EPA’s reversal in Range Resource case a reasonable setback to frack attacks

Special to the Fort Worth Star-Telegram, By Mary Mendoza, Apr. 02, 2012 –

Ending a nearly 18-month saga, the EPA announced Friday that it had withdrawn an order against Range Resources over alleged groundwater contamination in the Barnett Shale.

This brings to a close a local battle reflecting a national controversy being debated in the media over the nature and magnitude of environmental risks associated with the unconventional production of shale gas and oil by hydraulic fracturing.

The battle began in December of 2010, when the Environmental Protection Agency issued an emergency order to Range requiring it to provide alternate potable water supplies to certain residences, conduct an elaborate sampling program in the area, provide methane monitors to area homeowners and develop plans to remediate a contaminated aquifer. In its news release, the EPA trumpeted its order to Range as protection for homeowners against an imminent and substantial threat caused by Range’s operations, even though the order was based upon a sampling of only two wells in the area.

The EPA-Range Resources battle was fought on a number of battlefields. Range took its case to the Texas Railroad Commission, which unanimously concluded that Range was not responsible by pointing to the shallow Strawn Formation as the likely source of the gas in the two wells.

While the EPA sought enforcement of its order in district court, Range challenged it in the 5th U.S. Circuit Court of Appeals. That challenge ultimately led to the EPA’s withdrawal of its order to Range, who in turn in a side letter agreed to conduct a yearlong sampling program on 20 water wells in the vicinity of its Parker County operations and to share data with the EPA.

The EPA’s statement characterizes its retreat as “a step toward a joint effort on the science and safety of energy extraction” and the data from Range’s proposed sampling program as information for “EPA’s scientific inquiry into the potential impacts of energy extraction on drinking water.”

The Range matter raises again a fundamental issue surrounding the amount of data the agency should collect and, more broadly, how sure the agency should be before issuing an emergency order — especially one not affording the recipient an opportunity for pre-enforcement review.

Many have been critical of the EPA for its “leap before you look” approach — issuing an order or reaching a conclusion before collecting and analyzing adequate information.

The agency has come under similar criticism for its recently released draft study attempting to link groundwater issues in Pavillion, Wyo., to hydraulic fracturing operations in a nearby natural gas field. In that case, the EPA has agreed to “clarify” the results through additional testing.

Although the EPA is charged with protecting public health, which includes responding to emergencies, the agency should not use its considerable regulatory and enforcement power to target a company and compel action until it has a reasonable and well-founded factual basis for doing so.

Science, not politics and media hype, should be the driver for agency action.

From an administration that pledged to “restore science to its rightful place,” and from an agency whose efforts are to be based upon the “best available scientific information,” we are still waiting.

Mary Mendoza is the administrative partner in the Austin office of Haynes and Boone, L.L.P. She concentrates on environmental and administrative law.

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