On December 12, Magistrate Judge Mark R. Abel issued an order for the U.S. District Court for the Southern District of Ohio to place five sets of court records under seal for the...read more
Amid Calls for EPA to Reopen Fracking Investigations, States Confirm Contaminated Groundwater
Amid Calls for EPA to Reopen Fracking Investigations, States Confirm Contaminated Groundwater
For over a decade, oil and gas executives and the policy makers who support them have repeated a single bold claim: there has never been a single documented case where fracking contaminated groundwater.
But a blockbuster investigative report by the Associated Press offered up new evidence earlier this month that the shale industry’s keystone environmental claim is simply not true.
Multiple states confirmed that drilling and fracking contaminated groundwater supplies, the investigation found. There have been thousands of complaints from people living near drilling over the past decade, the AP reported, and three out of the four states from which the AP obtained documents confirmed multiple instances where oil and gas companies contaminated groundwater.
Out of the four states the AP obtained documents from, only Texas reported no confirmed oil and gas-related groundwater contamination. But one high-profile incident in Texas has again come under scrutiny, as a report quietly released by the Obama administration on Christmas Eve has called the adequacy of the state’s investigation into question.
On Monday, over 200 environmental groups called on President Obama to reopen the federal investigations into that case and others in Pennsylvania and in Wyoming, and to personally meet with people whose drinking water supplies have been polluted.
“The previously closed EPA investigation into these matters must be re-opened,” said the letter, sent the day before Mr. Obama's State of the Union address. “These three are among a growing number of cases of water contamination linked to drilling and fracking, and a significant and rapidly growing body of scientific evidence showing the harms drilling and fracking pose to public health and the environment.”
In Pennsylvania, where the Marcellus shale has fueled the nation’s most aggressive unconventional gas rush, the number of complaints state regulators received is jaw-dropping. “The AP found that Pennsylvania received 398 complaints in 2013 alleging that oil or natural gas drilling polluted or otherwise affected private water wells, compared with 499 in 2012. …. More than 100 cases of pollution were confirmed over the past five years.”
To put those numbers in perspective, only 5,000 wells have been drilled so far in Pennsylvania. Regulators have projected at least 10 times that number will be drilled in the state over the next two decades.
In total, state regulators had confirmed at least 116 individual cases of water contamination in the past five years in Pennsylvania, Ohio and West Virginia, according to the AP report. The confirmed cases do not include many incidents whose causes regulators are still investigating.
The shale industry’s claim that fracking has never contaminated groundwater has been debunked various ways by multiple venues, including the new Associated Press report. Nonetheless, the line has been a favorite talking point among politicians who support drilling.
For example, Colorado Gov. John Hickenlooper made the following statement in a 2012 radio ad: “In 2008, Colorado passed tough oil and gas rules. Since then, we have not had once instance of groundwater contamination associated with drilling and hydraulic fracturing.”
But according to the Checks and Balances Project, “[a] review of the Colorado Oil and Gas Information System shows that approximately 20 percent of all spills in 2012 resulted in water contamination; 22 of those spills impacted surface water, while 63 impacted groundwater. … In June of this year, Bruce Finley at the Denver Post reported that, according to Colorado Oil and Gas Commission records, 179 oil and gas industry spills occurred in the state, just during the first half of 2013. In 26 of those spills, groundwater was contaminated, and 15 of them directly polluted ponds and creeks.”
If the claim that fracking does not pollute groundwater is so demonstrably false, how can it be so widely repeated? Oil and gas executives like Exxon Mobil’s Rex Tillerson have repeated that line in Congressional hearings, where a deliberately false statement could theoretically lead to a perjury charge.
At its root, the carefully-worded claim is built on a deeply misleading semantic maneuver. Every word in the sentence is carefully chosen. For starters, those who defend it claim that unless one narrow stage of the shale gas extraction process, the hydraulic fracturing process itself, caused a rock fracture that allowed fracking fluid to rise up into aquifers, the contamination doesn’t count.
Did the contamination happen when the shale gas well was being drilled not fracked? Doesn’t count. Did the cement in the wellbore crack during fracking, allowing contaminants to escape and pollute a water well? Doesn’t count, that was a cement problem not a fracking problem. Did an Exxon Mobil subsidiary illegally dump 57,000 gallons of wastewater from a tank onto the ground, leading to felony charges against the company? Did a leaky fracking waste pit pollute a water well and sicken several families? Does not count.
