U.S. Department of Energy Study Says Fracking Does Not Cause Water Pollution

On September 15, 2014, the U.S. Department of Energy’s National Energy Technology Laboratory (DOE) released a report of a major federal study titled “An Evaluation of Fracture Growth and Gas/Fluid Migration as Horizontal Marcellus Shale Gas Wells Are Hydraulically Fractured in Greene County, Pennsylvania.”  The study concluded that there was no evidence that hydraulic fracturing (fracking) caused the contamination of drinking water at a study location in Pennsylvania.

Fracking is a method of extracting oil and gas deposits that are inaccessible by conventional drilling. Fracking uses millions of gallons of high-pressure water mixed with sand and chemicals to break apart rocks rich in oil and gas. Fracking has become increasingly common over the past decade and is largely responsible for the current energy boom in the United States, but the practice has led to concerns regarding potential groundwater contamination.

ETT BLOG_frackingAfter studying one particular site in western Pennsylvania for 18 months, the DOE determined that neither fracking chemicals nor brine water from the gas drilling process had contaminated area drinking water.  The report said that the chemicals used in fracking remained approximately 5,000 feet below drinking water supplies.  The study marked the first occasion where a company agreed to have its fracking operations independently monitored.

The DOE acknowledged, however, that fracking at other sites may have different results due to variation in geology or drilling methods.  The site studied by the DOE was limited to six wells at one location in western Pennsylvania.  It should be noted that Pennsylvania regulators have noted instances where surface spills of chemicals or wastewater damaged drinking water supplies.

At the same time the DOE study was released, scientists from Duke, Ohio State, Stanford, Dartmouth and the University of Rochester released a study in Proceedings of the National Academy of Sciences titled “Noble gases identify the mechanisms of fugitive gas contamination in drinking-water wells overlying the Marcellus and Barnett Shales.”  The study, which took place in the Marcellus Shale in Pennsylvania and in the Barnett Shale in Texas, concluded that defective construction of the wells caused pollution, but not the fracking process itself.  This study focused on 113 drinking water wells in Pennsylvania and 20 wells in Texas that were known to have elevated levels of methane.  An analysis of gas geochemistry data implicated leaks through annulus cement in four cases, production casing in three cases and underground well failure in one case.  The study authors concluded that gas migration induced by fracking deep underground was not found to be a cause of contamination.

These studies suggest that the use of fracking as a method of extracting oil and gas deposits is not responsible for groundwater contamination.  In those rare instances where groundwater contamination occurs, it is more likely due to faulty well construction rather than gas migration induced by fracking, which takes place far below any drinking water aquifer.  The concerns identified in the universities’ study are not unique to fracking, but to oil and gas exploration generally.

EPA’s Step Toward Mandating Disclosure of Chemicals Used for Fracking

On May 9, 2014, the Environmental Protection Agency (EPA) issued an Advanced Notice of Proposed Rulemaking seeking public comment on the “types of chemical information that could be reported and disclosed under the Toxic Substances Control Act and the approaches to obtaining this information for chemicals used in hydraulic fracturing activities.”

EPA also is requesting input on “incentives and recognition programs that could support the development and use of safer chemicals in hydraulic fracturing” – also known as fracking.

EPA anticipates that the notice, which will include the due date for public comments, will publish in the Federal Register by the week of May 19.  The comment period closes 90 days after publication in the Federal Register on August 17, 2014.

How the California Green Chemistry Initiative Will Affect Consumer Product Companies

On March 13, the California Department of Toxic Substances Control (DTSC) took a step toward implementing the California Green Chemistry Initiative (CGCI) by identifying the first three consumer “Priority Products” that will be impacted by the program.

ETT BLOG_sleeping matThe first three Priority Products are (1) children’s foam-padded sleeping products, containing Tris(1,3-dichloro-2-propyl) phosphate or TDCPP; (2) spray polyurethane foam-containing unreacted diisocyantes, used in building insulation; and (3) paint and varnish strippers and surface cleaners containing methylene chloride.

DTSC will hold a series of public workshops in May and June to discuss the product-chemical combinations identified on the initial Priority Products list. For dates, times and locations, click here. Additional products will be announced in October, so all companies that sell consumer products in California will need to examine how CGCI will affect their businesses.

The initiative was signed so that instead of banning the use of a chemical without knowing the availability or safety of alternatives, the Safer Consumer Products (SCP) regulations provide a process for manufacturers to see whether the chemical is necessary or if there is a safer alternative to the chemical of concern.

The SCP regulations are part of CGCI to reduce public and environmental exposure to toxins through improved knowledge and regulation of chemicals.  CGCI has four components: (1) DTSC’s identification of “Candidate Chemicals”; (2) DTSC’s identification of Priority Products containing those Candidate Chemicals; (3) responsible entity (manufacturer, importers, assemblers, or retailers) notification and alternative analysis; and (4) DTSC’s imposition of regulatory responses to address hazards of the product or alternatives.

The announcement of the three product groups as proposed Priority Products does not trigger any duty on product manufacturers until the DTSC finalizes the list of Priority Products by adopting regulations.  However, manufacturers should be proactive and take steps to determine whether Candidate Chemicals can be removed from their products or replaced with safer alternative chemicals.  DTSC expects to initiate rulemaking to codify the initial Priority Products list in regulations in the latter part of 2014, a process that may take up to one year.  Once a Priority Product is formally listed, responsible entities must notify DTSC within 60 days if they manufacture, assemble, import, or sell one of the Priority Products, and then prepare an alternatives analysis within 180 days.

DTSC will enforce SCP regulations primarily through publication of noncompliant responsible entities and products on its website, but it may also initiate enforcement actions under the hazardous waste provisions of the California Health & Safety Code, which authorizes criminal and civil penalties. It may be costly for businesses to meet the requirements of this new regulation in terms of compliance and responding to enforcement.  SCP regulations also present obstacles for protection of proprietary information because they require public disclosure and industry reporting.

Image courtesy of Vermont Public Interest Research Group