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GAO Finds Fault With EPA Oversight of Class II Injection Wells

The safeguards enacted by the U.S. Environmental Protection Agency (EPA) and state regulators to protect underground sources of drinking water from contamination by Class II injection wells don't adequately address emerging threats like seismic activity, the Government Accountability Office (GAO) said.

In a 103-page report made public on Monday, the GAO added that the federal agency is providing ineffective regulatory oversight of Class II wells, and has been unable to formulate a more efficient method for evaluating regulations at the state level. The EPA has also been compiling a large amount of data on Class II wells, but the GAO said the information obtained is unreliable.

EPA regulates six classes of underground injection wells, including Class II, which is used to inject brine and other fluids associated with oil and natural gas production. Class II wells are regulated by the Underground Injection Control (UIC) program, which is overseen by the EPA under the terms of the federal Safe Drinking Water Act (SDWA).

The GAO said that between December 2012 and June 2014, it analyzed Class II regulatory programs in eight states from six shale regions in the United States: California, Colorado, Kentucky, North Dakota, Ohio, Oklahoma, Pennsylvania and Texas. Two states, Kentucky and Pennsylvania, had enacted minimum federal safeguards to protect drinking water.

"Overall, EPA and state program officials reported that these safeguards are protective, resulting in few known incidents of contamination," the GAO said. "However, the safeguards do not address emerging underground injection risks, such as seismic activity and overly high pressure in geologic formations leading to surface outbreaks of fluids.

"EPA officials said they manage these risks on a state-by-state basis, and some states have additional safeguards to address them. EPA has tasked its UIC technical workgroup with reviewing induced seismicity associated with injection wells and possible safeguards, but it does not plan reviews of other emerging risks, such as high pressure in formations. Without reviews of these risks, Class II programs may not have the information necessary to fully protect underground drinking water."

The GAO said the EPA has not consistently conducted annual on-site state program evaluations due to its limited resources. The agency is also required to approve and incorporate state requirements for Class II wells, as well as any changes to them, into federal regulations through a rulemaking.

"EPA officials told us that incorporating changes into federal regulations, particularly through the rulemaking process, was burdensome and time-consuming," the GAO said. "Several EPA officials told us that reviewing, approving, and then incorporating changes into federal regulations through rulemaking is lengthy and resource intensive. As a result, the agency has not conducted rulemakings to keep pace with the changes that are occurring in state programs.

"The agency has discretion under the SDWA to change its UIC regulations to revise or eliminate the requirement for incorporating state program changes into federal regulations, but, according to officials, has not evaluated alternatives to its current approval process...Until EPA evaluates whether this requirement can be revised or eliminated to make the review, approval, and incorporation of state program changes more efficient, the process for incorporating future state program changes will remain burdensome and time-consuming."

The GAO added that although the EPA collects large amounts of data on Class II wells, the data is incomplete and inadequate for reporting to Congress, the public, or anyone interested in establishing a nationwide program to regulate Class II wells.

"According to EPA's guidance, the agency will establish a tracking and evaluation system for the program, and provide the Congress and other groups with information to assess the program," the GAO said. "To this end, the agency collects data on Class II programs across the country using required activity reports from state programs, and, to a lesser extent, a web-based performance management database. Our review of the data shows that it is not sufficiently complete or comparable to report on the program at a national level."

Among the GAO's recommendations, it said EPA Administrator Gina McCarthy should order the UIC Technical Working Group to review emerging risks -- including seismic activity and high-pressure injections -- and compile information on the use of diesel fuels in hydraulic fracturing (fracking). It also recommended that McCarthy evaluate and revise, if necessary, the UIC program's guidance on effective oversight.

On ensuring that the EPA maintains enforcement authority of state program requirements, the GAO recommended that McCarthy "conduct a rulemaking to incorporate state program requirements, and changes to state program requirements, into federal regulations...at the same time, evaluate and consider alternative processes to more efficiently incorporate future changes to state program requirements into federal regulations without a rulemaking."

Last week, the Inspector General of the EPA reported the agency has been doing a lackluster job of addressing methane emissions from natural gas distribution pipelines (see Daily GPI, July 25). The report added that more than $192 million in natural gas had been lost in 2011 through pipeline leaks.

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