EPA Technical Roundtables Concerning Potential Impacts of Hydraulic Fracturing on Drinking Water Resources

In 2010, Congress urged the Environmental Protection Agency (EPA) to study the relationship between hydraulic fracturing and drinking water.

Congress directed the EPA to use the best available, independent sources of information and a transparent and peer-reviewed process, in consultation with others. The study has drawn both support and criticism in how it has been conducted.

Beginning in 2010, the EPA met with stakeholders to identify concerns and study scope and released a final study plan in November 2011. After holding five technical roundtables in November 2012, the EPA released a progress report in December 2012. Each technical roundtable focused on one of the water cycle stages in hydraulic fracturing.

A summary of the roundtable discussions was published in February 2013. Below is a brief description of the discussions in each roundtable. Additional technical workshops are scheduled for Spring 2013 with additional technical roundtables expected in the Summer. 

The EPA expects to release a draft report of results in December 2014 for peer review.

Water Acquisition Roundtable

  • The participants discussed water withdrawal impacts, including the need to differentiate between the impacts of hydraulic fracturing and other impacts. One participant remarked that seasonal impacts to ground water can be greater than hydraulic fracturing impacts.
  • Hydraulic fracturing can have both positive and negative impacts on public water systems (PWS). It was suggested that payment to PWSs for water use in hydraulic fracturing can allow for investment in infrastructure or other long-term needs, and could help small municipalities improve their systems.
  • Water use for hydraulic fracturing constitutes a very small percentage of water use; agricultural and public water supplies use a large percentage of water in the areas where hydraulic fracturing occurs. It was noted that hydraulic fracturing is a “consumptive use” of water. 
  • The panel discussed the use of freshwater in hydraulic fracturing, stating that non-freshwater sources should be developed.
  • The members of the roundtable indicated that air emissions, regulatory structure, use of chemical additives, community impacts, energy use and issues with storing flowback waters for reuse need to be considered.

Chemical Mixing Round Table

  • The EPA is currently examining what chemicals are or have been used in hydraulic fracturing and what might get into drinking water resources. It is gathering available information regarding the chemical, physical and toxicological characteristics of chemicals known to have been used in hydraulic fracturing fluids or found in hydraulic fracturing wastewaters. The EPA is not undertaking a risk assessment.
  • A panel member stated that “drilling through freshwater zones is one of the greatest concerns with hydraulic fracturing and that the effects are from drilling fluids, not hydraulic fracturing fluids. Drilling fluids (which may contain some of the same chemicals used in hydraulic fracturing fluids) are not…part of EPA’s current study.”
  • The EPA’s sources of chemical information include “federal and state government documents, industry-provided data, and other reliable sources based on the availability of clear scientific methodology and verifiable original sources. This includes information provided by nine hydraulic fracturing service companies, nine oil and gas operators, and FracFocus.”
  • The EPA is looking at ground water, wastewater and flowback matrices, all of which vary by chemical.
  • A participant suggested that the EPA consider the fact that chemical use during hydraulic fracturing changes over the life of the play. Another attendee stated that the “chemicals are being used safely and there are no unnecessary risks to the public; companies consider the frequency of use, severity and toxicity when deciding to use a chemical.”
  • The EPA provided information regarding QSAR modeling, which estimates the potential chemical, physical or toxicological properties for a chemical based on the known relationship between chemical structure and toxicity of a large number of chemicals with known properties.
  • A “triple bottom line” analysis considering environmental, social and economic components was suggested.

Well Injection Round Table

  • The panel members discussed the parameters and assumptions in the EPA’s fluid migration model, TOUGH+ (Transport of Unsaturated Groundwater and Heat). This model can evaluate the potential for fluids (liquids and gases) to move from the fracturing zone to drinking water aquifers. This model is a "test of possibility, not probability."
  • As an initial screening point, the use of indicator compounds (such as total dissolved solids or chlorides) was mentioned.
  • The participants emphasized the importance of measuring baseline conditions.
  • There were discussions of the importance of proper cementing and what constitutes a well failure. 

