Thursday, April 4, 2013

The Hagy Story: Loopholes Shield Fracking Industry While Families Pay the Price -- West Virginia judge Joseph R. Goodwin dismisses lawsuit

by Laurel Peltier, Eco Watch, February 27, 2013

In 1989, Dusty and Tamera Hagy bought 81 rural acres in Jackson County, West Virginia. Twenty-one years later, the Hagys sued four natural gas drilling firms alleging the natural gas wells drilled on their property in 2008 contaminated their drinking water and caused physical harm.
The Hagys’ water contamination lawsuit demonstrates how the natural gas industry has built a near-perfect “federal legal exemption’s framework” that when combined with lax or absent state regulations and the legal system’s high costs, inherently approves of citizen collateral damage with no restitution. 
The consequence of this framework is that the burden of proof is placed on plaintiffs who, at best, are forced to settle with natural gas companies, thereby sealing the case from public scrutiny, scientific examination and legal precedence. Because the Hagys didn’t sign a non-disclosure agreement with the natural gas companies involved, their legal case gives the public a rare window into how fracking lawsuits play out in reality.
Natural gas is a critical resource. Fifty percent of American residences use natural gas. Natural gas is seen by some as a bridge fuel essential to the U.S.’s strategy to gain energy independence from foreign oil imports. Yet we must ask ourselves: Is the current fracking system one we should support? Are changes needed to level the playing field for all parties involved in fracking? Can fracking be done safely?
The land man cometh
Dusty and Tamera Hagy unwittingly fell into the fracking trap the day they bought their land in 1989.
“We loved our 81-acre property, it was our life. We had paid off the mortgage and spent a lot of money fixing the place up. We raised our two boys there, buried our animals there and were  planning to give our boys some property,” said Dusty Hagy.
Mineral rights, fracking chemicals and natural gas federal environmental laws were all Greek to the Hagy family before a pleasant Equitable Production Company representative visited the couple in October 2007.
Equitable Production Company’s representative informed the Hagys that four natural gas wells were soon to be drilled on their property about 1,000 feet up the hill from their home.  
In West Virginia, surface land ownership is separate from mineral rights. Mineral rights are the portion of the profits received from minerals extracted from land. Another party owns the Hagy property’s mineral rights which were were granted hundreds of years ago. The Hagy family receives no gas royalties and didn’t sign a formal gas leasing contract, though, they did sign plenty of “papers” believing they did not have a choice.  
Fracking starts – trucks, noise, explosions, and chemicals
On Nov. 11, 2007, trucks, back hoes, tree cutters and workers converged on the Hagy property uphill and upstream from their home. Equitable outsourced the drilling to BJ Services and for the next six months the holler, or enclosed valley, was flattened for a six-acre natural gas well pad.
Tamera Hagy describes life during the drilling and fracking: “It was nothing like what I had expected. This was a huge operation that lasted day and night for eight months. Trucks went up and down the road 24/7. The smell of fumes would make you sick. One night we heard something like a giant drill bit drilling and vibrating under our house.”
Dusty visited the well pad often and learned from the job crew that this fracking job wasn’t going smoothly. One worker mentioned that they had hit a lake of water and were moving the rig. Another worker shared in this audio tape #3 how the cement casing “went bad” and was re-cemented. Of the four open and lined fracking wastewater ponds, one overflowed and later broke, spilling the fracking wastewater into the nearby creek that flows from the well pad past the Hagy family’s home. In March 2008, Dusty noticed that another fracking pond’s wastewater was emptied by hose into the woods. After finding foam and oil slicks in the creek next to their well, and then when their large pond turned green, the Hagys knew something wasn’t right.
Dusty lodged a formal complaint with the West Virginia Department of Environmental Protection (DEP) on Nov. 17, 2008. DEP records reveal a gas inspector visited the site at the well’s completion and issued no violations. DEP records also reveal the three natural gas wells began producing gas in July 2008 and the wells today continue to produce about 3,000 m.c.f. of gas per month.
