The U.S. Environmental Protection Agency (EPA) is working to increase transparency regarding the potential environmental impacts of hydraulic fracturing. In response to recent complaints by domestic well owners regarding objectionable taste and odor problems in their well water, the EPA conducted studies in Pavillion, Wyoming to investigate “possible sources and pathways for the migration of contaminants” and to analyze the potential impacts of hydraulic fracturing on groundwater. Based on analyses of water quality from four sampling events, beginning in March 2009 and ending in April 2011, the agency released a December 2011 draft report suggesting that chemical components and contaminants associated with hydraulic fracturing and natural gas production are, in fact, present in nearby water sources. In March 2012, the EPA announced plans to retest water samples collected from Pavillion.
States are also working to increase the transparency of hydraulic fracturing activities. Many states have instituted “disclosure rules,” which require fuel companies to submit reports documenting the chemical components contained in their hydraulic fracturing mixtures and to make this information available to the general public. This Article explores the recent implementation of disclosure rules in Texas and Colorado and examines whether increased transparency regarding hydraulic fracturing fluids better informs interested citizens about the potential effects of industry activities on their drinking water. Although the chemical reports mandated by disclosure rules are unlikely to provide any conclusive evidence regarding local water quality, the implementation of disclosure rules represents an important step in the general effort toward increasing awareness about the hydraulic fracturing process and its impacts on health and public welfare.
The Hydraulic Fracturing Process and Environmental Concerns
The Texas Administrative Code defines hydraulic fracturing as “the treatment of a well by the application of hydraulic fracturing fluid under pressure for the express purpose of initiating or propagating fractures in a target geologic formation to enhance production of oil and/or natural gas.” The hydraulic fracturing process requires an operator to pump fluids at high pressures into wells to create fractures in formations containing oil or natural gas. The operator monitors and gauges well pressure, repeating the process until the formation reaches its optimum fractured state. At this point, the operator reduces the pressure in the well and the resulting (remaining) hydraulic fracturing fluid (containing oil or natural gas) is carried up the well for treatment, transport, or reuse.
Concerned citizens point to the use of chemical elements in the hydraulic fracturing process as posing a particular danger for local water quality. Although the chemical components of hydraulic fracturing fluids vary, chemicals such as hydrochloric acid, sodium chloride, ethanol, and isopropyl alcohol are commonly used at well sites. While chemical components represent only a small percentage of the overall fluid composition (the majority of fracturing fluid typically consists of water and sand), disclosure is still important to maintaining the purported legitimacy of the process. As noted by one industry expert, “while virtually none of the chemicals added . . . are considered particularly toxic, all responsible producers should be willing to fully disclose to regulators and to the public the exact chemical composition of hydraulic fracturing fluids being pushed down any well . . . and the nature of its disposal.”
Critics are also concerned about the fact that hydraulic fracturing fluid requires a high concentration of water. Indeed, the overall process generally demands between “one million to five million gallons of water over three to five days.” The immense volume of water places a substantial burden on the water supplies of surrounding communities. Another major concern is the disposal of hydraulic fracturing fluids following a hydraulic fracturing treatment, as many states are not adequately equipped to handle such large volumes of wastewater. In Pennsylvania, for example, approximately 95 percent of wastewater from hydraulic fracturing is sent to sewage treatment facilities with insufficient capacity to treat the contaminated water. Similarly, New York does not have adequate infrastructure for permanent wastewater storage and must therefore dispose of wastewater from hydraulic fracturing in neighboring states.
State Disclosure Rules in Texas and Colorado
Disclosure rules are intended to “increase transparency about the safety of the hydraulic fracturing process.” Several states, including Wyoming, Pennsylvania, Arkansas, Colorado, New Mexico, Montana, West Virginia, Idaho, and North Dakota have instituted some form of disclosure rules, but these vary state to state.
Texas recently adopted House Bill (HB) 3328, which, as of February 2012, requires drilling operators to report the chemicals and materials used in hydraulic fracturing treatments. It is estimated that approximately 13,000 wells in Texas undergo yearly hydraulic fracturing in the state. Suppliers and service companies are required to disclose “each chemical ingredient intentionally added to the hydraulic fracturing fluid,” including the trade name, supplier, and a brief description of the intended use or function of each additive used; the actual or maximum concentration of each chemical ingredient; and an identification number for each ingredient. Well drillers must report chemical components on the chemical registry website, which was developed by the Ground Water Protection Council and the Interstate Oil and Gas Compact Commission. Operators are also required to submit information to the Chemical Disclosure Registry, including the operator name, the total volume of water used in the treatment, each additive used (along with the name of the supplier and intended purpose), the actual or maximum concentration of each chemical ingredient, and a supplemental list of all chemicals and respective identification numbers.