Flowback and Produced Water Round Table

  • Sources of information for the flowback and produced water work include spills database analysis and five retrospective case studies (Bradford County, Pennsylvania; Las Animas/Huerfano Counties, Colorado; Dunn County, North Dakota; Washington County, Pennsylvania; and Wise County, Texas)
  • The EPA is focusing on the number and severity of spills associated with hydraulic fracturing, not the impacts of spills.
  • From the industry’s standpoint, hydraulic fracturing fluid is fluid that is pumped down into the ground; produced water is any water produced from the wellbore; and flowback is water in the initial phase of produced water. The EPA defines flowback and produced water as “wastewater.”
  • For its case study sampling efforts, the EPA chose locations of previous complaints and took samples from streams, drinking water wells, ponds, and other water sources. All samples were taken at one time for a given site.
  • Produced water cannot be categorized in a generic sense because it varies from site to site, region to region.
  • The EPA has established nationally applicable technology-based discharge requirements for most oil and gas discharges under 40 CFR Part 435. Under Part 435, direct dischargers of oil and gas wastewaters are subject to zero discharge requirements which can be met through underground injection of wastewater in disposal wells (40 CFR Part 144, Class II UIC Wells). 

Wastewater Treatment and Waste Disposal Round Table

  • The laboratory and field studies that are relevant to this review include wastewater treatability studies, contaminant residual studies, surface water modeling, source apportionment studies, and disinfection byproduct precursor (DBP) studies.
  • Some panel members discussed the difficulty of determining the source of contaminants in watersheds.
  • The EPA has not yet looked at chemical toxicity issues. The participants suggested that there needs to be a way to characterize toxicity if the wastewater is going to be discharged or reused; the study should address the complexity and toxicity of organics; and a review of toxicity and the effects of surface discharge on aquatic life could provide information on some constituents other than bromide, chloride and sulfate.
  • All positive and negative aspects of reuse need to be discussed. A participant suggested that the EPA consider the effectiveness of treatment prior to reuse and the impacts of residuals generated. It was also recommended that the EPA’s study look at the UIC (Underground Injection Control) program used to dispose of hydraulic fracturing wastewater and the long-term effects of this disposal practice, including pollutant migration issues.
  • There was a discussion of future discharge trends, including when will produced water volumes exceed the potential for reuse, what are the rates of new investment in the oil and gas industry, what new treatment processes are being considered, and what factors will impact future wastewater management (e.g., regulatory drivers, geological constraints, and regional differences). 


This article was prepared by Barclay R. Nicholson (bnicholson@fulbright.com or 713 651 3662)  and Heather Corken (hcorken@fulbright.com or 713 651 8386) from Fulbright's Energy Practice and Environmental Practice, respectively.

Illinois Lawmakers Propose Fracturing Legislation

On Thursday, February 21, two Illinois State Representatives proposed a bill to regulate hydraulic fracturing in the state. The proposed legislation, House Bill 2615, was prepared after months of negotiations between lawmakers, the oil and gas industry, and environmental concerns.

The bill includes a number of additional requirements for the oil and gas industry but has been hailed by the industry as a positive legislative step forward.

After the HB 2615 was proposed, Illinois Governor Pat Quinn praised the bill as being good for the state’s economy. 

The bill is supported by the oil and gas industry, in part because of the lengthy negotiations process that occurred before the law was drafted between the industry, environmental community, and state legislators. 

Thus, while some environmentalist critics of the bill urge support for a two-year moratorium on fracturing in Illinois, the comprehensive negotiations that occurred prior to the bill’s drafting mean the bill will probably be enacted into law by the legislature.

The proposed legislation would enact a number of requirements on the oil and gas industry, including:
  • A requirement that fracking fluid be stored in closed tanks; 
  • Limitations on flaring of natural gas; 
  • A requirement that fracking chemicals be disclosed to the public; 
  • A state web site where drilling applications will be made available to the public; and 
  • A legal “rebuttable presumption” that oil and gas drillers are liable for water-source contamination near high-volume fracking operations unless proven otherwise.

This article was prepared by Barclay R. Nicholson (bnicholson@fulbright.com or 713 651 3662) from Fulbright's Energy Practice.

Ohio Governor Seeks Radiation Testing Requirements For Oil and Gas Waste

On February 12, 2013, Ohio Governor John Kasich introduced his two-year, $63.2 billion budget, including a provision that would require drillers of oil and natural gas to test their drilling waste for radiation before disposal in Ohio landfills.