Be careful what you sign
As Dusty describes the Equitable representative, “We liked him, and he was a nice enough guy in the beginning and we believed everything he told us at face value.” Equitable said the natural gas drilling was simple and would cause minimal damage on 1.5 acres. When Dusty asked if fracking used anything dangerous, they were told that only water and sand were used, no chemicals were ever mentioned. A water test prior to drilling supported the Hagy’s belief that their water well was clean and safe. 
On Oct. 22, 2007, Equitable paid the Hagys $19,000 to cover surface damages to their land and trees because building a well pad trashes the landscape. “I believed the Equitable guy when he said the check was just for surface damages. My property was valued at nearly $200,000. It was stupid to sign that paper, I should have gotten a lawyer,” explained Dusty. Because the well pads used more than the original 1.5 acres, Equitable paid the couple another $10,000 for damage on an additional four acres.
Later in 2008, Dusty learned the papers they had signed to receive the payments were actually damage release contracts attempting to exempt Equitable, and all drilling providers, from any and all damages associated with the drilling. “Other than shooting the family dog, this ‘contract’ covered near everything,” said Dusty Hagy.
Family gets sick—headaches, rashes and vomiting
The family drank, bathed and cooked with their well water from November 2007 to November 2008 during the gas well drilling and fracking. Ironically, the Hagy family had boasted about their pristine well water and even after their adult sons moved out, the boys brought jugs of well water back to their homes.
The Hagys began to notice changes to their water in early 2008. Their water volume was dropping and the water’s color changed from clear to brown. Often black particles were floating in water drawn from their well. Despite overwhelming evidence otherwise, Equitable never reported any issues that would impact the Hagys’ well water.
Adding to the changing water quality, both Dusty and Tamera said they were oddly tired, and woke up with “bad headaches, like a hangover.” Both smelled an “acid” odor in the house and their eyes would burn in certain rooms.
The Hagys didn’t put “two plus two together” until their youngest son went to his family doctor in Columbus, Ohio in October 2008. Their son had complained of nausea and was spitting up blood. His doctor treated him for acid reflux, a disorder he’d never experienced before, and suggested he stop drinking his parent’s well water. The son’s symptoms disappeared soon after he discontinued drinking his parent’s well water.
Tamera Hagy developed a rash that her primary care physician diagnosed as contact dermatitis, a skin inflammation caused by a foreign source. Expert medical testimony in court documents reveal the Hagys’ health symptoms mirrored chemical exposure.
Water tests reveal drinking water was bad and Hagys vacate property
Based on their complaints, Equitable re-tested the Hagy water well on Nov. 8, 2008 and their water had clearly changed. The turbidity, or murkiness, was six times greater post drilling (0.5 to 3.2) and iron, manganese and calcium levels increased significantly (Dusty replaced one hot water heater during this time due to calcium build-up).
Water tests conducted later also revealed arsenic, lead, barium and Bis(2-ethylhexyl)phthalate, an organic compound linked to fracking wastewater. The radon levels of the Hagy well were 1,233 pCi/l with the maximum contaminant level set at 300. When those radon levels were compared to area wells, the Hagy’s radon in their drinking water was markedly higher than eight local U.S. Geologic Survey wells in the area.
However, the water tests conducted before and after drilling were limited and included no tests for known fracking chemicals or volatile organic compounds.
In November 2008, Equitable told the couple, “the water was bad” and to stop drinking the well water and the company began supplying bottled drinking water.
On Jan. 13, 2009, Dusty and Tamera vacated their home and have never moved back. “We thought we were going to die,” said Dusty Hagy.
Relations with Equitable were getting tense; Dusty even began recording phone conversations. Repeated requests for a list of the chemicals used in fracking went unanswered.
Equitable admits “your water’s been affected because of our drilling process.”
Dusty Hagy assumed Equitable would fix the water issue based on phone conversations (audio tape #1) with his Equitable representative who stated on the phone:
“ … for whatever reason the water’s been affected because of our drilling process. But the horizontal portion of it I don’t think had anything to do with it. Something we did had something to do with it. We have done something to the water, and no one was doubting that, but it wasn’t the horizontal part. I’m not doubtin’ that fact and I don’t think anybody’s doubtin’ that, the horizontal portion wouldn’t affect it.” 
