In 2009, Congress asked EPA to examine the relationship between hydraulic fracturing and drinking water resources. In June 2015, EPA released for external review a draft report entitled “Assessment of the Potential Impacts for Oil and Gas on Drinking Water Resources.” The Executive Summary observed that the Assessment “synthesizes available scientific literature and data to assess the potential for hydraulic fracturing for oil and gas to change the quality or quantity of drinking water resources.” Activities that EPA did not assess were acquisition or transport of constituents of hydraulic fracturing fluids besides water (e.g., sand mining and chemical production); site selection and well pad development; or other infrastructure development (e.g., roads, pipelines or compressor stations). The “major findings” listed in the Executive Summary were:
- “[That] there are above and below ground mechanisms by which hydraulic fracturing activities have the potential to impact drinking water resources.” Those included:
– water withdrawals in times of, or in areas with, low water
– spills of hydraulic fracturing fluids and produced water;
– below ground migration of liquids and gases; and
– inadequate treatment and discharge of wastewater.
That EPA “did not find evidence that these mechanisms have led to widespread, systemic impacts on drinking water resources…” though it did find “specific instances where one or more of the mechanisms led to impacts on drinking water resources, including contamination of drinking water wells.”
That its finding could be due to either a rarity of effects on drinking water resources or a paucity of data and studies.
EPA’s Office of Research and Development later asked EPA’s Science Advisory Board (“SAB”) to review the Assessment and provide responses to specific questions posed. By letter dated August 11, 2016, EPA’s SAB responded to EPA. The response was critical of conclusions in the Assessment’s Executive Summary. In particular, the SAB expressed “particular concern” about EPA’s “high-level conclusion” that it had not found evidence that hydraulic fracturing-related activities had led to widespread systemic results. The SAB found that “EPA did not support qualitatively its conclusion about lack of evidence …” and that if EPA intends to retain this conclusion, then it “should provide quantitative analysis that supports its conclusion.”
Other criticisms offered by the SAB included:
- Recognition of Local Impacts: The SAB concurred with EPA’s goal of assessing national-level impacts, but said the report didn’t acknowledge that local impacts can occur in stressed watersheds. It also recommended that EPA should critically analyze the data and investigation previously performed concerning potential groundwater impacts in Dimock, PA; Pavillion, WY; and Parker County, TX, “where members of the public have stated that hydraulic fracturing activities have caused local impacts to drinking water….”
- Prospective Case Studies: The SAB expressed concern that EPA had planned originally to conduct original research, but had not done so. It recommended that EPA delineate the planned studies and explain why they were not undertaken.
- Lack of probability and risk of failure discussion.
- Lack of information on toxicity of fracking chemicals.
- Failure to distinguish between: i) hydraulic fracturing vs. constituents of “produced fluids”; and ii) constituents/impacts unique to hydraulic fracturing vs. those that exist with conventional oil and gas development.
This article was authored by Robert G. McLusky, Jackson Kelly, PLLC.