The budget proposal, introduced as Ohio House Bill 59, was developed by the Ohio Departments of Health and Natural Resources and the Ohio Environmental Protection Agency.

Under Section 1509.074 of the bill, drilling wastes containing more than certain thresholds for concentrations of technologically enhanced radioactive material (“TENORM”) must either be diluted under regulatory supervision or sent to one of the out-of-state low-level radioactive disposal sites licensed to handle such material.

The proposal sets the TENORM threshold at five picocuries per gram of radium-226 or radium-228. Crushed rock, dirt, and drilling mud used in oil and gas operations may contain naturally occurring radioactive materials (“NORM”), but NORM is exempted from regulation because it can be found anywhere in the environment.

The law may have little practical effect on oil and gas companies drilling in the region, as most oil and gas companies already test materials generated during the drilling process for radioactivity.

“This is in an abundance of caution, but very proactive. We think the volumes will be low, we think the levels will be low,” said Ohio Department of Natural Resources spokeswoman Bethany McCorkle in an interview. “But it’s a proactive measure.”

This article was prepared by Lauren Brogdon (lbrogdon@fulbright.com or 713 651 5375) from Fulbright's Litigation Practice Group.

Operators Required to Notify Allegheny County, Pennsylvania Health Officials Before Fracking Operations Begin

Recently, members of the Allegheny County Health Departmen (ACHD) approved new shale drilling air quality rules requiring drillers to notify the ACHD no less than 72 hours before constructing well pads, drilling, conducting hydraulic fracturing, and gas flaring.

These proposed rules have been criticized by the Pennsylvania Department of Environmental Protection (DEP) as conflicting or overlapping with Act 13 of 2012 which preempts all local statutes regulating oil and gas operations.

As an approved air pollution control agency, the ACHD “believes that Act 13 preserves the department’s authority to regulate air impacts of oil and gas operations” in Allegheny County (which includes Pittsburgh) and that the new rules simply insure that the ACHD will be able to schedule its own inspections and air quality reviews.

The county asserted that the notification requirements are needed to ensure that drillers are living up to local air quality standards and meeting inspection mandates. Read the ACHD’s proposed rules.

This article was prepared by Barclay R. Nicholson (bnicholson@fulbright.com or 713 651 3662) from Fulbright's Energy Practice.

Pennsylvania Senate Proposes Rule to Use Mine Wastewater in Hydraulic Fracturing

The Pennsylvania Senate environmental and energy committee approved legislation that would limit the treatment liability of entities that choose to utilize acid mine drainage (AMD) water for hydraulic fracturing of oil/gas wells, or other industrial uses.

AMD is Pennsylvania’s single greatest source or water pollution, responsible for approximately 2500 miles of contaminated waterways.

According to State Senator Kasunic who proposed the bill:
... [o]ne of the major reasons the oil/gas industry has not fully committed to utilizing AMD is the concern with the old adage ‘once you touch it, you own it’. The steep costs of treating AMD and the continued liability associated with an AMD source can often run into the millions of dollars. Without limiting these potential costs it is highly unlikely the industry will consider using AMD over other fresh water sources.
The bill provides liability protection from the perpetual treatment of AMD at its source when the end use is for hydraulic fracturing or industrial use.

An AMD treatment project eligible for this liability protection would be vetted through a Department of Environmental Protection (DEP) process developed in the Environmental Good Samaritan Act (Act 68 of 1999).

Senate Bill 411 can be found at the Pennsylvania Legislation's web site. Read the DEP’s White Paper: Utilization of Mine Influenced Water for Natural Gas Extraction Activities.

This bill follows the release of a January 2013 DEP white paper that sets out rules governing the use of mining runoff in hydraulic fracking. See the DEP’s white paper, Utilization of Mine Influenced Water for Natural Gas Extraction Activities.

For further information also see our blog post, "Pennsylvania Sets Rules for Using Mine Wastewater in Fracking Operations."

This article was prepared by Barclay R. Nicholson (bnicholson@fulbright.com or 713 651 3662) from Fulbright's Energy Practice.

New Jersey Assembly Moves Along Fracking Ban Bill

On Monday, February 11, 2013, the New Jersey General Assembly advanced a bill that would permanently ban hydraulic fracturing in New Jersey. Bill A-567 advanced from the solid waste committee and will be sent to the general assembly for a vote.