Equitable offered to drill a new water well which the family declined because they believed the aquifer itself was contaminated. This belief stemmed from a neighbor’s claim that 30 of his animals had died in 2008 during the gas drilling. Plus, Equitable tied any restitution to the couple signing an non-disclosure agreement, or gag order, meant to silence the Hagys and negate any future claims.
Hagy family sues drilling firms
As this phone conversation (audio tape #3) with Equitable reveals, once the family sought legal representation in March 2009, all contact with Equitable stopped.
Bottled water deliveries and hotel payments stopped. While the couple searched for a rental home, they lived in their un-heated camper. On a positive note, once they vacated their home, their negative health symptoms dissipated.
The Hagys sued Equitable Production Company, BJ Well, Halliburton and Warren Drilling in October 2009. In short, even with the taped calls, drilling records, photos, videos and water tests, the Hagys’ lawsuit was “dismissed” in August 2012. Judge Goodwin’s opinion stated, “The case presents no genuine issue of materials fact for a jury to determine.” The lawsuit is in the appeals process and the litigation costs to date are $175,000.
How does this happen?
Though the Hagys’ lawsuit appears to provide evidence of water contamination, their dismissed lawsuit supports the claim, “There are no known cases of drinking water contamination from fracking,” often touted by pro-fracking groups.
This claim isn’t true, at least 4 confirmed cases of water contamination exist:
Why so few confirmed cases and no case tried before a jury?
More than 40,000 shale gas wells have been drilled since 1996 and at least 825 serious fracking complaints have been lodged, yet only 40 fracking lawsuits have been filed. To date, a jury has never heard a fracking lawsuit.  
The answer:
  • The natural gas industry is regulated on a state-by-state basis because of the federal legal exemptions granted to the industry.
  • Predatory, private contracts signed between firms and individuals favor gas companies. 
  • The U.S. legal system’s high litigation costs dissuade lawsuits.
How the “the Big 7” exemptions play out in reality
The natural gas industry is exempted from seven major federal environmental laws. These laws in their simplest forms are intended to protect people, places, water and air.  The U.S. Environmental Protection Agency (EPA) is tasked with enforcing these laws. Because the natural gas industry isn’t regulated by the U.S. EPA at the federal level because of the legal exemptions, natural gas drilling is regulated on a state-by-state basis.
The chart below outlines the seven federal environmental laws exemptions, with many exemptions dating back decades.
The latest three exemptions were strategically written into the 1,500 page Energy Policy Act of 2005 and are now infamously named the “Halliburton loophole.” These three short paragraphs focused on eliminating water pollution oversight and also eliminated the strict environmental reviews that federal projects must undertake.
When these exemptions are combined, the benefits to natural gas industry are: no federal EPA oversight therefore pushing fracking regulation to the state level, no scientific testing, no environmental studies, no health and geologic studies and no liabilities for drillers of chemical releases into waterways and air.
The 2005 Energy Policy Act’s strategy was to provide the U.S. with “an abundant, domestic and affordable sources of fuel.” Since 2005, the gas industry has been unhampered by federal regulations and the newer shale gas drilling has grown quickly; U.S. natural gas from shale reserves has grown from one percent to 35 percent of the U.S. supply. This new supply of 8.5 trillion cubic feet of gas has forced natural gas prices down by 50 percent, even spurring coal-based electrical plants to convert to natural gas. 
The coffin nail: Toxic Release Inventory exemption
The least known exemption though, the 1986 Toxic Release Inventory of Emergency Planning and Community Right-to-Know Act, may offer the natural gas industry the biggest shield from liabilities and the greatest obstacle for parties alleging fracking water contamination. 
In response to the Bopal, India disaster, when Union Carbide released a harmful gas into an urban area which killed more than 20,000 people, Congress required industries to list harmful chemicals on the Toxic Release Inventory to the EPA. The EPA collects and then disseminates that information to the public and local governments.
Yet, oil and gas companies were exempted from the Toxic Release Inventory, therefore chemical disclosure is different for each of the 29 fracking states. To boot, shale gas production, or fracking, is concentrated in relatively gas-friendly states: Texas, Louisiana, Pennsylvania, Arkansas, West Virginia, Colorado and North Dakota, listed in order of gas production volume.
