Last month, I looked at the EPA’s November 2011 plan to study the potential impacts of hydraulic fracturing on drinking water resources and the implications of that plan for oil and gas producers. A new draft report issued by the EPA may be an early indicator that the EPA will, indeed, find that hydraulic fracturing adversely impacts those resources.

On December 8, the EPA released a draft report concerning its analysis of groundwater contamination near Pavillion, Wyoming.  The EPA began studying contamination in the area three years ago at the request of residents in the area who were concerned about contamination in private drinking water wells.  According to the draft report, the contamination likely was caused by the hydraulic fracturing process utilized in a nearby gas field.

To conduct its analysis, the EPA obtained samples from (1) two deep monitoring wells it constructed in the aquifer from which the drinking water in the area is obtained and (2) Pavillion area drinking water wells.  In short, the samples from the deep monitoring wells in the aquifer showed high methane levels, synthetic chemicals consistent with gas production, and hydraulic fracturing fluids that exceeded Safe Drinking Water Act standards.  The samples from drinking water wells also showed methane, other petroleum hydrocarbons and other chemical compounds, which the EPA concluded was consistent with migration from areas of gas production. Detections in drinking water wells are generally below established health and safety standards.

If the EPA’s findings from Wyoming are confirmed, the Safe Drinking Water Act, the Clean Water Act, the Oil Pollution Act of 1990, and the Comprehensive Environmental Response, Compensation, and Liability Act (CERCLA) all could be implicated.  The EPA could even seek to utilize these existing statutes, which contain significant penalty provisions, to address the investigation or cleanup of groundwater contamination caused by hydraulic fracturing. And while the EPA recognizes that the findings in Wyoming are specific to Pavillion where the hydraulic fracturing is taking place in and below the drinking water aquifer and in close proximity to drinking water wells – it did not exclude the possibility of similar findings in different production conditions in other areas of the country. Accordingly, this issue should be monitored by oil and gas producers that use or plan on using hydraulic fracturing in their production operations.

The EPA’s draft report is open to a 45-day public comment period and subject to a 30-day peer-review process led by a panel of independent scientists.  The public comment period ends on January 27, 2012.  If you would like to chime in, instructions for doing so can be found here.