One of the most controversial aspects of the natural gas industry’s expansion in Colorado over the past decade has concerned the use of hydraulic fracturing or “fracking” - the injection of chemical fluids into natural gas-containing rock formations to release trapped gas. 

By David Scott, Brownstein Hyatt Farber Schreck

On the one hand, fracking has allowed energy companies to tap previously unavailable supplies of natural gas, raising the possibility that large amounts of domestic gas
will be available into the distant future.  But the issue of fracking has raised the ire of environmentalists and others concerned about its impacts on water supplies and human health.  This concern is heightened because the exact makeup of fracking fluid is closely-guarded by the energy industry, and usually no one aside from the company injecting the water and chemicals into the ground has any idea which chemicals are being used. 

DIALOGUE GOES NATIONAL

The potential environmental impacts of fracking has caught Congress’ attention.  In mid-January the CEOs of Exxon Mobile and XTO told Congress that fracking is indeed safe and that more than one million wells have been drilled using the method with no documented water contamination.  Their testimony was provided during the House Energy and Commerce Committee’s hearing on the potential energy market implications of the merger of the two companies.  While currently there is proposed legislation in both the House and Senate to regulate fracking, neither bill would ban fracking altogether.  Instead, proposals seek to amend the Safe Drinking Water Act to remove the federal regulatory exemption authorized in 2005 and to require drillers to disclose the chemicals they use in the process. 

Additionally, in response to concerns that fracking chemicals have reached underground drinking water supplies, House Energy and Commerce Committee chairs Henry Waxman and Ed Markey sent letters in mid-February to eight companies seeking more information about the fracking process.  The letters requested documents relating to the number of wells that use fracking, the total volume of production and chemicals used in the process, the health and environmental impacts of the fluids, responses to allegations of negative environmental and health effects, the percentage of fluids recovered, and the volume of produced water.  The companies’ responses to those information requests are still pending.

 REVISITING ISSUE OF FRACKING FLUID

The Environmental Protection Agency (EPA) is also focusing on determining the make-up of fracking fluid.  On March 18, EPA announced that it is launching a new study to determine what health effects, if any, fracking may cause.  EPA hopes to complete the study by the end of 2011.  While EPA has already taken a close look at this issue before and concluded in a 2004 study that fracking poses “little or no threat” to underground drinking water, recent cases of chemicals in rural wells near gas fields have rekindled EPA’s interest in the issue.  

EPA’s scoping document outlines three potential study areas: characterization of the fracturing lifecycle; its relationship to drinking water resources; and the potential health and environmental risks from the practice.  In each of these areas, the scoping document poses broad questions regarding the characteristics and environmental impacts of fracking fluids.

For example, the lifecycle analysis section of the study poses such research questions as:

♦ What are the fate and transport properties of fracking fluids?
♦ What materials and design/construction practices are needed for wells to which fracking treatments will be applied?
♦ What types of monitoring and testing can be used to ensure wells and fractures are placed in appropriate locations to protect underground sources of drinking water?
♦ What are the most effective methods for well failure mitigation?
♦ What safeguards are necessary to prevent mechanical integrity failures that could result in leaks of fluids and gases into drinking water?

LIFECYCLE APPROACH CONCERNS INDUSTRY

While environmental advocates view the pending EPA study as the first step toward regulation of fracking fluid, the industry is understandably concerned about its scope.  Of particular concern is EPA’s reference to a “lifecycle analysis” as part of the study.  EPA has attempted a similar “lifecycle” approach with respect to renewable fuels, with great controversy and little agreement among stakeholders as to the viability of such an analysis. 

In the face of this renewed interest by Congress and EPA, the natural gas industry continues to maintain that fracking is safe, and argues that there has never been a documented drinking water contamination case.  At the January hearing in Washington, however, the representatives of Exxon Mobile and XTO stated a willingness to share the chemical makeup of their fracking mixtures with regulators.  This willingness is an apparent shift from the previous industry position that revealing the make-up of those mixtures would be akin to Coca-Cola releasing the proprietary formula for Coke. 

David Scott is an associate in Brownstein Hyatt Farber Schreck’s Denver office. A member of the firm’s natural resources and water & public lands groups, David’s practice focuses on environmental, renewable energy and water law.