According to an in-depth National Resources Defense Council report which compares today’s hodgepodge of state-level fracking regulations, no state requires full chemical disclosure. Even new regulations in Texas, the largest shale gas producer, require chemical reporting but do not require “proprietary” chemicals to be listed which can account for 50 percent of the chemicals used in one fracking. The report also concludes that state reporting is inconsistent and significant portions of data are missing altogether.
Adding to the lack of chemical disclosure, only two states (West Virginia and Colorado) inform residents about new wells before drilling. This means that in 27 states, residents are not notified of new drilling, making it impossible to conduct comprehensive (and expensive) water testing before the drilling.
How exemptions play out in the law-can you prove what you drank?
In 2007, Equitable wasn’t legally required to disclose the chemicals used in the fracking, therefore no doctor, no person or group knew what chemicals to test for or what caused the foam in the creek, the color changes in the pond or the compromised water well.
Though water tests revealed the Hagy property drinking water had changed since the drilling had occurred, the tests were not apples-to-apples comparisons.  During the lawsuit’s evidence discovery process, the natural gas firms finally furnished the list of chemical used on the Hagy property which verified the fracking chemicals used weren’t “just water and sand,” as quoted by the Equitable contact.
The absence of verifiable chemical data is displayed in Judge Goodwin’s opinion and order to grant a motion for Summary Judgement, which in layman’s terms means the Hagy lawsuit was dismissed. The burden of chemical exposure proof was placed on the plaintiffs, “to demonstrate amount, duration, intensity and frequency of chemical exposure.” A catch-22.
Gas leases and contracts: The devil’s in the fine print
Adding to the chemical disclosure catch-22 is that most gas leases heavily favor natural gas drillers. In 2011, The New York Times analyzed more than 110,000 shale gas leases and concluded; over half of gas leases provide landowners no restitution in the event of harm, most exclude any explanation of potential harm and a majority of leases include automatic contract extensions that require no landowner approval. Natural gas wells can produce for decades and gas lease contracts can be automatically renewed in perpetuity. Many leases include clauses mandating that damage disputes be heard in arbitration outside of the legal system.
The door-to-door leasing agents who represent gas drillers, a.k.a. landmen, are tasked with getting natural gas leases signed by landowners. Feedback from many landowners is that landmen are very persuasive, personable and often mis-represent facts. These revealing talking points pages were reportedly found by a Ohio homeowner who had been visited by a West Bay Exploration’s leasing agent. The talking points, marked confidential, give sales agents advice to, “not talk about the anti-fracking documentary Gasland, to not discuss chemicals or fracking and to speed up the lease signing before people think about the drilling.”
Many natural gas leases border on predatory in nature as it appears the gas leasing process relies on the ignorance of rural, landowners to enter into binding, private contracts with natural gas drillers.  
The Hagys claim they were absolutely unaware they had signed a damage release waiver, twice even. “The Equitable representative sat right on my porch and said the cash was a small payment for the trees and land damage. It wasn’t until November 2008 that I even found out I supposedly had signed away any rights,” said Dusty.
These two damage release forms inadvertently signed by the Hagys have reared their ugly heads during the lawsuit process as another reason Equitable and BJ Services claim they are not liable for any water, health or property damage; the companies claim the Hagys signed away any rights to liabilities and restitution.
Suing a gas company—expensive and grueling
“Fracking has been the tragedy of the commons—freedom to a common, brings ruin to all,” according to Maxwell Kennerly, a trial lawyer at The Beasley firm in Philadelphia. Legally it’s been impossible for plaintiffs to precisely pinpoint exactly what happened underground or link exact chemicals to a situation when those chemicals aren’t divulged and the drilling process isn’t accessible. Any lawyer taking these cases has to be prepared to put their own money and resources on the line to be a trailblazer.”
