2010 budget report:

"The conferees urge 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. . . ."


EPA chose to expand this somewhat limited request to a study encompassing the entire life-cycle of hydraulic fracturing. In its 190-page Plan to Study of the Potential Impacts of Hydraulic Fracturing on Drinking Water Resources EPA identified 5 primary areas for research which lead to 16 specific research questions to be addressed. See Table 1.

Water Lifecycle Fundamental Research Secondary Research Questions
Water Acquisition What are the potential impacts of large volume water withdrawals from ground and surface waters on drinking water resources? •    How much water is used in hydraulic fracturing operations, and what are the sources of this water?
•    How might withdrawals affect short- and long-term water availability in an area with hydraulic fracturing activity?
•    What are the possible impacts of water withdrawals for hydraulic fracturing operations on local water quality?
Chemical Mixing What are the possible impacts of surface spills on or near well pads of hydraulic fracturing fluids on drinking water resources? •    What is currently known about the frequency, severity, and causes of spills of hydraulic fracturing fluids and additives?
•    What are the identities and volumes of chemicals used in hydraulic fracturing fluids, and how might this composition vary at a given site and across the country?
•    What are the chemical, physical, and toxicological properties of hydraulic fracturing chemical additives?
Well Injection What are the possible impacts of the injection and fracturing process on drinking water resources?
 
•    How effective are current well construction practices at containing gases and fluids before, during, and after fracturing?
•    Can subsurface migration of fluids or gases to drinking water resources occur and what local geologic or man-made features may allow this?
•    How might hydraulic fracturing fluids change the fate and transport of substances in the subsurface through geochemical interactions?
•    What are the chemical, physical, and toxicological properties of substances in the subsurface that may be released by hydraulic fracturing operations?
Flowback & Water
Produced
What are the possible impacts of surface spills on or near well pads of flowback and produced water on drinking water resources? •    What is currently known about the frequency, severity, and causes of spills of flowback and produced water?
•    What is the composition of hydraulic fracturing wastewaters, and what factors might influence this composition?
•    What are the chemical, physical, and toxicological properties of hydraulic fracturing wastewater constituents?
•    If spills occur, how might hydraulic fracturing wastewaters contaminate drinking water resources?
Wastewater
Treatment & Waste
Disposal
What are the possible impacts of inadequate treatment of hydraulic fracturing wastewaters on drinking water resources? •    What are the common treatment and disposal methods for hydraulic fracturing wastewaters, and where are these methods practiced?
•    How effective are conventional POTWs and commercial treatment systems in removing organic and inorganic contaminants of concern in hydraulic fracturing wastewaters?
•    What are the potential impacts from surface water disposal of treated hydraulic fracturing wastewater on drinking water treatment facilities?

Subsequent to the development of this plan, EPA has appointed an ad hoc committee of 22 experts to advise its Science Advisory Board on both the scope and findings of the study.

As time has passed, what was initially to be a 2-year study is expected to require 4 to 5 years to complete. While citing a deadline of December 2014 for the “final” report, EPA has already acknowledged that all information to be collected will not be available by that time. With regard to the cost of this study the most recent estimate I have found is $30 million, an estimate attributed to Administrator Jackson in discussions with reporters in 2010.

Other Studies

These two studies by EPA are by no means the only examination by the federal government of the potential impacts of hydraulic fracturing. In 2009, the United States Geologic Survey through its National Water-Quality Assessment Program published a study titled “Quality of Water from Domestic Wells in Principal Aquifers of the United States, 1991-2004,” which involved sampling water from about 2,100 wells in 48 states, including West Virginia, and testing the samples for as many as 219 properties and contaminants. The study found, in part, that (a) “contaminants most often found at concentrations greater than human-health benchmarks were inorganic chemicals, with all but nitrate derived primarily from natural sources,” and (b) “man-made organic compounds were detected in more than half (60%) of the sampled wells, but concentrations were seldom greater than human-health benchmarks (less than 1% of wells).” The National Water-Quality Assessment Program is ongoing. Additionally, the Natural Gas Subcommittee of the Secretary of Energy Advisory Board (“SEAB”) released a Final Report in November 2011 discussing 20 recommendations for measures to be implemented at the federal and state levels to reduce the environmental impact and ensure the safety of shale gas production, which included the launching of additional field studies on the potential for methane migration from shale gas wells to water reservoirs. On May 11, 2012, the Department of the Interior’s Bureau of Land Management (“BLM”) published a proposed rule that would require disclosure to the public of chemicals used in hydraulic fracturing, strengthen regulations related to well-bore integrity and address issues related to flowback water. BLM continues to consider 170,000 comments received from the public on the proposed rule which is not projected to be finalized until the end of this year.

Other studies by research arms of academic institutions, non-governmental organizations and state environmental agencies investigating some aspect of hydraulic fracturing and its potential impacts on human health and/or the environment are too numerous to mention. There appears to be no limit to the amount of grant money that is available to fund this type of research.

Will the completion of EPA’s monumental study likely to be the last word on this issue? I doubt it. Given the enormous number of studies that have been performed and are ongoing, advocates on both sides of this issue will have numerous sources to cite in support of their respective positions. What’s the likely outcome of all of these studies? I believe a headline from an article in the publication InsideEPA aptly characterizes the situation: “Multiple Fracking Studies Seen Hampering Bid for Regulatory Certainty.” InsideEPA, May 20, 2011. Or, as stated by one blogger – this mass of information will lead to “Fracking Analysis Paralysis.” Eric Waeckerlin, 4/11/2011. Time will tell.
 

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DISCLAIMER: Because of the generality of this update, the information provided herein may not be applicable in all situations and should not be acted upon without specific legal advice based on particular situations.

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