Oops! The link to the Pavillion website in the article that follows is no longer operable. For some reason EPA has changed the url to: http://www.epa.gov/region8/superfund/wy/pavillion/. CRE, as regulatory watchdog, is providing this link to the public and it is incumbent upon EPA to also provide it to the public.
Editor’s Note: The Statement below discusses EPA’s decision to apply the “highly influential scientific assessment” designation to a fracking-related study. The EPA study may be found here, http://www.epa.gov/region8/superfund/wy/pavillion/index.htm. The term “highly influential scientific assessment” is from OMB’s “Final Information Quality Bulletin for Peer Review” one of the DQA’s binding implementing documents.
It is important to recognize that the Data (Information) Quality Act provides OMB with statutory authority over the contents of the report. By contrast, Executive Order 12866, 1) does not apply to stand-alone reports; and 2) does not carry the force of law.
The law requires that reports which are designated as “highly influential” scientific assessments adhere to a high level of scrutiny and review. As OMB explained, “This Bulletin also applies stricter minimum requirements for the peer review of highly influential scientific assessments, which are a subset of influential scientific information.” The Bulleting may be found here, http://www.whitehouse.gov/sites/default/files/omb/memoranda/fy2005/m05-03.pdf.
CRE takes this opportunity to remind its readers that the DQA has an extensive legislative history. The 1995 PRA directed OMB to issue rules on dissemination of data. The Appropriations Committee held numerous hearings and other communications demanding that OMB issue the regulations as required by existing law–thus no need for legislative hearings. OMB refused so Congress moved report language into a statute. An article in The Naval Law Review describing the extensive hearings before the Appropriations Committee action may be found here, (see page 97) http://www.thecre.com/pdf/20120301_NavalLawReview.pdf
Senators Portman, Landrieu Push for the Use of Sound Science in EPA Report on Ground Water Contamination in Pavillion, Wyoming
“A false-positive link between hydraulic fracturing and groundwater contamination could form the basis for costly new regulation.”
Washington, DC – U.S. Senators Rob Portman (R-Ohio) and Mary Landrieu (D-LA) today sent a letter to Cass Sunstein, the Administrator of the Office of Information and Regulatory Affairs (OIRA) in the Office of Management and Budget, urging the Administration to ensure that EPA complies with legal standards of scientific integrity as it finalizes a new report on ground water contamination in Pavillion, Wyoming. OIRA is responsible for policing the quality of agency science.
The study is the first time EPA has ever linked groundwater contamination to a well site utilizing hydraulic fracturing, and concerns have been raised about the report’s reliability. Because the results of the study could have major implications on the natural gas industry and on state and federal regulations, the Senators are calling on OIRA to designate EPA’s report as a “highly influential scientific assessment” which will require a more thorough and transparent peer review process.
“A false-positive link between fracturing and groundwater contamination could form the basis for costly new regulation that will do little to protect human health,” they said. “Natural gas development is estimated to contribute hundreds of billions of dollars to the United States economy … There is little doubt that the regulatory response this report could generate may exceed the $500 million threshold.”
The Senators also noted that the EPA’s draft report is “novel” and “precedent-setting,” which could affect their long term study of hydraulic fracturing and noted an interest in the study among other agencies.
The text of the letter is below.
Hon. Cass Sunstein
Administrator, Office of Information and Regulatory Affairs
Office of Management and Budget
725 17th Street, NW
Washington, DC 20503
Dear Administrator Sunstein:
On December 8, 2011, the Environmental Protection Agency (EPA) released a draft report concerning groundwater quality in Pavillion, Wyoming. The report was the first of its kind to link groundwater contamination to a well site using hydraulic fracturing, and legitimate questions have been raised about the report’s reliability. Due to the novelty and potential implications of EPA’s findings, we believe this report is a “highly influential scientific assessment” within the meaning of OMB’s Information Quality Act guidelines, and we respectfully urge that you designate it as such, in consultation with EPA. We are looking to OIRA to help ensure that EPA reaches sound and well-supported scientific conclusions in this study.
The Information Quality Act is designed to ensure that agency science — including studies and data that could be used to justify new regulatory actions — meets a high standard of reliability and objectivity. This is consistent with the President’s recent executive order directing agencies to regulate based only upon the “best available science.”
OMB’s Information Quality Act guidelines direct agencies to take particular care in vetting “highly influential scientific assessments,” principally through use of an independent and transparent peer-review process. An assessment is considered “highly influential” if the agency or the OIRA Administrator determines that the assessment “(i) could have a potential impact of more than $500 million in any year, or; (ii) is novel, controversial, or precedent-setting or has significant interagency interest.”
Under either the quantitative or qualitative prong of this definition, EPA’s recent draft report should be treated as a “highly influential” assessment.
A false-positive link between hydraulic fracturing and groundwater contamination could form the basis for costly new regulation. Natural gas development is estimated to contribute hundreds of billions of dollars to the United States economy. Hydraulic fracturing is used in almost 90% of gas wells drilled today, and 24% of our nation’s electricity was powered by natural gas in 2010. Unwarranted regulation of hydraulic fracturing could have substantial economic impact on the natural gas industry, the consumers and businesses that rely on it, and the millions of jobs that it directly or indirectly supports. There is little doubt that the regulatory response that this report could generate may exceed the $500 million threshold.
Second, the draft report is clearly “novel” and “precedent-setting.” Never before has a federal agency posited a connection between hydraulic fracturing and groundwater contamination. To the contrary, EPA’s comprehensive June 2004 report on hydraulic fracturing — based on a review of more than 200 peer-reviewed publications, other research, and public comments — found no link between hydraulic fracturing and groundwater contamination. The draft report’s novel conclusions could prove precedent-setting, as the EPA is now conducting additional investigations of groundwater contamination using the same methodology.
Finally, this report will doubtless attract “significant interagency interest.” Multiple federal agencies are involved in the President’s Energy Blueprint, and the Department of Energy, the Department of Interior, the Centers for Disease Control and Prevention, and the Securities and Exchange Commission have each either undertaken or expressed interest in further study of hydraulic fracturing or disclosure of chemicals used in hydraulic fracturing.
On a straightforward application of OMB guidelines, EPA’s draft report is clearly a highly influential assessment. We respectfully urge you to ensure that EPA follows OMB guidelines for appropriate vetting of this important study.
Thank you for your attention to this matter.
U.S. Senator Rob Portman
U.S. Senator Mary Landrieu
 EPA Draft Report, “Investigation of Ground Water Contamination near Pavillion, Wyoming” (Dec. 2011).
 Exec. Order 13,563 (Jan. 21, 2011).
 Final Information Quality Bulletin for Peer Review, 70 Fed. Reg. 2664-02 (Jan. 14, 2005).
 Id. at 2675.
 IHS Global Insight Study, “The Economic and Employment Contributions of Shale Gas in the United States” (2009).
 Environmental Protection Agency, “Study of Potential Impacts of Hydraulic Fracturing of Coalbed Methane Wells on Underground Sources of Drinking Water,” Office of Ground Water and Drinking Water Report (June 2004).