Activists Fear Obama Order May Hamper Some EPA Fracking Policies

Author(s): Bridget DiCosmo

Source: Inside EPA's Water Policy Report , Vol. 21, No. 9 (April 23, 2012), pp. 32-33
Published by: Inside Washington Publishers

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 Hydraulic Fracturing

Activists Fear Obama Order May Hamper Some EPA Fracking Policies
President Obama’s recent executive order creating a broad interagency group to review federal research and rules for
hydraulic fracturing is getting mixed reviews from environmentalists, with some concerned that it may hinder EPA’s
ability to craft timely regulations and others tentatively backing the move because it forces a broader look at fracking.
Among the EPA measures that activists fear may be at risk of delay are a pending Safe Drinking Water Act guidance
for permitting fracking operations that use diesel fuels and agency studies on fracking, including its investigation of
groundwater contamination in Pavillion, WY.
“It depends on what the [interagency] oversight group does under the guise of coordination — are they going to slow
down these studies?” one environmentalist says.
In addition to concerns on EPA rules, activists are also concerned that the order will undermine coordination require-
ments detailed in an April 18 memorandum of understanding (MOU) between EPA and the departments of Interior (DOI)
and Energy (DOE) outlining how the agencies plan to align their proposed fiscal year 2013 research on environmental
and safety issues related to fracking.
Executive order (EO) 13605, which the White House issued April 13, establishes a new interagency working group
consisting of deputy heads of 13 federal entities, including EPA, DOI, DOE, the departments of Defense, Health and
Human Services and Commerce, and several White House offices, including the Office of Management & Budget, Office
of Science and Technology Policy and Council on Environmental Quality. Relevant documents are available on
InsideEPA.com. See page 2 for details. (Doc ID: 2396275)
The order mandates that the working group begin coordinating agency policy activities to ensure their “efficient and
effective operation,” facilitate data sharing between the agencies and engage in long-term planning with respect to
research, infrastructure development and natural resource assessments.
The order acknowledges “close interagency coordination” is crucial for effective implementation of federal over-
sight, given the many activities governing fracking currently underway at different agencies.
But the order also reaffirms that the federal government has an important oversight role in natural gas regulation —
refuting long-standing arguments from Republican lawmakers and industry officials that states are in a better position to
govern fracking activities.
The order says the role of federal agencies includes “regulating oil and gas activities on public and Indian trust lands,
encouraging greater use of natural gas in transportation, supporting research and development aimed at improving the
safety of natural gas development and transportation activities and setting sensible, cost-effective public health and
environmental standards to implement federal law and augment state safeguards.”
The order appears to respond to numerous requests by the American Petroleum Institute (API) urging the White
House to craft a more streamlined process to ensure fracking research and rules are not duplicative or unnecessary. “We
have called on the White House to rein in these uncoordinated activities to avoid unnecessary and overlapping federal
regulatory efforts and are pleased to see forward progress,” API President Jack Gerard said in an April 13 statement.
Other industry groups were also quick to voice their support, though several also stressed that one of the goals of the
working group should be to highlight the effectiveness of state regulations to maintain their predominant role as the main
regulators of natural gas drilling, not the federal government. America’s Natural Gas Alliance said in an April 13 state-
ment that it supports the order, particularly the language acknowledging that states are “primary regulators” of the industry.
While the White House is yet to release detailed plans on how it will implement the order and the new inter-
agency group it intends to create, some activists are concerned that the new coordination requirements will constrain
agencies’ ability to promulgate rules and conduct rigorous oversight to ensure that fracking does not harm groundwater or
cause other environmental impacts. “If [the interagency group] ends up bottlenecking that, we’ll be very concerned,”
another activist says.
But a third activist says the order could be positive because it reflects that fracking oversight has become a priority of
this administration and that it is necessary to “take a step back and have a broad-scale look” at natural gas development.
That source adds that they don’t see the order hindering agency policies or studies.
Another environmentalist says issuance of the order was clearly a move aimed at placating industry concerns about
increasing federal oversight and that it is “not clear it’s anything more than a rhetorical response.”
The first environmentalist says that while there is some concern that the new working group could ultimately slow
down fracking policies, its effect on ongoing agency research, such as the Pavillion, WY study or EPA’s massive, con-
gressionally directed study looking at drinking water impacts of fracking may be of even greater concern.
“There’s some opportunity here, but I’m skeptical — will politics trump good science?” the source asks.
Of further concern to environmentalists is the just-issued MOU between EPA, DOE and DOI governing their FY13
research.
The agencies generally detailed their plans in their FY13 budget requests for millions of dollars in new funds to
research a host of issues related to the effects of fracking, including seismicity, environmental quality and other

