An Update on the Review Process for EPA’s Hydraulic Fracturing Study

In June, 2015, the Environmental Protection Agency (EPA) released its long awaited draft assessment of the Potential Impacts on Hydraulic Fracturing for Oil and Gas on Drinking Resources. The major finding in the draft assessment is that there is no evidence that hydraulic fracturing has caused “widespread, systematic impacts on drinking water resources in the United States”. EPA’s Science Advisory Board (SAB) Hydraulic Fracturing Research Advisory Panel, which is responsible for providing peer review for the report, has questioned this conclusion and held several meetings, both in person and via teleconference, to discuss this and other objections that they have to EPA’s report. Public statements have been provided by an array of stakeholders on both sides of the issue. Industry advocates have included the American Petroleum Institute, Energy in Depth, the state of Oklahoma, Chevron Energy Technology, Anadarko Petroleum, and GE Oil and Gas Technology Center. These discussions have culminated into a draft SAB report to EPA Administrator Gina McCarthy, which was released on February 16, 2016.

The draft report outlines some of the concerns that the SAB had with the draft assessment report and proposes recommendations to change it. As mentioned above, the most notable of these is the conclusion of the draft assessment, which is that hydraulic fracturing has not had widespread impacts on drinking water is too ambiguous and needs more clarification and explanation. In addition, the SAB believes that EPA should discuss data limitations and other uncertainties with respect to their conclusion. It should also be more understandable to the public.

Other concerns include:

• The lack of prospective case studies which EPA had originally intended to conduct.
• A need for more emphasis in the report on local impacts, including the incidents in Dimock, Pennsylvania, Pavillion, Wyoming, and Parker County, Texas.
• A need for more discussion of the possibility of well failures and the impacts of spilled liquids that have occurred.
• A need for more discussion of chemicals used in fracturing fluids and the difference between frack fluids and hydrocarbons in flowback water.
• A discussion of industry best management practices utilized in the hydraulic fracturing process should be included.
• A discussion of how wastewater from hydraulic fracturing is treated and disposed of should be included.
• The necessity to identify needs for future research on this topic.

In addition to the SAB’s draft recommendations, Walt Hufford, a SAB member who works for Talisman Energy, USA, provided a dissenting position, which disagreed with some of the conclusions from the SAB’s draft report. He began his dissent by noting that EPA greatly expanded Congress’s original mandate, which was to conduct an assessment on the potential impacts of hydraulic fracturing to drinking water, into a much broader study covering the entire lifecycle of oil and gas development with a focus of “the use, management and production of water”. Although his dissenting opinion covered four major points, the most important of these is that Hufford said that does not think that the science shows the draft assessment, which finds that there is no widespread impact to drinking water resources, is not the correct conclusion. On the conference calls held in March where Hufford’s dissenting opinion was discussed, at least four other SAB members said that they agreed with Hufford on this point.

Other key points that Hufford raised in his dissenting opinion included:

• EPA’s failure to conduct research on two prospective sites was not necessary to the conclusion of the report.
• There is not uncertainty with respect to the chemicals used in the hydraulic fracturing process.
• There is no need for a discussion in the report on “significant data limitations and uncertainties”, because information is available, but may be difficult to access.

Now that the SAB Hydraulic Fracturing Research Advisory Panel has concluded its discussions, it is in the process of formulating a final report which is expected to be released shortly (it was supposed to be released in late March, but is not yet publically available). Once the final report is released, the chartered SAB will also review the report and then send it to the EPA administrator. Although the SAB is expected to suggest that EPA do more research this topic, it is unclear to what extent that this would occur due to limited funding for these types of projects.