Similarly, Colorado enacted chemical disclosure requirements in December 2011, which went into effect in April 2012. According to the Colorado Oil and Gas Conservation Commission (COGCC), the primary goals of the Colorado disclosure requirements are to prevent surface spills and to ensure casing protection in order to prevent impacts to underground sources of drinking water in the state. Colorado’s Chemical Inventory and Disclosure Rule requires operators to maintain Material Safety Data Sheets for chemical products used in wells, report the use of chemical products to the COGCC, identify trade secret chemicals, and provide chemical components. These requirements allow service companies thirty days after the hydraulic fracturing treatment to submit the required information.
While the long-term benefit of state disclosure rules has yet to be determined, the recent promulgation of these rules represents the first time such information has been made available to the public. As testing of allegedly contaminated well sites proceeds, this newly disclosed data may provide important information regarding the potential for chemical releases, spills, or seepage into groundwater sources.
Groundwater Contamination and Hydraulic Fracturing Fluid: The Pavillion, Wyoming Investigation
To date, there is no conclusive scientific evidence that links hydraulic fracturing to groundwater contamination. Indeed, much of the currently available information is contradictory. For instance, one study found that the alleged problems associated with hydraulic fracturing are actually related to concerns inherent in all oil and gas drilling operations, such as operator failure, casing issues, and improper cement jobs, all of which can contribute to groundwater contamination. The lack of a scientific consensus is also due to other factors, including unavailability of baseline studies in areas of shale gas development, the presence of naturally occurring natural gas in water wells, and the outdated nature of certain regulations.
Pavillion, Wyoming has recently experienced drastic declines in water quality, with residents complaining about smells, tastes, and other adverse changes in water quality of domestic wells. The Pavillion community is concerned that its contaminated groundwater is the result of hydraulic fracturing activities in the area. The EPA conducted a draft study “to determine the presence of groundwater contamination in the Wind River Formation above the Pavillion gas field and, to the extent possible, identify the source of the contamination.”
Beginning in 2009, EPA collected data from thirty-seven residential wells and two municipal wells to assess potential threats to human health. On December 8, 2011, the EPA released a draft report for public comment. The study found high pH values in groundwater, and elevated levels of chemical compounds including potassium, chloride, synthetic organic compounds, petroleum hydrocarbons, and organic compounds. EPA concluded that hydraulic fracturing activities could be associated with some of its findings; yet, for each finding, EPA noted a variety of potential sources of the contamination, failing to conclusively link the results of its study with hydraulic fracturing activities. The EPA study is limited by the fact that there may always have been a presence of gas in the Pavillion wells. Unfortunately, no baseline data exists to verify past levels of gas flux to the surface or domestic wells. The EPA ultimately concluded that further investigation was needed to determine if compounds associated with hydraulic fracturing migrated into domestic wells.
Despite inconclusive findings, the report’s suggestion that hydraulic fracturing could be a contributing factor to decreased water quality generated strong backlash. Both the Governor of Wyoming and Encana, the company responsible for drilling in Pavillion, strongly criticized the EPA study. Governor Matt Mead stated that EPA employees had “rushed to conclusions that raise specters of cracked earth.” Encana argued that the study ventured beyond the original scope of the investigation.
Shortly after the release of the draft report, ten U.S. Senators requested that EPA conduct a more rigorous scientific review. In March 2012, EPA announced it would consider additional sampling in the Pavillion area and extend the public comment period on the draft study through October 2012.
The EPA has stated that the disclosure of chemical composition of hydraulic fracturing fluids would “decrease the likelihood of impact to ground water and increase public confidence in technology.” However, disclosure rules have yet to contribute to a determination as to whether hydraulic fracturing is, in fact, a cause of groundwater contamination. Because baseline data for water wells is largely unavailable, there is no basis for establishing causation between hydraulic fracturing activities and decreased water quality. Other factors related to well drilling and production, such as human error, improper casing or cementing of a well, or well construction may also be causes of contamination.
Disclosure of chemical components of hydraulic fracturing fluid is valuable, however, in that it provides interested citizens and stakeholders with never-before published information about the hydraulic fracturing process. Although disclosure rules have not produced any information establishing a causal link between hydraulic fracturing and groundwater contamination, the rules are an important effort contributing to public awareness about a politically and environmentally sensitive activity.
* Rachel Degenhardt is a U.S. Regulatory Consultant for Enhesa, Inc. in Washington, D.C. Her work focuses on issues of environment, health, and safety. Ms. Degenhardt divides her time between monitoring U.S. state and federal environmental developments and international oil and gas regulation and policy. Ms. Degenhardt received a Juris Doctor and Masters of Environmental Law and Policy from Vermont Law School in 2009.