32 WATER POLICY REPORT - www.InsideEPA.com - April 23, 2012

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 Hydraulic Fracturing

issues. But the agencies had not yet released an MOU detailing how they would coordinate their research.
According to the MOU, the agencies establish a plan for ensuring that each is focused on fracking studies that do not
overlap with one another while allowing for collaboration and emphasizing the core competencies of each agency. For
example, EPA’s work will focus on human health risks, water quality impacts and air emissions associated with fracking,
while DOE’s research is more centered on wellbore integrity studies and technologies aimed at reducing environmental
impacts. The U.S. Geological Survey, (USGS), part of DOI, will focus on ecological risks, land use and wildlife habitat
issues, hydrology concerns and seismic risks.
The MOU forms a steering committee that will be drafting a research plan within the next six months and taking
public comment, and will meet on a quarterly basis to facilitate study efforts.
EPA, in an April 13 press release, says the MOU “exemplifies the cross-government coordination required under
President Obama’s executive order. This new partnership will help coordinate current and future research and scientific
studies undertaken by the U.S. Department of Energy, the U.S. Environmental Protection Agency and the U.S. Depart-
ment of the Interior — better positioning the Obama Administration to ensure that continued expansion of natural gas and
oil production happens safely and responsibly as part of an all-of-the-above approach to American energy in which
science plays a guiding and critical role.”
But the second environmentalist says it is “unclear” what impact, if any, the executive order would have on the plans
outlined in the MOU, adding that the order raises the possibility that EPA, DOE and DOI will now have to consult with a
broader group of agencies on the studies described in the MOU. — Bridget DiCosmo

EPA Wins Additional Delay For Revising Diesel Fracking Permitting Policy
EPA has won industry’s approval to again extend — by 30 days — a deadline in a settlement agreement with industry
for amending its permitting policies for hydraulic fracturing operations using diesel fuels, with sources suggesting the
delay could be due to EPA’s struggles in how to define “diesel fuel” in a planned guidance on the policies.
According to an April 9 order filed with the U.S. Court of Appeals for the District of Columbia Circuit, EPA and oil
and gas industry groups have agreed to extend until May 9 a court deadline for the agency to modify the 2010 policies,
outlined in statements on EPA’s website. The delay comes after the agency and industry recently informally agreed to give
EPA more time after it missed informal March 15 and April 9 deadlines for issuing the policy changes. The document is
available on InsideEPA.com. See page 2 for details. (Doc ID: 2395427)
The industry plaintiffs in the suit over the website policy statements have until May 9 to file a motion for how to
govern further proceedings in the suit if EPA does not comply with the terms of the settlement, the order says.
EPA is said to be timing the revised policy changes to coincide with the release of its long-awaited pending guidance
on how regulators should permit diesel fracking injections. That guidance was sent for White House Office of Manage-
ment & Budget (OMB) pre-publication review Dec. 14, but that review appears stalled.
The policy changes on EPA’s website will resolve industry’s lawsuit, Independent Petroleum Association of America
(IPAA), et al. v. EPA, in which industry groups sued over the website statements posted in 2010.
The website says that Safe Drinking Water Act (SDWA) permits are required for fracking operations that use diesel
fuels — the only type of fracking which EPA has authority to regulate after a 2005 energy law limited its ability to permit
fracking under SDWA. Industry sued over the language, claiming that while the agency had general authority under the
SDWA to subject those operations to permitting requirements, EPA had to undertake a formal rulemaking to impose
specific SDWA permitting requirements — which it sought to do by saying that Class II rules should apply.
Observers have said that the settlement and pending changes could curtail citizen and regulatory enforcement actions
for drilling companies’ unpermitted past uses of diesel fuel in fracking.
EPA agreed as part of the Feb. 23 settlement in IPAA to scrap statements saying that diesel fracking should be
considered a Class II activity under SDWA and instead defer to its pending guidance.
Sources say the draft guidance appears to be stalled at OMB, given that White House review of the document has
now extended beyond the typical 90-day review period.
An industry source says that one issue likely to be causing the delays is that of how the agency has defined “diesel
fuel” in the draft document — a hotly contested issue that could ultimately determine how many types of fracking
operations EPA has authority to regulate under SDWA. “It’s been the biggest issue with this whole thing,” the source says.
Environmentalists and Democrats had urged EPA to craft a broad definition of diesel fuels to be sure to catch
benzene, toluene, ethylbenzene and xylene chemicals — so-called BTEX compounds found in diesel which drove
Congress to preserve the agency’s authority to regulate diesel use in fracking.
Industry and Republican lawmakers have argued that EPA should restrict the definition to a narrow scope of diesel
fuel products identified by their chemical abstract service numbers, as SDWA says “diesel fuels,” not diesel compounds,
and therefore a broader definition would overreach the scope of the drinking water law. — Bridget DiCosmo

WATER POLICY REPORT - www.InsideEPA.com - April 23, 2012 33

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