Speculative Report Opens PFAS Front Against Fracking
On July 12, 2021, Physicians for Social Responsibility (“PSR”) issued a highly speculative report that raised concerns about a chemical approved by the EPA in 2011 for use in hydraulic fracturing fluid that “might” degrade into the so-called “forever chemicals” PFAS or PFOA. While the report could not identify any specific use of the EPA-approved substance, the report identified over 130 oil and gas companies that have reported using “chemicals that, according to experts and EPA’s list of PFAS substances, are or could be PFAS and/or PFAS precursors” in wells located in states including New Mexico, Texas, and Oklahoma. The report speculates chemicals that might include PFAS/PFOA could be released into the environment by: (1) surface spills; (2) aquifer contamination during fracking; (3) aquifer contamination during disposal of fracking fluids in Class II wells; and (4) the reuse or recycling of produced water.
While the report is largely conjectural, it does signal the intention of groups like PSR to use concerns about PFAS/PFOA to call for bans on drilling, fracking, and disposal of wastewater. Companies using these chemicals in fracking fluids should be aware that future policy shifts could generate liability for the release of PFAS/PFOA in this use sector, particularly because the EPA is considering listing some PFAS/PFOA as hazardous substances under CERCLA.
The report suggests that these EPA-approved chemicals either contain or could degrade into PFAS/PFOA
Fracking fluid is typically 98 to 99 percent water or sand with 0.5 to 2 percent chemical additives. After its use in fracking operations, the fluid is primarily disposed of in Class II Underground Injection Control (“UIC”) wells, which are designed to isolate disposed fluids from underground sources of drinking water. The chemicals at issue in the report are not clearly identified due to the trade secret-related redactions in the EPA’s premanufacture notice and approval records obtained by PSR. Without detailed information from the EPA’s records, the report bases its findings on searches using the chemical’s generic name, “fluorinated acrylic alkylamino copolymer,” and related names. PSR also searched publicly available data in the FracFocus database, which publishes information on the chemical constituents of fracking fluid.
Information from chemical experts consulted for the report state that the chemicals flagged by PSR are all either PFAS or could degrade into PFAS, including “PFOA-like substances.” Two of the chemicals are listed on EPA’s Master List of PFAS Substances: meta-perflurodimethylcyclohexane and perfluoro-1,3-dimethylcycloehexane. Because of the bio-accumulative properties of PFAS, the ease with which these chemicals disperse, and the fact that PFAS do not break down in the environment over time, the report states that even small amounts of the chemicals may contaminate large amounts of water or sediment if released.
The report suggests a number of pathways by which these substances could enter the environment
The EPA concluded in 2011 that accidental releases of fracking fluid would be negligible. The PSR report calls this assumption “unrealistic” and suggests at least four potential release pathways. One of the chemists consulted noted the potential for contamination “if [fracking fluids containing PFAS] were to spill on the surface,” presumably by accident. The report speculates that groundwater contamination could occur when fluids are injected during the first stage of drilling, before casing seals the well from any surrounding aquifers. The report also speculates that leaks from Class II wells could result in aquifer contamination. Finally, the report notes potential contamination pathways arising from the reuse of fracking wastewater, which may in some areas be released into waterways, re-used on roads to melt ice or suppress dust, or as irrigation for crops.
To this last point, the presence of PFAS in fracking wastewater could have implications for EPA’s efforts to find beneficial reuses for this water. EPA has been examining these potential uses since 2018, when it began to seek public input on the matter from states, tribes, and industry. While many commentors were supportive of wastewater management options beyond Class II wells, the primary concern raised by states and tribes was the chemistry of the wastewater, which is often not publicly disclosed. Some in the fracking industry expressed concern about exposing themselves to potential liabilities if they disposed of their wastewater by another means than the injection wells.
EPA is currently contemplating whether to designate PFOS and PFOA as hazardous substances under CERCLA. Depending on the exact chemical identity of the “PFOA-like” substances that PSR flagged, or if EPA designates a broader range of PFAS as hazardous substances, wastewater containing these substances could be implicated by the designation. Because CERCLA imposes strict liability regardless of the legality of the conduct at the time chemicals are disposed of, beneficial reuses of fracking fluid that contained these “PFOA-like” substances could possibly expose a wide range of parties responsible for the PFAS/PFOA to strict liability.
Ultimately, the PSR report raises more uncertainties than answers, with the exact identities of the chemicals unconfirmed and their possible health risks unknown. Still, it is a reminder that PFAS regulation could have impacts on many sectors, not just those that manufacture PFAS chemicals or use them in large amounts. Industries and companies across all potentially affected sectors should consider evaluating their potential liability exposure and keep up to date with regulatory developments in this area, as many federal and state laws related to PFAS are currently in development.
This information is provided by Vinson & Elkins LLP for educational and informational purposes only and is not intended, nor should it be construed, as legal advice.