Tom Myers' Study on Potential Drinking Water Contamination from Hydraulic Fracturing Should be Viewed with a Skeptical Eye

A May 2, 2012 article in the Charleston Gazette reported that a study commissioned by two environmental groups, and authored by Reno Nevada researcher Tom Myers, concluded that chemicals injected into the ground during the hydraulic fracturing of natural gas wells could migrate into aquifers used as sources of drinking water after 10 years or less.  Scientists and oil and gas industry officials have previously argued that the thick and impermeable nature of the shale formations being fractured, as well as the various layers of rock above the shale, would prevent the migration of these chemicals into aquifers located thousands of feet above.  But the study referenced in the Gazette article apparently suggests that hydraulic fracturing could exacerbate exiting cracks and allow vertical migration of the fracturing fluids into the aquifers.  The study and its conclusions are based upon computer modeling. 

Not surprisingly, proponents of hydraulic fracturing have challenged the methodology of Mr. Myers’ research and the results it produced.  Reportedly, several scientists have called Myers’ approach unsophisticated.  They have also asserted that the study relies on several assumptions that do not accurately reflect what is known about the geology of the Marcellus Shale formation.  Terry Engelder, a purported pro-fracturing geologist from Penn State University, was quoted in the Gazette article wondering aloud whether Mr. Myers really understands anything about what the shale formation looks like. He is critical of Mr. Myers’ use of modeling rather than observations and asserts that hydraulic fracturing wouldn’t be needed to free natural gas from the Marcellus Shale if the migration of fracturing fluids through the shale and other rock formations were as easy as suggested by Mr. Myers. 

I have not had the opportunity read Mr. Myers’ study beyond the information discussed in the Gazette article.  I am also not trained as a geologist, hydrologist, engineer, or the like.  Therefore, I am unable to offer any type of technical critique of the methodology or results of Mr. Myers’ study based upon my own personal knowledge.  I can, however, offer some cautionary thoughts based upon my experience as a practicing litigator.  In most instances where the resolution of some particular issue will have a substantial impact upon the pecuniary, political, personal, or emotional interests of particular groups, those groups and their supporters will typically take rather extreme positions on the issue that are supportive of their interests.  Those positions may often have, or at least appear to have, some validity.  But the actual, hardcore truth typically lies somewhere in the middle.  Accordingly, before forming any conclusions about the dangers of drinking water contamination posed by hydraulic fracturing based solely upon the Myers study, one should take a moment to consider its source. 

The study was bought and paid for by the Park Foundation and the Catskill Mountain Keepers, both environmental organizations that have openly opposed drilling in New York’s portion of the Marcellus Shale (http://stateimpact.npr.org/pennsylvania/2012/04/16/park-foundation-spends-millions-on-anti-drilling-efforts/;http://www.catskillmountainkeeper.org/ourprograms/fracking/).

 

Additionally, Mr. Myers’ “Statement of Qualifications” in his curriculum vitae (“CV”) proudly touts that he is experienced “as a watchdog of government agencies and different industries.”  His listed client base includes mostly environmental and conservation groups like Natural Resource Defense Council, Great Basin Resource Watch, Greater Yellowstone Coalition, Great Basin Water Network, Defenders of Wildlife, Centers for Biological Diversity, McCloud Watershed Council, and Catskill Mountain Keepers.  His CV also reveals that he consults for law firms, which no doubt means that that he earns a substantial amount of money based upon his ability to testify/advocate as an “expert witness” in environmental lawsuits.  It often enhances an expert witness’ ability to get work if he or she routinely and sometimes blindly takes the position of one side of a particular issue or the other.  As West Virginia Supreme Court Justice Menis Ketchum recently pointed out in a multi-million dollar soil contamination case: “Retained expert witnesses are like eggs. You can buy them by the dozen - they are just more expensive.”

Finally, Ken Ward Jr. authored the Gazette article, which was conclusorily and sensationally entitled Drilling Chemicals Could Move Quickly to Aquifers, Study Says.  Mr. Ward is notorious for writing “exposé” type pieces that are highly critical of companies in the energy, natural resources, and extractive industries.  One of his projects is a blog entitled “Coal Tattoo” that is extremely critical of the coal industry.

Once again, it is not the intent of this blog post to take a definitive position on the technical accuracy or credibility of Mr. Myers’ study.  Likewise, it is not the intent of this post to take a position on whether or not hydraulic fracturing poses risks to the environment or the public.  Rather, the intent of this blog post is to point out that one should consider the source of the Myers study and the potential ulterior motives of its author, funders, and promoters before affording it too much weight.  As I wrote above, the truth can often be found somewhere in the middle of the positions taken by groups who have a pecuniary, personal, political, or emotional interest in a contentious issue.  It wouldn’t be surprising to this author if this is the case in regard to many issues surrounding hydraulic fracturing. 

Small Spill of Drilling Mud Leads to Prompt Response by EQT

The Dominion Post, a newspaper out of Morgantown, West Virginia, reported this morning that Equitrans, a subsidiary of Pittsburgh, Pennsylvania based EQT (formerly Equitable Gas Company), spilled approximately 500 gallons of drilling mud into Garrison Fork Creek in Greene County, Pennsylvania between noon and 1 p.m. Wednesday.  While Garrison Fork does not cross into West Virginia, it is a headwater tributary of Dunkard Creek, which meanders back and forth between the West Virginia and Pennsylvania borders.  The spill had nothing to do with the actual drilling of a natural gas well.  Rather, the spill occurred as the result of an "inadvertent return" of drilling mud while drilling for a pipeline underneath the creek. While it is reportedly unknown what caused the inadvertent return, they sometimes occur when the drilling mud bubbles up through a natural fissure in the ground.   