The first legal team hired by the Hagy family in 2009 dropped the Hagys’ case one year later. During that year the family lost valuable time in conducting water tests and gathering evidence. Their current lawyer, Kevin Thompson, of the Law Offices of Thompson Barney in Charleston, West Virginia, has taken the case on a contingency fee basis. The Hagy family has paid no out-of-pocket expenses. The lawsuit’s litigation costs to date top $175,000.
Lastly, there is an emotional toll for using our legal system to get restitution; it’s a grueling process according to Dusty Hagy. “It’s been hell. For over two years, we’ve been reliving this awful experience. In the back-of-our-minds we realize this may be all for nothing. My wife and I feel we had our most important asset stolen from us, the drinking water that makes our property a place to live, not just 81 acres for animals. It feels like the whole system is stacked against us.”
Where are the Hagys?
Interestingly, the Hagys and 70 of their neighbors who live on a 5-mile stretch of Sugar Creek Road have petitioned Southern Jackson County Public Services to extend public water service to their homes at cost of $2 million. The project is on an 5-year waiting list and there is no guarantee it will ever be completed. According to Karl Vielhaber, general manager for the Southern Jackson County Public Service, the property owners have petitioned for municipal water because most claim their water wells are contaminated from gas drilling. Most of the homeowners haul water to their homes from a coin operated water source. 
Dusty and Tamera have moved to a new property with a mortgage, and they still own their vacated property. Equitable’s three natural gas wells still produce gas today and may for years on the Hagys’ vacant property.
The winners and losers
A clear winner in fracking so far is natural gas industry. Fracking cases settled out-of-court provide critical benefits for the gas industry because the settlements include “gag orders” so that injured parties can not discuss the case and its contents. Financially, settlements reduce liabilities for natural gas firms by eliminating unpredictable jury awards. More importantly, settlements help the industry maintain their public relation’s campaign to the media, elected officials, the financial industry and the American consumer that natural gas drilling is clean and safe.
American consumers are also winners in the fracking story. According to the Energy Information Administration, residential gas prices are about 50 percent less than the 2008 natural gas price peak.
Fracking’s losers are the private landowners who have been negatively impacted by fracking and may or may not have received proper restitution. Collectively, the public loses as closed settlements shut down any learning, studies or analysis needed to create uniform industry best practices and build legal precedence for future cases.
Based on evidence and public pressure, Congress finally approved the U.S. EPA to conduct scientific fracking studies. The final study will be available for peer and public review December 2014.
Fracking regulations are slowly developing. The Obama Administration announced federal regulations mandating methane capturing at well sites. State legislatures are slowly developing new rules with Pennsylvania creating some of the toughest legislation over wastewater recycling and charging per well fees to pay for damages. But, as the Center for Energy Economics and Policy’s website and National Resourced Defense Council report illustrate, fracking regulation is complicated and convoluted.
What can you do?
Stories like this can often leave readers with an uneasy question: “What can I do?” Hear are a few ideas.
  • Contact your federal and state elected officials. Your state elected officials are key as fracking is exempt from federal regulation and it seems Washington is struggling to make any changes with pretty much anything. Sending a quick email to your state delegates and senator with a link to this post takes 30 seconds and alerts your elected officials that fracking is on your radar screen. Make your opinion on the current process known.
  • Choose a fracking group from below that matches your point of view and sign-up for their newsletters. Add them to your twitter feed or friend on facebook to keep abreast of new regulations and issues. If you’re a Flipboarder, add fracking to your list.
  • The groups below often include easy “call-to-actions” where your voice can be heard. Interestingly, all but a few people in these groups and grassroots organizations are volunteers.
If you’re interested in reading the natural gas industry’s point of view, Energy in Depth is their policy and communications group.                                   
All photos taken by Dusty Hagy except the photo and story below is from the West Virginia Surface owner’s Right’s Organization.
Visit EcoWatch’s FRACKING page for more related news on this topic.
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Sunday, March 31, 2013

Fracking records unsealed in Pennsylvania by Betsey Piette

Posted on March 31, 2013 by dandelionsalad
Dandelion Salad
Stop the Frack Attack
Image by N-ree-K via Flickr
by Betsey Piette, www.workers.org, March 26, 2013
Philadelphia  — Since 2005, a provision of the federal Energy Policy Act popularly labeled the “Halliburton Loophole,” allowed the giant corporations profiting from drilling in major shale formations across the U.S. to withhold information on the hundreds of potentially toxic and carcinogenic chemicals that make up fracking compounds. The law provided them protection for “trade secrets.”
