United States: 'Twas The Night Before Christmas---Not A Creature Was Stirring, Except EPA--EPA Releases Final Fracking Report And General Assembly Tees Up Review Of MDE's Proposed Fracking Regulations

Last Updated: January 14 2017
Article by Marian C. Hwang and Jeremy S. Scholtes

As the Obama era comes to a close, on Christmas eve the U.S. Environmental Protection Agency ("EPA") issued its final report on "Hydraulic Fracturing for Oil and Gas: Impacts from the Hydraulic Fracturing Water Cycle on Drinking Water Resources in the United States" ("Report"). The EPA Report undoubtedly will assume great importance during the current legislative session as the Maryland General Assembly ("MGA") considers pending regulations on oil and gas exploration and production issued by the Maryland Department of the Environment (""MDE") to allow hydraulic fracturing with enhanced controls and limitations ("Regulations"). In Maryland, proposed hydraulic fracturing, commonly called fracking, would involve injecting fluids at high pressure into the Marcellus Shale to break up the rock and release natural gas stored within it. Anticipated fracking in the State would occur in Western Alleghany and Garrett Counties, where the Marcellus Shale is located. The Marcellus Shale formation underlies Ohio, Western Maryland, Ohio, Pennsylvania, New York and West Virginia, and is the largest onshore natural gas reserve in the United States.

The EPA Report evaluates five (5) activities in the hydraulic fracturing water cycle and their potential to impact drinking water resources. The activities include: (1) acquiring water to be used for hydraulic fracturing, (2) mixing the water with chemical additives to prepare hydraulic fracturing fluids, (3) injecting the hydraulic fracturing fluids into the production well to create fractures in the targeted production zone, (4) collecting the wastewater that returns through the well after injection, and (5) managing the wastewater via disposal or reuse methods.

While the EPA noted certain data gaps and uncertainties, such as the lack of comprehensive information, which limited the EPA's ability to fully assess the potential impacts on drinking water resources both locally and nationally, the EPA's Report states that it found scientific evidence that hydraulic fracturing activities can impact drinking water resources under some circumstances. The report identifies certain conditions under which impacts from hydraulic fracturing activities can be more frequent or severe, including:

  • Water withdrawals for fracking in times or areas of low water availability, particularly in areas with limited or declining groundwater resources;
  • Spills during the handling of hydraulic fracturing fluids and chemicals or produced water that result in large volumes or high concentrations of chemicals reaching groundwater resources;
  • Injection of hydraulic fracturing fluids into wells with inadequate mechanical integrity, allowing gases or liquids to move to groundwater resources;
  • Injection of hydraulic fracturing fluids directly into groundwater resources;
  • Discharge of inadequately treated hydraulic fracturing wastewater to surface water; and
  • Disposal or storage of hydraulic fracturing wastewater in unlined pits, resulting in contamination of groundwater resources.

Due to the data limitations, the EPA did not calculate or estimate the national frequency of impacts on drinking water resources from activities in the hydraulic fracturing water cycle or fully characterize the severity of impacts.

Against this backdrop of the EPA's Report, as well as significant community opposition to fracking, MDE's proposed Regulations will be evaluated.  MDE's Regulations were proposed on November 14, 2016, and the public comment period closed on December 14, 2016.  While MDE reviews the public comments, the MGA on December 29, 2016 requested MDE to delay the final adoption of the Regulations so that the MGA could conduct a more detailed study of the Regulations, which MDE agreed to do.

On December 20, 2016, the Maryland General Assembly commenced hearings to evaluate MDE's fracking regulations, which foreshadow the fight over whether to ban the fracking before the rules take.  MDE's Secretary Ben Grumbles has called the rules a "platinum package," a step up from the "gold standard" previously released in early 2015 under former Gov. Martin O'Malley; and unlike the 2015 regulations, MDE's Regulations would prohibit fracking within the Deep Creek Lake watershed in Garrett County and require quadruple layers of cement and steel around wells and deep safety valves, as well as other precautions.  Notwithstanding MDE's efforts to develop stronger regulations and safeguards, many jurisdictions have either approved or proposed bans on fracking either locally or statewide.  These localities include:  the counties of Prince George's, Montgomery, Anne Arundel, and Frederick, and the cities of Baltimore, Frostburg, Rockville and Greenville, and the towns of Friendsville and Mountain Lake Park.

In the General Assembly's December 29, 2016 letter to MDE, the MGA stated that it will be examining "more closely a number of issues relating to whether the statutes under which the regulations were adopted authorize the adoption and whether the regulations conform to the legislative intent of the statutes. The committee [also] wishes to ensure that concerns raised by stakeholders about the regulations are addressed."  Whether MDE's proposed Regulations can withstand the heightened public and legislative scrutiny remains to be seen---but it will surely be an emotional, significant and contentious battle of wills between various citizen, business and governmental interest groups. 

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.

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