While bill sponsor Connie Wagner, D-Bergen praised the bill as a response to “man-made disruption to the environment,” opponents of the bill worry that a ban on fracking discourages business and innovation in New Jersey. 

Sara Bluhm of the New Jersey Business & Industry association questioned whether the Bill would discourage companies from creating jobs in New Jersey.

The Bill’s proposed text states that “the practice of the drilling technique of hydraulic fracturing . . . has been found to use a variety of contaminating chemicals and materials that can suddenly and in an uncontrolled manner be introduced into the surface waters and ground water of the State.” Similar legislation was passed in 2011 but was vetoed by Governor Chris Christie. Christie initially placed a one-year moratorium on hydraulic fracturing to await the results of the EPA’s fracking study. That moratorium expired in January of this year.

This article was prepared by Barclay Nicholson (bnicholson@fulbright.com or 713 651 3662) fromFulbright's Litigation Practice Group.

Pennsylvania's Proposed Emergency Drinking Water Support Fund

Pennsylvania State Senator Jay Costa (Democrat, Forest Hills) has proposed a bill which would place a $10 surcharge on permits issued by the state’s Department of Environmental Protection (DEP) for hydraulic fracturing activities in the Marcellus Shale.

This surcharge would be transferred to the bill-created Emergency Drinking Water Support Fund. 

The fund would be “used for testing of well water” by a DEP approved testing laboratory and the purchasing of clean water for residents and businesses if needed. Residents and businesses who “have reason to believe their well water is contaminated from either an accidental spill of fracking water or chemicals, seepage of chemicals and fracking water or seepage of natural gas dislodged by the fracking process” can request that their water be tested. 

If the test determines that the water contains chemicals or natural gas higher than DEP or EPA recommended levels and the DEP determines that the contamination probably resulted from Marcellus Shale drilling activity, then the DEP will purchase water for the affected household or business until a final determination of the source of the contamination is made and the responsible driller begins to provide water to the household or business. 

The bill has been sent to the Senate’s Environmental Resources and Energy Committee for consideration. 

A similar bill that had been introduced during the 2011-2012 legislative never came out of committee.

See a copy of the bill.

This article was prepared by Barclay Nicholson (bnicholson@fulbright.com or 713 651 3662) from Fulbright's Litigation Practice Group.

New California Lawsuit Claims Recently Issued Drilling Permits Do Not Comply with State Environmental Regulations

Recently, the Center for Biological Diversity sued the California Department of Conservation, Division of Oil, Gas, and Geothermal Resources (DOGGR), complaining that the DOGGR has issued permits for hydraulic fracturing that violate its Underground Injection Control (UIC) Program and “its statutory mandate to assure that hydraulic fracturing does not cause damage to life, health, property, natural resources, and underground or surface waters.”

The Center seeks an injunction preventing the DOGGR from issuing permits for oil and gas well operations “without tracking, monitoring, or otherwise supervising the high-risk, unconventional underground injection practice of hydraulic fracturing . . . ”

Read the Complaint.

This article was prepared by Barclay Nicholson (bnicholson@fulbright.com or 713 651 3662) from Fulbright's Litigation Practice Group.

Pennsylvania, New York, and Texas Address Radioactivity Associated with Hydraulic Fracturing Operations

On January 24, 2013, the Pennsylvania Department of Environmental Protection (“DEP”) launched a study to examine naturally occurring radiation associated with the development of oil and natural gas in the state. 

DEP plans to collect samples of flowback water, rock cuttings, treatment solids and sediments at well pads and wastewater treatment and waste disposal facilities to analyze the naturally occurring levels of radioactivity in those substances.

The study will also examine radiation levels in pipes, well casings, storage tanks, treatment systems, and trucks. According to DEP, the study is expected to take 12 to 14 months. The agency will provide progress reports to its water, waste, radiation, and citizens’ advisory councils throughout that period.

New York State has also recently analyzed radiation levels associated with hydraulic fracturing operations in the state, finding that “significant adverse impacts on human health are not expected from routine [high volume hydraulic fracturing] operations.”

In addition to examining naturally occurring radioactivity in drilling wastes, the study, which was publicly leaked in the New York Times on January 3, 2013, also analyzed the possibility of water contamination and air emissions, finding that both were likewise “below levels of significant health concern.”