This industry tactic to restrict oversight and limit potential litigation was supplemented by state laws like Pennsylvania’s Act 13 that prohibited disclosure of the impact of harmful chemicals whenever lawsuits were settled with major fracking corporations.
Under the terms of Act 13, doctors treating patients suffering from injuries or illnesses suspected to be caused by fracking were prohibited from disclosing exactly what chemicals were involved or the nature of their patient’s illness. While some provisions of Act 13 have been overturned by state courts, this one has not.
On top of these legislative covers, all too frequently lawsuits regarding water or air contamination stemming from fracking were settled with a ubiquitous “nondisclosure” clause prohibiting plaintiffs from revealing just what damage they suffered.
If a rancher’s cattle dropped dead after drinking fracking wastewater, scientists were prohibited from testing the dead animals to find out just what chemicals they had ingested.  If children became ill after exposure to air or water contaminated by fracking chemicals, no doctor could sound a general alarm.
Crack in fracking industry’s armor
A judge’s ruling in a western Pennsylvania court is being seen by many as the first crack in the fracking industry’s armor.
On March 20, Judge Debbie O’Dell-Seneca reversed an order by a Washington County court that sealed records from a lawsuit against several Marcellus Shale gas companies involving property damage and health impacts from air and water pollution caused by natural gas operations.
The Pittsburgh Post-Gazette and the Observer-Reporter filed the case to unseal records stemming from a case initiated by Stephanie and Chris Hallowich against Range Resources, Mark West Energy Partners, and Williams Gas/Laurel Mountain Midstream Partners, which was originally settled in July 2011. The drilling companies sought to keep the records out of public scrutiny. Areas around Pittsburgh have been particularly hard hit by unfettered drilling for natural gas.
As is the case with most complaints involving fracking, the parties reached a settlement outside the courtroom. It is known that Range Resources agreed to pay the Hallowich family $750,000.
Amicus briefs supporting the newspapers’ lawsuit were filed on behalf of Philadelphia Physicians for Social Responsibility and several doctors and scientists who argued in support of greater transparency concerning fracking’s health impacts.
Earthjustice attorney Matthew Gerhart, who filed a brief, called the court’s ruling “a victory for everyone who believes that we need more information about the environmental and health consequences of fracking.”
A key part of Judge O’Dell-Seneca’s ruling challenged the corporations’ claim that they had the same right to privacy as individuals to keep records from being unsealed. She determined that Pennsylvania’s constitution does not protect the right of privacy for businesses.
Records expose role of DEP
The fallout from this historic ruling remains to be seen. Many cases across Pennsylvania concerning contamination from drilling in the Marcellus Shale either were resolved through out-of-court settlements with nondisclosure clauses or were never contested for lack of verifiable evidence.
The anti-fracking group StateImpact Pennsylvania quickly posted all 971 pages it obtained from the unsealed Hallowich settlement. The family had sued after their children were sickened from nearby drilling activities, but were forced to agree to a strict gag order in order to reach settlement.
The unsealed court records reveal several references to the plaintiff’s concern about the lack of adequate inspections or oversight by the Pennsylvania Department of Environmental Protection. The DEP failed to keep complete records of their investigation, including having no record of testing a Hallowich neighbor’s water that revealed high levels of the cancer-causing chemical acrylonitrile.
The DEP inspector who did the investigation subsequently left the state agency to work for Range Resources.
The DEP’s failure to adequately test well water impacted by fracking chemicals or to report their findings to homeowners has long been a key concern for communities impacted by fracking across Pennsylvania.
As part of their settlement the Hallowich family had to sign an affidavit that “no medical evidence” definitively linked their children’s illnesses to drilling activity.
Potentially far-reaching impact
Already families who reached similar out-of-court nondisclosure settlements with drilling companies are asking if the latest court ruling applies to them as well.  Some, who had agreed earlier to a confidential settlement, are asking if this decision lifts their gag order.
