Assessment shows hydraulic fracturing activities have not led to widespread, systemic impacts to drinking water resources and identifies important vulnerabilities to drinking water resources.

WASHINGTON—The Environmental Protection Agency (EPA) is releasing a draft assessment today on the potential impacts of hydraulic fracturing activities on drinking water resources in the United States. The assessment, done at the request of Congress, shows that while hydraulic fracturing activities  in the U.S. are carried out in a way that have not led to widespread, systemic impacts on drinking water resources, there are potential vulnerabilities in the water lifecycle that could impact drinking water. The assessment follows the water used for hydraulic fracturing from water acquisition, chemical mixing at the well pad site, well injection of fracking fluids, the collection of hydraulic fracturing wastewater (including flowback and produced water), and wastewater treatment and disposal [http://www2.epa.gov/hfstudy/hydraulic-fracturing-water-cycle].

“EPA’s draft assessment will give state regulators, tribes and local communities and industry around the country a critical resource to identify how best to protect public health and their drinking water resources,” said Dr. Thomas A. Burke, EPA’s Science Advisor and Deputy Assistant Administrator of EPA’s Office of Research and Development. “It is the most complete compilation of scientific data to date, including over 950 sources of information, published papers, numerous technical reports, information from stakeholders and peer-reviewed EPA scientific reports.”

EPA’s review of data sources available to the agency found specific instances where well integrity and waste water management related to hydraulic fracturing activities impacted drinking water resources, but they were small compared to the large number of hydraulically fractured wells across the country. The report provides valuable information about potential vulnerabilities, some of which are not unique to hydraulic fracturing, to drinking water resources, but was not designed to be a list of documented impacts.

These vulnerabilities to drinking water resources include:

water withdrawals in areas with low water availability;

hydraulic fracturing conducted directly into formations containing drinking water resources;

inadequately cased or cemented wells resulting in below ground migration of gases and liquids;

inadequately treated wastewater discharged into drinking water resources;

and spills of hydraulic fluids and hydraulic fracturing wastewater, including flowback and produced water.

Also released today were nine peer-reviewed EPA scientific reports (www.epa.gov/hfstudy).  These reports were a part of EPA’s overall hydraulic fracturing drinking water study and contributed to the findings outlined in the draft assessment.   Over 20 peer-reviewed articles or reports were published as part of this study [http://www2.epa.gov/hfstudy/published-scientific-papers].

States play a primary role in regulating most natural gas and oil development. EPA’s authority is limited by statutory or regulatory exemptions under the Clean Water Act, Safe Drinking Water Act, the Comprehensive Environmental Response, Compensation and Liability Act, and the Resource Conservation and Recovery Act. Where EPA’s exemptions exist, states may have authority to regulate unconventional oil and gas extraction activities under their own state laws.

EPA’s draft assessment benefited from extensive stakeholder engagement conducted across the country with states, tribes, industry, non-governmental organizations, the scientific community and the public to ensure that the draft assessment reflects current practices in hydraulic fracturing and utilizes all data and information available to the agency.

The study will be finalized after review by the Science Advisory Board and public review and comment. The Federal Register Notice with information on the SAB review and how to comment on the draft assessment will be published on Friday June 5, 2015.

Governor Mike Pence will offer remarks at Indianapolis Ten Point Coalition’s 3^rd Annual Community First Prayer Breakfast, which supports the Youth Jobs Indy program. Details below.

Friday, June 5:

7:45 a.m. EDT – Governor Pence to offer remarks at Community First Prayer Breakfast

*Media are welcome to attend.

Banker’s Life Fieldhouse, 125 S. Pennsylvania Street, Indianapolis

By, TheIndianaLawyer.com

The Indiana Supreme Court ruled 4-1 in favor of an adoption agency that it did not have any duties with respect to the putative father registry in excess of statutory requirements. A couple who adopted a baby through the agency – only later to have her removed from their care after the biological father contested the adoption – sued the agency alleging negligence.

Jason and Justina Kramer entered a contract with Catholic Charities in order to adopt a child. The agency told the Kramers that they had the right to obtain information about the risks and benefits of the services they will receive and warned them that even if a mother puts her child up for adoption, a father could still claim custody. Catholic Charities had a statutory obligation to check the putative father registry at least one day after the close of the father’s 30-day deadline to register, which is triggered by the baby’s birth date. Catholic Charities also had an internal unwritten practice of checking the registry once after intake of the birthmother as a client and again right before placement of the child with a potential adoptive family.

A mother agreed to have the Kramers adopt her baby born May 1, 2010. Catholic Charities asked the Indiana Department of Health to check on May 25 and June 1 whether anyone registered as the putative father of the baby girl. A first search showed no potential fathers; a second search showed R.M. registered as the putative father of the baby on April 27. No one can explain why that registration did not show up on the first search.

The Kramers continued with the adoption despite learning of R.M.’s registration. R.M. later contested the adoption and the baby was placed in his custody eight months later, after paterntity was established.

The Kramers alleged Catholic Charities was negligent because it should have checked the registry prior to placing the baby with them and should have notified the couple of its failure. The agency moved for summary judgment, which the trial court granted. The Court of Appeals, in a split decision, reversed.

Justice Mark Massa, writing for the majority, affirmed the trial court in Jason and Justina Kramer v. Catholic Charities of the Diocese of Fort Wayne-South Bend, Inc., 71S03-1506-CT-350, which presented at least two issues of first impression for the court.

The Kramers argued that irrespective of the statutory obligations, the adoption agency had a duty to check the registry prior to the baby’s placement. But Massa pointed out they did not cite any authority or evidence beyond Catholic Charities’ informal practice of conducting such pre-placement checks. He also wrote that Catholic Charities, based on its agreement with the Kramers, did not have a duty to disclose its failure to conduct a pre-placement check of the registry.

The Kramers’ argument that had Catholic Charities done a pre-placement check and discovered R.M.’s adoption, the couple would never havea accepted placement or pursed adoption, does favor the imposition of a duty. But forcing adoption agencies to disclose every instance of compliance or non-compliance with their internal procedures could impose significant administrative costs and diminish agencies’ collective ability to perform this public service, Massa continued.

The Kramers failed to show that Catholic Charities had any duties with respect to the putative father registry in excess of statutory requirements, the majority held.

Justice Brent Dickson dissented, writing that Catholic Charities did not affirmatively demonstrate that its exercise of reasonable care to the Kramers under the circumstances is established by undisputed facts. He believed the negligence claim should proceed to trial.