Texas has also acknowledged the relative safety of radioactive material in hydraulic fracturing fluids. On January 30, 2013, the Texas Commission on Environmental Quality (“TCEQ”) issued a draft rule that would create an exemption from the TCEQ low-level radioactive waste licensing requirement for the disposal of certain radioactive tracers used in the exploration, development, or production of oil and gas resources.

The exemption would only apply to those who already hold a state license to use, store, and transfer radioactive material, and would allow for the continuation of the industry practice of utilizing on-site disposal pits or Class II injection wells for the disposal of radioactive tracers.

The TCEQ memorandum proposing the regulation stated that without the licensing exemption, “the regulated community is left without a longstanding and economical practice for disposal of the material.”

The anticipated public hearing date on the rule is March 5, 2013, with an anticipated public comment period of February 15, 2013, to March 18, 2013. The anticipated adoption date is June 5, 2013.

This article was prepared by Heather M. Corken (hcorken@fulbright.com or 713 651 8386) from Fulbright's Environmental Law Practice Group and Lauren Brogdon (lbrogdon@fulbright.com or 713 651 5375) from Fulbright's Litigation Practice Group.

EPA May Reconsider Air Emissions Standards for Hydraulic Fracturing Operations—Litigation Delayed

In August 2012, the EPA published in the Federal Register standards for oil and gas production facilities promulgated under the New Source Performance Standards (NSPS) and National Emissions Standards for Hazardous Air Pollutants (NESHAP) programs.

The NSPS portion of the rulemaking, NSPS Subpart OOOO, included control requirements for the hydraulic fracturing of natural gas wells, storage vessels, compressor engines, pneumatic controllers, and fugitive emissions. (The NESHAP rule does not regulate hydraulic fracturing and is largely beyond the scope of this blog.)

With the new NSPS, the EPA is for the first time regulating air emissions associated with hydraulic fracturing operations. Due dates under the NSPS rule vary. Some requirements, such as a requirement to use combustion controls during frack flowback, took effect in October 2012.

 Storage vessel provisions are due to take effect in October 2013. A mandate to employ “reduced emission completions” (aka “green completions”) is scheduled for 2015.

No new EPA rulemaking goes unchallenged these days, and the NSPS and NESHAP rules have been no exception.

 Industry groups, including the American Petroleum Institute, have petitioned the EPA to reconsider the rule and also filed challenges in the District of Columbia Circuit Court of Appeals. The court challenges have been consolidated as American Petroleum Institute v. U.S. EPA.

On January 16, 2013, the EPA submitted an unopposed motion to sever the NSPS and NESHAP issues in American Petroleum Institute v. U.S. EPA. The EPA’s motion also requested that the NSPS and NESHAP cases be held in abeyance until August 30, 2013, and May 30, 2014, respectively.

Given that the EPA already needed to clarify NSPS Subpart OOOO, it’s not much of a surprise that the EPA intends to reconsider “certain issues” in the rule. A notice of proposed rulemaking is anticipated by March 29, 2013, with finalization anticipated by July 31, 2013.

 In the longer term, the agency may also reconsider other portions of the rule in a separate rulemaking that would possibly be proposed in December 2013 and finalized in November 2014.

Of note, in its motion to sever, the EPA did not describe the “certain issues” it intends to reconsider. Based on the dates proposed, it’s a good bet that the first of the NSPS reconsideration packages will focus on existing requirements and compliance requirements with October 2013 deadlines (such as storage tank applicability and control requirements).

The earlier package also may include clarifications concerning the existing frack flowback provisions, reserving significant changes to the 2015 “green completion” requirements, if any, for the subsequent rulemaking.

Please note that the stays requested by the EPA are temporary stays of the proceedings in the court case challenging the NSPS and NESHAP rules and do not stay the deadlines in these rules.

The EPA may announce an administrative stay, or adjust deadlines through rulemaking, but unless and until the agency takes these actions, the regulatory compliance deadlines remain in effect.

This article was prepared by Heather Corken (hcorken@fulbright.com / 713 651 8386) and Bob Greenslade (rgreenslade@fulbright.com / 303 801 2747) from Fulbright’s Environmental Law Practice.