The drilling industry is currently pushing a campaign designed to convince people that the industry has “made peace” with environmental activists by agreeing to voluntary “tough new fracking standards” and that now fracking should be safe and therefore “more acceptable.”
While activists say the drilling industry’s practices are as unsafe as ever, the industry’s goal is to push the expansion of fracking by going around any potential state or local restrictions.
One court ruling won’t turn around the lack of government control, but it can give the anti-fracking community a new weapon to fight with.
Piette’s essay, “Drilling into the abyss: Why hydraulic fracturing is not a solution for global energy needs or global warming,” won a first prize at the Havana Book Fair this February, in a contest called “Thinking Against the Mainstream,” run by the Cuban Ministry of Culture.
Articles copyright 1995-2013 Workers World. Verbatim copying and distribution of this entire article is permitted in any medium without royalty provided this notice is preserved.

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Saturday, March 30, 2013

Fracking's Latest Scandal? Earthquake Swarms Caused by Wastewater Injection Wells

Turns out that when a barely regulated industry injects highly pressurized wastewater into faults, things can go

by Michael Behar, Mother Jones, March-April 2013
AT EXACTLY 10:53 P.M. on Saturday, November 5, 2011, Joe and Mary Reneau were in the bedroom of their whitewashed and brick-trimmed home, a two-story rambler Mary's dad custom-built 43 years ago. Their property encompasses 440 acres of rolling grasslands in Prague, Oklahoma (population 2,400), located 50 miles east of Oklahoma City. When I arrive at their ranch almost a year later on a bright fall morning, Joe is wearing a short-sleeve shirt and jeans held up by navy blue suspenders, and is wedged into a metal chair on his front stoop sipping black coffee from a heavy mug. His German shepherd, Shotzie, is curled at his feet. Joe greets me with a crushing handshake—he is 200 pounds, silver-haired and 6 feet tall, with thick forearms and meaty hands—and invites me inside. He served in Vietnam, did two tours totaling nine years with the Defense Intelligence Agency, and then, in 1984, retired a lieutenant colonel from the US Army to sell real estate and raise cattle. Today, the livestock are gone and Joe calls himself "semiretired" because "we still cut hay in the summers."
On that night in November, just as he and Mary were about to slip into bed, there was "a horrendous bang, like an airliner crashing in our backyard," Joe recalls. Next came 60 seconds of seismic terror. "The dust was flying and we were hanging onto the bed watching the walls go back and forth." Joe demonstrates by hunching over and gripping the mattress in their bedroom. He points to the bathroom. "The mirror in the vanity exploded as if somebody blew it out with a shotgun." When the shaking stopped, Joe surveyed the damage. "Every corner of the house was fractured," he says. The foundation had sunk two inches. But most frightening was what Joe discovered in the living room: "Our 28-foot-tall freestanding chimney had come through the roof." It had showered jagged debris onto a brown leather sofa positioned in front of their flat-screen TV. Joe shows me the spot. "It's Mary's favorite perch. Had she been here…" He chokes up.
Joe and Mary Reneau
Joe and Mary Reneau Photographs by Ben Sklar
The earthquake registered a magnitude 5.7*—the largest ever recorded in Oklahoma—with its epicenter less than two miles from the Reneaus' house, which took six months to rebuild. It injured two people, destroyed 14 homes, toppled headstones, closed schools, and was felt in 17 states. It was preceded by a 4.7 foreshock the morning prior and followed by a 4.7 aftershock.
The quake baffled seismologists. The only possible culprit was the Wilzetta Fault, a 320-million-year-old rift lurking between Prague and nearby Meeker. "But the Wilzetta was a dead fault that nobody ever worried about," says Katie Keranen, an assistant professor of geophysics at the University of Oklahoma. We're driving in her red SUV, just south of the Reneaus' property, when she stops to point out where the quake tore open a footwide fissure across State Highway 62. The United States Geological Survey (USGS) maintains a database of seismically risky areas. Its assessment of the Wilzetta Fault, Keranen notes, was "zero probability of expected ground motion. This fault is like an extinct volcano. It should never have been active."
