On June 20, 2013, the EPA announced that, while standing behind its research that found elevated levels of glycols, alcohols and methane in water samples from deep monitoring wells in Pavillion, Wyoming, it was handing over its investigation into the alleged groundwater contamination to Wyoming state officials, including the Wyoming Department of Environmental Quality (DEQ). The EPA stated that it would not seek peer review or finalize its draft report and would not use the report’s conclusions in any rulemaking because it could not directly connect the chemicals found to hydraulic fracturing activities, indicating that exploration of migration pathways proved inconclusive. The Wyoming DEQ will continue to evaluate the water quality in 14 domestic wells in Pavillion and plans to publish its results by the end of 2014.
The EPA’s withdrawal comes after it spent approximately three years sampling and testing water in the area. In 2010, after well owners in Pavillion complained of objectionable taste and odor in their water, the EPA tested water samples and found that 11 out of 39 wells were polluted with 2-butoxyethanol phosphate which is contained in some drilling fluids. The EPA published a draft report of their findings in December 2011. This report was greatly criticized as being based on limited and questionable data, dismissing reports of historical problems with groundwater quality, and examining fracking as the only contamination source. The EPA eventually delayed peer review of the draft report to allow for additional sampling. In 2012, in cooperation with the EPA, the U.S. Geological Survey (USGS) re-sampled the EPA’s two monitoring wells as well as four private and one public water supply wells. The USGS found that groundwater near the monitoring wells contained synthetic chemicals and high levels of methane. Once again these results were criticized, first by the Wyoming DEQ who complained that the results had not been vetted by state agencies and that the research was conducted without transparency and also by Encana, an operating company with gas wells in the area, who argued that the EPA provided no evidence that fracking or any drilling activity was the direct cause of the water contamination. Shortly after extending the public comment period for the draft report and the USGS’ results until September 30, 2013, the EPA announced its withdrawal from the investigation.
Wyoming Governor Matt Mead is pleased with the state taking over the investigation and with Encana’s contribution of $1.5 million to defray the costs of investigation and to provide interim funding for a nonprofit to provide water to several Pavillion residents. The Pavillion Area Concerned Citizens (PACC), the Powder River Basin Resource Council, and Earthworks (all environmental groups) are critical of the change, believing that state officials will not hold the energy companies accountable.
This article was prepared by Barclay Nicholson (email@example.com or 713.651.3662) from Norton Rose Fulbright’s Energy Practice Group.