 Safe Drinking Water Act §1421(d)(B), 42 U.S.C. § 300h(d)(1)(B)(ii) (Part (B) excludes the underground injection of natural gas and the underground injection of fluids “pursuant to hydraulic fracturing operations related to oil, gas, or geothermal production activities”).
 See Sorell E. Negro, Fracking Wars: Federal, State and Local Conflicts over the Regulation of Natural Gas Activities, Zoning and Planning Law Report, Vol. 35, No. 2. (2012) .
 See Environmental Protection Agency, Statement on Pavillion, Wyoming groundwater investigation, Epa.Gov, (Mar. 8, 2012) (hereinafter “Statement on Pavillion”).
 See Dominic C. DiGuilio et al., Draft: Investigation of Ground Water Contamination Near Pavillion, WY (National Risk Management Research Laboratory 2011) (hereinafter “Draft Report”).
 See id. at xi.
 16 Tex. Admin. Code § 3.29(a)(16) (West Jan. 2, 2012).
 See George P. Mitchell & Mark D. Zoback, supra note 2 (Mitchell suggests that chemicals used are less than 1 percent of the hydraulic fracturing mixture).
 See Kate Galbraith, Texas Fracking Disclosures to Include Water Totals, Texas Tribune (Jan. 16, 2012) ; see also S.J. Res. 202, 2011 Reg. Sess. (Pa. 2011) (Senate Resolution 202 estimates 5,500,000 gallons of water are used per each hydraulically fractured well in the Marcellus Shale).
 EPA notes that the Pavillion area relies on eight groundwater wells for its municipal water supply, as well as eighty domestic wells; see Environmental Protection Agency, Groundwater Investigation, Epa.Gov.
 See Renee Schoof, As Shale Fracking Booms, Environmental Protection Lags, McClatchy Newspapers (Dec. 21, 2011) .
 See id.
 See Railroad Commissioners Adopt One of Nation's Most Comprehensive Hydraulic Fracturing Chemical Disclosure Requirements, Railroad Commission of Texas (Dec. 13, 2011).
 See Chemicals and Public Disclosure, FracFocus. Disclosures must be in the form of Material Safety Data Sheets (MSDS), which are required for certain industrial facilities that manufacture, process, or store hazardous chemicals under the Emergency Planning and Community Right to Know Act (1986). MSDS reports must then be disclosed to persons at the facility as well as to state and local officials.
 H.B. 3328, 82d Leg., (Tex. 2011).
 Anthony B. Cavender, Texas Law Requires Disclosure of Hydraulic Fracturing Chemicals as of February 1, 2012, Pillsbury Winthrop Shaw Pittman LLP (Dec. 21, 2011) .
 A supplier or service company is any company that sells or provides additives used for hydraulic fracturing treatments, or any person that performs hydraulic fracturing treatments.
 Admin. § 3.29(c)(1).
 See Chemicals and Public Disclosure, supra note 19.
 Admin. § 3.29(a)(8).
 Admin. § 3.29(c)(2)(a).
 Admin. § 3.29(c)(2)(A)(i-xiii).
 Casing is typically hollow steel pipe used to line the inside of the drilled hole (wellbore) and is essential for protection of groundwater and aquifers in a drilling operation; see Well Construction and Groundwater Protection, FracFocus, http://fracfocus.org/hydraulic-fracturing-how-it-works/casing.
 See id.
 See Vinson & Elkins, LLP, Texas and Colorado Adopt Far-Reaching Hydraulic Fracturing Chemical Disclosure Rules (Dec. 15, 2011).
 See Energy Institute, The University of Texas at Austin, Study Shows No Evidence of Groundwater Contamination from Hydraulic Fracturing (Feb. 16, 2012).
 See Energy Institute, The University of Texas at Austin, Separating Fact from Fiction in Shale Gas Development, (Feb. 15, 2012).
 See id.
 See id.
 See Groundwater Investigation, supra note 15.
 See Draft Report, supra note 6 at 33.
 See id. at 5.
 See Groundwater Investigation, supra note 15.
 See Draft Report, supra note 6 at 33.
 See id. at 33-39.
 See id. at 39.
 See id.
 See Group: Wyo. Siding with Industry on Fracking Issue, Associated Press (Jan. 18, 2012) .
 See Senators: Raise Bar for Wyoming Frack Study Review, Associated Press (Jan. 23, 2012) .
 See Groundwater Investigation, supra note 15.
 See Draft Report, supra note 6 at 39.
Copyright 2012 Rachel Degenhardt. All rights reserved.
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