The spill apparently occurred in the course of horizontal directional drilling for an interstate pipeline that will run between Pennsylvania and West Virginia.  According to the Dominion Post article, this particular kind of drilling is expensive, but is more environmentally safe than other forms of drilling.  The process apparently causes no environmental issues 99% of the time.  The purpose of the drilling mud in the process is to keep the drilling hole lubricated and to contain the drill cuttings.  The mud contains small amounts of bentonite clay, which is reportedly also used as an alternative medicine to treat gas and constipation, as well as a colon cleanser.  It appears that the spill was minor and does not pose a significant risk. 


According to the Dominion Post, Equitrans immediately stopped drilling, notified the Pennsylvania Department of Environmental Protection ("DEP"), and began cleaning up and containing the spill.  This incident appears to be an example of an oil and gas company using a relatively environmentally safe, even though more expensive, process and taking immediate action to clean up and contain a rare accidental spill.  Accidents will inevitably happen in drilling for and transporting natural gas, just as they do in any industry.  But the public should be comforted in knowing that, at least in this case, the company was using an environmentally safer process at the expense of additional profits, and took prompt action to remediate the effects of an unexpected accident.

When It Rains, Litigation Pours: Oil and Gas Firms and Their Contractors at Risk for Future Flooding Lawsuits in Connection with Well Pad Construction and Preparation

A fellow West Virginia lawyer representing a coal operator in flood litigation ongoing in southern West Virginia once quipped to me that as long as coal was mined in West Virginia and God kept making it rain, he would never be unemployed.  With the recent boom in oil and gas exploration of the Marcellus Shale formation in West Virginia, lawyers representing the oil and gas industry may be able to make a similar claim.

Anyone who has lived in West Virginia for any period of time knows all too well that the State has a love-hate relationship with energy production.  On the one hand, most West Virginians appreciate that the energy industry, primarily coal mining, creates a large number of well-paying jobs in rural parts of the State where decent jobs are a commodity as precious as gold.  On the other hand, some believe that energy production damages land and property, negatively alters the topography of the State, and has adverse health consequences for residents.  Many of these alleged negative consequences have been litigated in the courts, including a series of recent lawsuits arising from several instances of widespread flooding in southern West Virginia.

Perhaps one of the largest flooding events in recent state history occurred in July of 2001 when floodwaters swept through my home county of McDowell, as well as several other southern West Virginia counties.  Radar estimates of between four and six inches of rain were recorded over parts of a six county area on July 8, 2001.  A report commissioned by the West Virginia Division of forestry (http://www.wvforestry.com/Forests%20and%20Floods.pdf) cites a rain gage in Mullens, West Virginia that recorded 5.7 inches of rain that day.  Two subsequent rain events of July 26^th and July 29^th further increased the flooding.  When all was said and done, the 2001 flood was catastrophic, causing hundreds of millions of dollars in damage and spawning a massive lawsuit primarily targeting large landowners and the timbering and coal industries.  Despite the three unusually large rain events, the lawsuits argued that the activities of the coal and timber industries altered the topography of several watersheds in such a way that they were no longer able to properly drain run-off from the storms. 

Several large-scale flooding events have occurred since the July 2001 floods, which have spawned similar lawsuits.  The most recent large-scale flooding event to result in litigation occurred in Mingo County in May of 2009.  Meteorological data collected by one of the Defendants in the Mingo County litigation allegedly revealed that over seven inches of rain had fallen in parts of Mingo County the week of the May 2009 floods, with over four and one-half inches falling from late in the night on May 8 to the early morning hours of May 9.  (http://dailymail.com/News/201106280826).  Nevertheless, hundreds of Plaintiffs filed lawsuits claiming that the floods were caused by alterations in the topography primarily in connection with highway construction (with incidental coal removal) and coal mining.  While the coal mining/highway construction Defendants were the primary targets, one gas company was named as a Defendant in connection with several traditional gas wells. The Mingo County litigation is still ongoing.

Construction and preparation of Marcellus Shale drill pads, which typically contain multiple well heads, involves large scale excavation and forest clearing.  First, an area of up to several acres must be cleared, leveled, and graded for the actual well pad.  Access roads and pipeline rights-of-way must also be cleared, leveled, and graded.  Massive wastewater impoundments must also be excavated.  Additionally, the production and marketing of natural gas and Natural Gas Liquids (NGLs) involves the construction of other ancillary facilities in the mountains, such as compressor stations, that will often involve the same types of activities.  When (not if) a large rain event causes flooding in a West Virginia watershed where oil and gas exploration of the Marcellus Shale is on-going, these activities are almost sure to make primary, deep pocket targets of the involved oil and gas firms, engineering and geological consulting firms, construction contractors, pipeline contractors, and any others who have any involvement in the design, preparation, construction, or reclamation of Marcellus Shale drilling sites in the affected watersheds.  Accordingly, these firms would be well advised to strictly adhere to their duties under state, local, and federal permits, particularly those involving the control or discharge of wastewater or storm water run-off.  It may also behoove these firms to work together to implement a “good neighbor” policy designed to quickly respond to complaints and offer, within reason, prompt assistance to remedy the concerns of nearby landowners.