Insisting that contamination doesn’t count unless it happened in one particular way is not only misleading, it makes little sense. Without fracking, drillers could not pump gas from the shale formations that lay below the backyards of millions of Americans. Further, it matters little to the people living nearby what particular piece of equipment drillers were using when their drinking water went bad; it ultimately only matters that it happened because the drillers made a mistake.
Hiding the Ball
But even by the narrow rules of the industry’s misleading semantic game, the claim that fracking has never contaminated groundwater has long been demonstrably false.
In August 2011, a front-page New York Times investigation showed that as early as the 1980’s, the EPA had found instances where the precise problem occurred. “When fracturing the Kaiser gas well on Mr. James Parson’s property, fractures were created allowing migration of fracture fluid from the gas well to Mr. Parson’s water well,” the EPA wrote – describing exactly the type of incident the industry claims never happened.
The EPA added that this sort of contamination was “illustrative” of the hazards of fracking, and that they believed there were other examples but that sealed court records had blocked EPA investigators from accessing documentation of those events.
Restricting the conversation to only documented cases of contamination means that if you can keep the documentation out of the public eye through non-disclosure agreements, it didn’t happen.
But there’s another game that's played when only “documented cases” count: the burden of proof shifts. The industry, despite its extensive resources, doesn't have to show that water contamination that happens proximate to drilling is not their fault. Instead, landowners must prove causation.
The current drilling rush is taking place in an economy where wealth is heavily concentrated in relatively few hands. Pennsylvania’s shale region is also the rust belt, where the retreat of the steel industry and manufacturing jobs left many residents facing declining economic prospects. Landowners often simply do not have the financial resources to pursue legal claims that can require elaborate testing and the testimony of multiple experts in geology and rock mechanics. They often fail to arrange for pre-drilling water tests to prove their water was safe before drilling – and even when they do pay for water testing, the results may later be ruled inadmissible on a technicality.
And in proving that the company contaminated their water, landowners are up against the oil and gas industry’s highly-paid lawyers and their teams of expert witnesses whose job is to create doubt by suggesting that some other problem could possibly have been to blame. Landowners are very often simply out-gunned and out-spent by the oil and gas companies they believe contaminated their drinking water.
Watching the Watchdogs
State regulators, charged with investigating contamination claims on taxpayers’ behalf, have often faced allegations of regulatory capture. A still-unfolding case in Texas shows just how fraught state investigations can become.
Just before Christmas, the EPA’s internal watchdog, the Office of Inspector General, released a stunning report that cast new light onto one of the most controversial groundwater contamination claims in the nation.
In August 2010, a homeowner in Parker County, Texas called the EPA to report that his drinking water had become flammable, launching a multi-agency investigation that turned into a major jurisdictional battle between state and federal environmental regulators. In 2012, driller Range Resources was officially cleared by Texas state environmental regulators, and the EPA had backed down from its investigation of the same incident. At the prompting of drilling supporters in Congress who suspected that EPA was persecuting oil and gas companies, the EPA’s OIG began to investigate whether an alleged anti-fracking agenda had led EPA officials to overstep their authority.
But in a remarkable turn-around, the OIG not only found that the EPA was justified in pursuing the Parker County case, but also that the state’s investigation, conducted by the Railroad Commission of Texas (RRC) which enforces environmental laws in the state, had been insufficient. State officials lacked clear standards for assessing water contamination, the report said.
“When we asked staff/officials of the RRC what sort of evidence RRC required to determine if a direct connection existed, they told us that they did not know,” the EPA Inspector General wrote, as they described the shortcomings of the state's investigation. “They said the RRC has never had a case where they found a direct connection between an oil or gas well and a drinking water well.”
Pressure is mounting for the EPA take over and resume a leading role in investigating the case.
If the EPA finds Range Resources responsible, Parker County will represent yet another instance, like the hundreds the AP found nationwide, where drilling and fracking have contaminated groundwater.
“The EPA’s internal watchdog has confirmed that the EPA was justified in stepping in to protect residents who were and still are in imminent danger,” said Sharon Wilson, Gulf Regional Organizer of Earthworks and a blogger who had emails subpoenaed by Range Resources over her writing on the case. “Now we need an investigation as to whether political corruption caused EPA to withdraw that protection.”
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