(1) GAO Report: EPA Can Do More To Protect Groundwater from Pollutants Associated with Fracking
On Monday, July 28, the U.S. Government Accountability Office (GAO) released a report stating that EPA can do more to protect groundwater sources from pollutants associated with hydraulic fracturing. The report also provided specific recommendations that might help the agency with this effort.
Details of the Report
GAO was asked to review EPA’s oversight of its Underground Injection Control (UIC) class II program and approved state class II programs. These programs are charged with regulating fracking wells. According to GAO, roughly two billion gallons of fluids are injected into more than 172,000 U.S. wells each day during the fracking process. Because much of the country relies on underground sources for drinking water, these regulatory programs are important to maintaining the safety of the nation’s water supply.
During its analysis, GAO reviewed the class II programs from eight states: California, Colorado, Kentucky, North Dakota, Ohio, Oklahoma, Pennsylvania and Texas. The report examined several issues, including (1) the program’s safeguards to protect drinking water; (2) EPA’s oversight and enforcement of class II programs; and (3) the reliability of program data for reporting.
Overall, GAO concluded that EPA has much work to do. For example, although state programs have established drinking-water safeguards—such as construction requirements for injection wells—EPA has not developed safeguards that address emerging underground injection risks, such as seismic activity and overly high pressure in geologic formations that can lead to surface outbreaks of fluids. EPA has also not adequately planned reviews of other emerging risks resulting from fracking, such as high pressure in formations. Without such reviews, GAO reckons that the programs may not be adequate to fully protect groundwater.
Also, EPA has not consistently conducted key oversight and enforcement activities for class II programs. For example, EPA has not evaluated its program guidance, which dates from the 1980s, to determine which enforcement activities are essential for effective oversight. The agency also does not consistently conduct annual on-site state-program evaluations as directed in its guidance because, according to some EPA officials, the agency doesn’t have the resources to do so. Further, in order to enforce state class II requirements, EPA must incorporate state-program requirements and future state changes into federal regulations through rulemaking. But EPA has been unable to incorporate all such requirements and changes in large part because of the burdensome nature of the rulemaking process. Thus, EPA may not be able to enforce all state-program requirements, which further weakens its ability to protect groundwater sources.
Finally, while EPA collects a large amount of data on each class II program, GAO contends that the data are often not reliable to report at a national level. While EPA is working on a national database that will allow it to report UIC results nationally, the database will not be fully implemented for at least two to three years.
Recommendations and Conclusion
Given these issues, GAO recommended several actions for EPA to consider: (1) task a UIC working group to review emerging risks and related program safeguards, including over-pressurization of formations; (2) evaluate and revise, as needed, UIC program guidance to effectively oversee class II programs; (3) conduct a rulemaking to incorporate state-program requirements into federal regulations and consider alternative processes to efficiently review and incorporate future state changes without a rulemaking; and (4) support uniform nationwide reporting goals until a national UIC database is implemented.
Although EPA objects to the rulemaking recommendations—complaining that such actions would require inordinate time and resources to complete—it agrees with nearly all of the other recommendations. EPA has agreed to begin implementing some of these ideas soon.
(2) EPA Seeking Comments on Potential Chemical-Disclosure Regulations
On May 9, 2014, the Obama administration began a process that may result in new federal regulation of hydraulic fracturing. EPA, through an advance notice of proposed rulemaking (ANPR), is seeking public comment to determine whether companies should be forced to disclose the contents of their fracking fluids. While issuing an ANPR doesn’t guarantee a final rule, it does signal that the administration is open to demanding more transparency regarding the chemicals used during fracturing activities.
Details of the ANPR
In August 2011, Earthjustice and more than 100 other groups filed a petition with EPA, requesting that the agency promulgate Toxic Substance Control Act rules that would require reports of the chemicals used in fracking exploration and production. Instead of issuing a rule that demanded more transparency, the administration decided to issue this ANPR in order to determine whether to move forward.
The ANPR is seeking comments on several issues. EPA wants advice on what information should be reported to EPA or publically disclosed by EPA regarding the identity, quantities, and types of chemicals used in fracking. Other issues include the following: who (manufacturers, processors, or both) should report or disclose information on chemicals used; whether the agency should create a mandatory or voluntary-disclosure program; whether the agency should use third-party entities to collect this information; and how often companies should be required or asked to report the contents of its fluid.
EPA is also trying to determine how detailed these chemical-disclosure reports should be. For example, new rules might require not only the trade name and content of fluids used in fracking but also the number of workers likely to be exposed to the chemicals and all existing data concerning the human and environmental health effects of the chemicals. The agency is seeking advice on how to handle trade-secrets information: in particular, determining whether and how data that are claimed to be trade secrets could be reported to EPA and then disclosed – all the while protecting the identities of individual products and firms. And EPA is determining whether to create incentive programs that could be used to support the development and use of safer chemicals in fracking. One idea would be to create an EPA-sponsored voluntary initiative that would provide resources and recognition for companies committed to promoting and using sustainable practices; the agency is asking for suggestions of other programs that might be useful as well.
While EPA is seeking public comments, new disclosure regulations are far from guaranteed or imminent. EPA could eventually decide not to issue a new rule. And even if it creates a rule, the agency will have to go through another period of public notice and comment, further delaying action. That said, the administration’s decision to issue this ANPR is significant, as it could lead to significant federal oversight over the fracturing process. We will continue to keep our clients and contacts posted on future developments.
(3) Bureau of Land Management (BLM) Continues to Review Public Comments Regarding Proposed Federal Fracking Regulations on Public Lands
As we reported in June 2013, the U.S. Department of Interior’s BLM issued a set of revised proposed rules governing hydraulic fracturing on federal lands. By the end of the public comment period in August 2013, BLM received more than 1.3 million responses. Comments came from groups across the country, with both environmental groups and the industry touching on some of their earlier criticisms. While industry groups contended that new federal regulations would be overly burdensome and costly, environmental groups complained that the rules’ chemical-disclosure website, FracFocus.org, failed to make review of its contents user friendly. BLM has not set a date for when a final rule will be released.