REGULATORY: EPA Releases Final Hydraulic Fracturing Study Plan

by King & Spalding
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[authors: Lynn Kerr McKay, Drew T. Bell]

On November 3, the EPA released its final Plan to Study the Potential Impacts of Hydraulic Fracturing on Drinking Water Resources (“Final Plan”).  EPA plans to release an initial report of the results of this study by the end of 2012.  It expects to publish the final results of this study in 2014.  The agency released a draft of the study plan in February 2011 and collected comments and input from a variety of stakeholders during the spring and summer. 

The study will be EPA’s most extensive review of hydraulic fracturing to date.  Earlier studies, such as EPA’s 2004 review of hydraulic fracturing in coalbed methane operations, did not directly address the potential impacts of hydraulic fracturing in shale oil and gas development.  Although the 2004 review found no evidence suggesting that the fracturing of shallow coalbed methane wells had contaminated drinking water wells, certain critics on Capitol Hill complained that the review did not completely study the issue, was “politically motivated and scientifically unsound,” and was reviewed by parties who had conflicts of interest.  Abrahm Lustgarten & Sabrina Shankman, Congress Tells EPA to Study Hydraulic Fracturing, PRO PUBLICA, Nov. 10, 2009, available at http://www.propublica.org/article/congress-tells-epa-to-study-hydraulic-fracturing-hinchey-1110.  EPA developed the Final Plan in response to a Congressional directive to assess the potential risks to drinking water posed by hydraulic fracturing.  EPA, noting serious citizen concerns about hydraulic fracturing’s potential impact on drinking water, as well as human health and the environment, initiated further study to investigate not only potential risks, but all possible relationships between hydraulic fracturing and drinking water.  This more in-depth examination led to the current Final Plan, which calls for examining the hydraulic fracturing water lifecycle. 

With this study, EPA expects to address the concerns about hydraulic fracturing in previously unconventional reservoirs, including shale, coalbeds, and tight sands.  The industry anticipates that the study’s results will answer the public concerns surrounding hydraulic fracturing.  Although the plan proposes a comprehensive review of the impacts of hydraulic fracturing on drinking water, it will not address certain other areas of concern that were raised during the development of the Final Plan, including potential air impacts, seismic effects, occupational hazards, and disposal of hydraulic fracturing wastewaters in Class II underground injection wells. 

EPA’s study will evaluate the impacts on drinking water from five segments of the hydraulic fracturing process: water acquisition, surface spills near well pads, well injection, flowback and produced water management and storage, and wastewater treatment and disposal.  EPA will review existing data and conduct its own case studies, scenario evaluations, and laboratory analyses.  The study will rely on data received from oil and gas operators as well as federal and state agencies for its analysis.  EPA will collaborate with “outside experts from the public and private sector” to conduct the study.  In one case study in Washington County, Pennsylvania, EPA will collaborate with investigators from the United States Department of Energy, United States Geological Survey, United States Army Corps of Engineers, and the Pennsylvania Geological Society.  EPA’s laboratory studies will attempt to understand toxicological risks to drinking water resources, if any, presented by hydraulic fracturing fluid and wastewater, and measures that might be taken to mitigate those risks.  EPA plans to sample both finished water sources (i.e., taps) and natural water sources, such as surface water and the aquifer, to evaluate levels of contamination.

Among the study’s central features are five retrospective and two prospective case studies at sites in North Dakota, Texas, Pennsylvania, and Louisiana.  The retrospective case studies will focus on reported drinking water contamination near sites where hydraulic fracturing operations have occurred.  The prospective studies will monitor impacts from the five segments of hydraulic fracturing going forward.  To select the sites, EPA accepted public nominations.  It chose the locations from those nominated based on their ability to represent a wide range of potential impacts to drinking water from hydraulic fracturing activities.  EPA’s decision criteria included:  the proximity of population and drinking water activities to well sites, the density of the wells in the area, evidence of impaired water quality (for retrospective studies), geographic and geologic diversity, and the diversity of the suspected impacts to drinking water sources.  The five retrospective studies will be performed in Dunn County, ND (Bakken), Wise County, TX (Barnett), Bardford and Susquehanna Counties, PA (Marcellus), Washington County, PA (Marcellus), and Las Animas and Huerfano Counties, CO (Raton).  The two prospective studies will be performed in DeSoto Parish, LA (Haynesville) and Washington County, PA (Marcellus).  The study locations are all shale locations, except for one.  That one location—the Raton formation—is a coalbed methane formation.

The plan takes into account comments EPA received in response to the draft study plan it issued in February 2011.  EPA states that it will continue to reach out to stakeholders for input, however, the final plan does not include a formal comment period.  EPA plans to include its analysis of existing data, preliminary findings from its retrospective case studies, and initial laboratory and toxicological results in the initial 2012 report of results.  The data from EPA’s prospective case studies and certain laboratory studies will only be available in its final report, expected in 2014. 

Although EPA’s hydraulic fracturing study is ambitious in scope, its consequences will not be apparent until its results are released.  Until then, we expect EPA and state regulators to continue to focus on environmental issues surrounding hydraulic fracturing.


Lynn Kerr McKay
Washington, D.C.
+1 202 626 2944
lmckay@kslaw.com

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  Drew T. Bell
Washington, D.C.
+1 202 626 5513
dbell@kslaw.com

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The content of this publication and any attachments are not intended to be and should not be relied upon as legal advice.

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