The Environmental Protection Agency (EPA) yesterday released a new draft report on the potential impact of hydraulic fracturing for oil and gas on drinking water. The study concludes that there are “potential vulnerabilities in the water lifecycle that could impact drinking water.”

The report, based on the latest peer reviewed scientific research, directly contradicts a 2004 EPA report, conducted under the Bush Administration, that said that fracking “poses little or no threat” to the drinking water supply, and “does not justify additional study at this time.” (see Section 7.4). That study was used to justify the Energy Act of 2005, which created the infamous Halliburton Loophole that gutted the Safe Drinking Water Act and allowed oil and gas companies to keep secret the chemicals used in fracking.

The 2004 report is also the basis for one of the great lies told by the oil industry: “there is no proven case where the fracking process has affected water.” We’ve clearly documented over and over that this is not true.

According to Dr. Thomas A. Burke, EPA’s Science Advisor and Deputy Assistant Administrator of EPA’s Office of Research and Development. “(The study) is the most complete compilation of scientific data to date, including over 950 sources of information, published papers, numerous technical reports, information from stakeholders and peer-reviewed EPA scientific reports.”

Stages of the hydraulic fracturing water cycle (from the EPA report)

The vulnerabilities cited by the report include:

• water withdrawals in areas with low water availability;
• hydraulic fracturing conducted directly into formations containing drinking water resources;
• inadequately cased or cemented wells resulting in below ground migration of gases and liquids;
• inadequately treated wastewater discharged into drinking water resources; and
• spills of hydraulic fluids and hydraulic fracturing wastewater, including flowback and produced water.

These are all issues that we have discussed regularly on this site. I’ve provided some links above to posts on the site that provide examples of these issues.

So now what happens?
The next steps in the formal EPA process include:

• The draft study now goes through a process of review by the EPA Science Advisory Board, which includes a thorough review of the quality and relevance of the scientific and technical information being used by the EPA
• The draft is opened to public review and comment.
• The report will be accepted

Once the report is accepted, the EPA can use it adopt appropriate regulations on federal lands.

The oil and gas industry isn’t going to take this lying down
I’m delighted that this report has been released, and that it utilizes scientific data to get at the truth about the dangers to water caused by hydraulic fracturing.

But the formal EPA process isn’t all that’s about to happen. Here’s what else is coming: the study will be attacked relentlessly by the oil and gas industry, and by Senators and Congresssmen who benefit from large contributions from that industry. The report will languish, get watered down, and might not even survive.

If rules are enacted based on the accepted report, those rules will be attacked in court. We’ve seen this happen over and over again with the EPA and other federal agencies. Over the last several years, the EPA has backed away from taking any substantive position that will make a definitive assessment of the dangers of fracking. Here are clear examples of how the EPA has buckled under industry pressure:

• Closed an investigation into groundwater pollution in Dimock, Pa., saying the level of contamination was below federal safety triggers.
• Abandoned its claim that a driller in Parker County, Texas, was responsible for methane gas bubbling up in residents’ faucets, even though a geologist hired by the agency confirmed this finding.
• Sharply revised downward a 2010 estimate showing that leaking gas from wells and pipelines was contributing to climate change, crediting better pollution controls by the drilling industry even as other reports indicate the leaks may be larger than previously thought.
• Failed to enforce a long-standing statutory ban on using diesel fuel in fracking until last month, after the use of diesel has become obsolete in the industry.

Most recently, in March of this year the Bureau of Land Management (BLM) issued new rules regarding fracking on federal lands. These rules were directed at two of the exact issues identified in today’s assessment: well casing requirements and the management of wastewater.

And what has happened since then? Not only has the oil and gas industry sued to block these rules, but the states of Wyoming, Colorado and North Dakota have joined the suit.

It is questionable whether the BLM rules will ever be implemented.

Criticism of the EPA study
There is already considerable criticism of this study, much of it based on design flaws related to the refusal of the oil and gas industry to participate in “prospective” studies.

A prospective study is one which seeks to assess the association between a hypothesized risk factor and an outcome by sampling both exposed and unexposed subjects (or intervention and non-intervention groups) and then following them for the period of study. In other words, get baseline data for a small number of wells, some in fracking areas and some not, and then test the water before, during and after drilling.

Prospective studies were included in the EPA project’s final plan in 2010 and were still described as a possibility in a December 2012 progress report to Congress. The problem is that you can’t do a prospective study without cooperation from the oil and gas companies.

As the political climate changed in their favor, the oil companies become less willing to cooperate. Republicans took control of Congress in 2010 and were more sympathetic to oil interests. And in 2012, President Obama was running for election and touting the economic benefits of fracking. Nobody was going to push the oil and gas industry.

They dug in their heels and not a single company agreed to participate in the EPA study.

“We won’t know anything more in terms of real data than we did five years ago,” said Geoffrey Thyne, a geochemist and a member of the EPA’s 2011 Science Advisory Board.  “This was supposed to be the gold standard. But they went through a long bureaucratic process of trying to develop a study that is not going to produce a meaningful result.”

The oil companies, after refusing to cooperate, will likely jump on flaws in the study design to refute the findings.

From the EPA report, water consumption by county compared to water used for fracking. Click to enlarge.

And what about Montana?
Most of the regulation of hydraulic fracturing is done by states rather than the federal government. Over the last 20 years, Congress has gutted the protections of the Clean Water Act, Safe Drinking Water Act, the Comprehensive Environmental Response, Compensation and Liability Act, and the Resource Conservation and Recovery Act.

But ideally, says Dr. Burke, “EPA’s draft assessment will give state regulators, tribes and local communities and industry around the country a critical resource to identify how best to protect public health and their drinking water resources.”

Can we expect that to happen in Montana?

Probably not.

To date Montana has shown no interest in regulation that will protect drinking water. In fact, in its most recent session the Legislature rejected every significant bill that would have regulated oil and gas activity in the state. These included protections for water testing, well setbacks from residences, surety bonds for operators, and the use of closed loop system well design.

It is also well established the Montana Board of Oil and Gas Conservation (BOGC), the agency with primary responsibility for permitting oil and gas wells, is in the business of promoting the drilling of oil and gas wells for profit, and has no interest in regulation that protects landowner rights.

The answer is local regulation
Yesterday’s EPA report is the latest step in the growing scientific evidence that links fracking to water contamination. But for those of us concerned about the dangers imposed by fracking to our properties, our communities and our water, it is small consolation.

Montana provides a legal basis for local communities to regulate oil and gas activities. It is called citizen initiated zoning. Through this process, communities can act to protect themselves against the kinds of risks described in the EPA report. Communities are currently working through this process in several counties throughout Montana. But the process is fragile. It is subject to the whims of County Commissioners and a nationwide movement by the oil and gas industry to wipe out all local control of oil and gas.

Landowners should have a right to protect their properties.

Additional resources
Executive summary of EPA report
EPA final report (600 pages)
Report appendices
Published scientific studies associated with the report
FAQ on the study