December 30, 2013
What the EPA Hoped You'd Miss This Holiday Season.....

Wondering if you missed anything while busy with the holidays? Well, the EPA was sure hoping you would! You may recall that the EPA has engaged in a number of flip-flops in its attempts to respond to allegations that gas well drilling may lead to methane contamination of nearby water wells.  In fact, the EPA's history of retreating from its scientific conclusions about water contamination from fracking in response to the political pressure brought to bear by the petroleum interests that have a stranglehold on our government dates back to at least 2004. But while the EPA's files are replete with politically based abandonment of investigations, notably in Dimock, Pennsylvania and Pavillion, Wyoming, the outcry over the EPA's flip flop on water contamination from fracking activities in Parker County, Texas reached new heights (or new lows).


If you haven't seen Gasland II, have missed the viral video of a Texas homeowner lighting the water from his well on fire, or haven't read any of Texas Sharon's blog posts on the dispute, then you may not be up to speed on the Parker County, Texas battle between the homeowner on the one hand and Range Resources AND the Texas Railroad Commission (RRC) AND (now) the EPA on the other hand.



A homeowner first drilled his domestic water well in 2005. In 2009 Range Resources fracked two wells within 2,300 feet of his well. Within four months, the homeowner's water well was newly bubbling, spurting and was of degraded character. The homeowner ultimately connected the water quality problems with the nearby gas drilling, and filed a citizen's complained with the RRC. The RRC investigated but was not, in the homeowners's (and ultimately the EPA's estimation), aggressively pursuing the case. So when the homeowner lodged a complaint with the EPA, the EPA's response was rapid and decisive.


Within a few months after beginning its investigation, the EPA concluded the methane contamination posed a serious risk of "imminent substantial endangerment" to the homeowner and issued an emergency order instructing Range Resource to conduct a full investigation of the methane migration problem and to provide replacement water to the homeowner. 



The RRC and Range Resources responded just as aggressively, with the RRC giving notice that it would be conducting its own hearing and investigation the following month. The EPA responded by filing an enforcement action in a Texas federal court. Range Resources responded by filing another case in the Texas federal appellate court seeking a review of the propriety of the endangerment order. The RRC issued its findings two months later, and completely exonerated Range Resources. After the first hearings in each of the two federal cases had been held, the EPA decided to withdraw the emergency order and dismiss its enforcement lawsuit.



The EPA's conduct in that investigation - issuing an emergency order, filing an enforcement action, and then withdrawing both four months later - led not only to oil interests represented by six Republic senators, but also to over 80 environmental groups calling for an investigation into the EPA's decision making process by the United States Justice Department, Office of the Inspector General. 




The Inspector General (IG) responded to these calls and conducted an investigation into the propriety of the EPA's decisions-making process in the Parker County case, and the results of that investigation were finalized on December 20, 2013.  The Obama Administration waited until noon on December 24, 2013 to announce the release the report to the public.


The conclusions of that report have been touted both as backing the EPA:

"Report backs EPA order on water contamination in Parker County" (Fort Worth Star Telegram)  

"Inspector general finds EPA followed protocol in fracking case" (Dallas News)

"EPA says it was right about its Range Resources investigation" (Dallas Observer)


and as faulting the EPA and demanding additional testing:

"EPA report could reopen Texas water contamination case" (Huffington Post)

"EPA probe demands more water testing in Texas" (Forth Worth Star Telegram)

Feds followed procedures in Range case, though questions remain" (Environment & Energy Publishing)




All of which left us looking for answers and trying to see through the haze of all the spinning.


Here is what the report actually said:


As to the original EPA Order

"The EPA was justified in concluding that the contamination in the residential wells constituted an ISE [Imminent and Substantial Endangerment] based on the data the EPA collected."


 "The information that the EPA had in its possession was sufficient for it to conclude that the gas production well was the most likely contributor to the contaminator of the aquifer that led to the ISE."


As to the withdrawal of the Order and "settlement" with Range

"EPA leadership determined in 2012 that although they still believed the statute supported the EPA's actions, the case with Range Resources required more resources than anticipated because the judge had called for the review and consideration of additional evidence not ordinarily included in such cases....Because the court was requiring additional evidence beyond that provided in the EPA's administrative record, EPA officials said they would have to gather additional evidence and expert witness testimony at additional cost. As a result [EPA] officials said that [it] was not an efficient use of agency resources."


"Another reason for withdrawing the emergency order was in that in 2012 the EPA had begun discussions with Range Resources that resulted in a non-binding agreement [whereby]... Range Resources agreed to participate in the EPA's national study of drinking water effects from hydraulic fracturing once the EPA withdrew the order."


As to the need for the EPA to not just walk away from the case and to properly oversee future water testing

"However, the agreement for testing did not include other elements of the original emergency order.....such as testing the soil in the area of the contamination, conducting indoor air monitoring, conducting a geographical survey and defining contamination pathways. [EPA officials] accepted this partial solution because Range Resources would not voluntarily conduct these elements of the order, and they judged that the EPA could not spare the resources to continue enforcement through the courts."


"However, the EPA did not review or approve Range Resources' sampling protocol, nor did it review or approve the data collection and analytical methods during the course of the study."

It is important for the EPA to oversee the sampling program "to ensure the validity and reliability of the data that the EPA is using to evaluate whether additional contamination of drinking water sources exists."


"Although EPA officials believe that current residents are not presently at risk, the overall risk faced by current and future area residents has not been determined. We believe the EPA needs to implement cost-effective steps to better gauge the risk and document and disseminate its findings to affected residents. The EPA should ... conduct its own sampling at any locations it suspects may be contaminated that are not contained in Range Resources' sample."



So while that all may or may not seem like a "fair and balanced" assessment of the EPA's actions, that begs the question: What does all of this mean?


Here is our takeaway

The EPA has neither the financial resources, the scientific expertise nor sufficient federal legal authority to independently and successfully prosecute a methane migration contamination case. The EPA appears to have started out in Dimock, Pavillion and Parker County with the expectation that the EPA could bring the force of the federal government to bear on oil and gas companies and the uncooperative state regulators. Eventually, the reality of its lack of resources and staff, lack of scientific expertise, and weak federal laws caused the EPA to reverse course and opt for a "joint effort" with industry "on the science and safety of energy extraction." (EPA Press Release, March 29, 2012)


The best hope for proof that methane contamination in water wells is resulting from failed, incomplete, or deficient well casings will be if individuals with sufficient financial resources, scientists with expert credentials across a wide variety of fields, and talented litigators combine their efforts with a singular focus to meet the heavy burden of proof that must be met to refute agency determinations that either there is no contamination in the first place and if there is the contamination is "naturally occurring."


Watch for future updates where we will share our thoughts on the legal position of the EPA in this matter of (generally) state concern, why private lawsuits are likely to be more successful, and how we might develop adequate scientific evidence in these cases (which goes well beyond rock solid baseline testing).


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