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LEGAL UPDATE: U.S. EPA’s first draft report on effects of hydraulic fracturing on drinking water available for public comment

The United States Environmental Protection Agency (“EPA”) just released its first comprehensive draft report examining whether the process of hydraulic fracturing contaminates drinking water supplies. The report, which is now open for a brief period of public comment, will form a key piece of scientific evidence in the debate over natural gas extraction’s impact on water supplies once finalized. Although the science behind the report is complex, and greatly impacted by facts particular to the Pavillion, Wyoming area which has a large volume of gas production wells and certain unique geologic features, the EPA reached several tentative conclusions that will frame the local debate on the environmental impact of hydraulic fracturing for the next several years.

First, the EPA concludes that detection of high concentrations of BTEX components (benzene, toluene, ethylbenzene and xylene), gasoline and diesel range organics, and total purgeable hydrocarbons in ground water samples from shallow monitoring and drinking wells indicate that lecheate from local surface pits used by the gas industry have adversely impacted drinking water supplies. The EPA notes that, at this site, aromatic solvents typically comprised of various BTEX mixtures were used in a breaker as part of the gas production process.

Additionally, the EPA detected elevated levels of potassium, chloride, synthetic organic compounds, and BTEX components in its deep water monitoring wells. With regard to those findings, the EPA noted that hydraulic fracturing fluids typically used at the Pavillion Wyoming site contained 6% potassium chloride, as well as potassium metaborate and potassium hydroxide as a crosslinker and solvent.

Finally, the EPA concluded that dissolved methane levels in domestic water wells generally increased in those wells in direct proportion to their proximity to production wells. One methane blowout actually occurred during a recent well installation. Based on these collective findings, the EPA ultimately concluded that “… the data indicates likely impact to ground water that can be explained by hydraulic fracturing.”

The attorneys at Burns White who focus their practices on the oil and gas industry, environmental matters, and toxic exposure defense understand that this EPA draft report will immediately impact the Pennsylvania gas industry – from the development of local ordinances to the recently delayed vote on the contentious new Article 7 of the Delaware River Basin Commission’s Water Quality Regulations. It will also be immediately cited by Plaintiffs’ counsel in water well contamination lawsuits. With an interdisciplinary approach to staffing matters using lawyers with both technical backgrounds and sophisticated, yet practical problem solving skills, Burns White welcomes an opportunity to assist in preparing comments for submission to the EPA, or to speak with you more generally about these issues.

T.H. Lyda, Chad Wissinger, Jeff Roberts and Stephie-Anna Ramaley co-authored this summary, and can be reached at (412) 995-3000. Mr. Lyda, a member of the firm’s Executive Committee, focuses his practice on defending toxic tort exposure cases. Mr. Wissinger chairs the firm’s Environmental Practice Group, and has a background in environmental studies and geology. Mr. Roberts chairs the firm’s Oil and Gas Group, and has worked for years drafting leases and resolving real estate matters associated with the acquisition and sale of oil and gas rights. Ms. Ramaley is a senior associate in the Environmental Practice Group, and has an undergraduate degree in chemistry and a master’s degree in forensics.