Source: http://www.lexology.com, June 25, 2013
By: Wayne J. D’Angelo and Andrew M. McNamee, Kelley Drye & Warren LLP
The Environmental Protection Agency has abandoned its investigation into alleged groundwater contamination from hydraulic fracturing operations near Pavillion, Wyoming. The investigation will be continued by the state, funded by a $1.5 million grant from Encana Oil & Gas, Inc., the company that had been accused of contaminating the water. The agency will provide support to the state in its efforts to continue the investigation, but it will not finalize its study, seek peer review of its draft study, or rely on the conclusions of its draft report. The December 2011 report tentatively concluded that pollutants in the aquifer used for Pavillion’s drinking water likely came from hydraulic fracturing operations intended to draw gas from deeper geologic formations.
The Agency has been universally criticized for conducting an exceptionally flawed investigation and for publically releasing a draft report that was based on the flawed investigation, was not peer-reviewed, and which appeared to many to be drafted to fit a favored conclusion about the source of the contamination at Pavillion. As such, in many ways, the decision to abandon the probe was welcomed by many. Sens. Vitter (R-LA) and Inhofe (R-OK) commended the abandonment of the investigation, asserting that it lacked scientific credibility, and was driven by a political agenda to regulate hydraulic fracturing. Rep. Stewart (R-UT) issued a statement that he was glad the EPA “conceded that state-level expertise and capabilities are most appropriate for overseeing safe and responsible energy production.” Indeed, states are the primary regulators of oil and gas activity, including hydraulic fracturing. EPA’s missteps in the Pavillion investigation seem to suggest that, in addition to being the proper regulators of hydraulic fracturing activities, state entities may be best suited for investigation and enforcement of contamination allegedly caused by hydraulic fracturing.
The Wyoming Oil and Gas Conservation Commission and the Wyoming Department of Environmental Quality will take control of the investigation. They are expected to conclude the investigation and release a final report by September 30, 2014.