United States: EPA Announces Face-to-Face Meeting to Discuss Proposed Hydraulic Fracturing Study

The Environmental Engineering Committee of EPA's Science Advisory Board will meet on April 7 and 8, 2010, to evaluate the proposed hydraulic fracturing study and to provide advice to the agency on its plans for carrying out the study.

For more than half a century hydraulic fracturing has been used to extract natural gas from coal seams, shale formations and other hard-to-access geologic formations. To enhance production, fluids, such as water with various chemical additives, are injected at high pressure to create and enlarge fractures in rock and coal formations so that oil and gas can travel more freely. As use of this method of extraction has grown, increased concerns have been raised about the amount of water needed to conduct hydraulic fracturing and the potential contamination of water supplies.

In its $32 billion Interior and Environment Appropriations Bill, the U.S. House of Representatives urged the U.S. Environmental Protection Agency (EPA) to assess this risk, utilizing the best available science. EPA has now allocated almost $2 million to conduct a peer-reviewed study of "fracking." On March 18, 2010, it announced that the Environmental Engineering Committee of its Science Advisory Board would meet on April 7 and 8, 2010, to evaluate the proposed hydraulic fracturing study scheduled for completion in 2012 and to provide advice to the agency on its plans for carrying out the study. This meeting is open to the public.

EPA's Past Investigation and Regulation of Hydraulic Fracturing

In the 1997 Eleventh Circuit Court decision LEAF v. EPA, 118F. 3d 1467 (11th Cir. 1997), the court ruled that hydraulic fracturing of coalbeds to produce methane gas was a form of underground injection and that Alabama's EPA-approved underground injection control program must regulate this practice in an effective manner. As a result of this decision and of concerns raised by the public and U.S. Congress, EPA decided to evaluate hydraulic fracturing's risk to underground sources of drinking water. EPA's draft study was completed in 2002 and found that this practice posed a minimal threat to underground sources of drinking water. EPA also concluded that no additional studies were warranted. These same conclusions were verified in the final study report published in 2004. However, as a precautionary measure EPA entered into an agreement with the three largest hydraulic fracturing companies to eliminate the use of diesel fuel in fracturing fluids injected into coalbed methane (CBM) production wells.

The study results were then used to support an amendment to the Energy Policy Act of 2005 that exempted hydraulic fracturing from coverage under the Safe Drinking Water Act, except for prohibiting the use of diesel fuel in fracturing fluids utilized at CBM production wells. Environmentalists criticized the EPA study, claiming that the data were skewed, and several members of Congress have tried to pass legislation to roll back the 2005 exemption, as well as to require further study of hydraulic fracturing by EPA. House Bill 2766 and Senate Bill 1215 would eliminate the exemption, and members of the House and Senate Energy and Commerce Committee, led by Representatives Henry Waxman (D-CA) and Edward Markey (D-MA), are calling for further study of the environmental effects of chemical additives in fracturing fluids, as well as investigation of the possible use of diesel fuel in CBM production well fracturing fluids in violation of the 2003 agreement.

Recent State Initiatives to Investigate and Regulate Hydraulic Fracturing

Because of increased interest in more widespread use of hydraulic fracturing to exploit natural gas reserves in the Marcellus Shale, which runs from Ohio and West Virginia into Pennsylvania and upstate New York, government officials in New York and Pennsylvania are stepping up their own investigatory and regulatory efforts. In January 2010, Pennsylvania Governor Ed Rendell announced new draft regulations designed to prevent the escape of drilling chemicals into domestic water supplies, as well as the hiring of 68 new Pennsylvania Department of Environmental Protection inspectors. Companies engaged in such drilling would have to take the following actions:

The New York State Department of Environmental Conservation (DEC) has now completed a supplement to its draft generic environmental impact statement (DGEIS) covering horizontal drilling and high volume hydraulic fracturing to develop the Marcellus Shale and other low permeability gas reservoirs. The DGEIS rejects a ban on these extraction methods, but calls for the use of a phased-permitting approach, with possible limitations or restrictions in designated areas, as well as the investigation and appropriate use of green or non-chemical fracturing technologies and additives. The DEC held a hearing in October 2009 on the DGEIS supplement and is now evaluating the comments that it received.

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