When the Wilzetta mysteriously and violently awakened, Keranen wanted to know why. So she partnered with scientists from the USGS and Columbia University's Lamont-Doherty Earth Observatory. The morning after the initial foreshock, Keranen's team scrambled to install three seismometers around Prague. They did so in time to capture the quake system in unprecedented detail. She says, "We got this beautiful image of the fault plane." Within a week, her team and other scientists had placed a total of 25 devices around the fault zone. One is buried in the Reneaus' backyard. Now, having completed a yearlong study (just published in the journal Geology), Keranen's research indicates the Oklahoma earthquakes were likely attributable to underground injection of wastewater derived from "dewatering," separating crude oil from the soupy brine reaped through a drilling technique that allows previously inaccessible oil to be pumped up. "Pretty much everybody who looks at our data accepts that these events were likely caused by injection," Keranen concludes.
"We still feel tremors weekly," complains Joe Reneau. "They rattle our windows." The couple hasn't bothered to rehang family photos in their living room. Instead, the framed snapshots are stacked in tidy piles on a coffee table.
Such seismic activity isn't normal here. Between 1972 and 2008, the USGS recorded just a few earthquakes a year in Oklahoma. In 2008, there were more than a dozen; nearly 50 occurred in 2009. In 2010, the number exploded to more than 1,000. These so-called "earthquake swarms" are occurring in other places where the ground is not supposed to move. There have been abrupt upticks in both the size and frequency of quakes in Arkansas, Colorado, Ohio, and Texas. Scientists investigating these anomalies are coming to the same conclusion: The quakes are linked to injection wells. Into most of them goes wastewater from hydraulic fracking, while some, as those in Prague, are filled with leftover fluid from dewatering operations.
The impact of fossil fuels is no secret, but until now the short list of dirty energy's villains never included water. Together, oil and gas extraction and production generate about 878 billion gallons of wastewater annually, roughly what tumbles over Niagara Falls every two weeks. More than a third is injected back into disposal wells. With natural gas production on the rise—it has jumped 26 percent since 2007, chiefly because fracking now makes it economically viable to pursue gas trapped in shale deposits—and unconventional practices such as dewatering ramping up domestic oil development, the wastewater deluge is expected to get worse. Operators are injecting more water than ever into drilling wells, while boring new wells to accommodate the overflow. Yet nobody really knows how all this water will impact faults, or just how big an earthquake it could spawn. In the West, small quakes don't often cause much damage because of stricter seismic regulations but also because the underground formations—buckled, with younger rock—absorb all but the biggest events. Induced quakes, however, are happening primarily in flatter states, amid more rigid rock, making them more destructive—a stone makes a bigger splash when it's hurled into a glassy pond than a river of raging whitewater.
For its part, industry is doing its best to avoid discussing the issue publicly, even as its leading professional guild, the Society of Petroleum Engineers, recognized the matter was serious enough to call its first-ever meeting devoted to "injection induced seismicity." Held in September, the SPE's 115-member workshop sought to "better understand and mitigate potential risks." When I reached out to SPE coordinator Amy Chao, she told me, "I appreciate your interest but press is not allowed to attend in any fashion." My requests to speak with geophysicists at leading oil and gas companies implicated in injection-induced earthquakes were also ignored or denied. I did manage to speak with Jean Antonides, vice president of exploration for New Dominion, which operates one of the wells near the Wilzetta Fault. He informed me that people claiming to know the true source of the Oklahoma quakes are "either lying to your face or they're idiots."
Nonetheless, there's growing concern among state officials. After a spate of quakes linked to injection wells shook northern Arkansas, the state's oil and gas commission declared a moratorium on underground wastewater disposal activities within a 1,000-square-mile area encompassing the towns of Guy and Greenbrier and required seismic-risk studies in the greater Fayetteville Shale area. Affected residents filed a class-action lawsuit against Chesapeake Energy and BHP Billiton Petroleum—the first time anyone has sued oil and gas companies for causing an earthquake. After an injection well was linked to quakes in Youngstown, Ohio, Gov. John Kasich issued an executive order requiring operators to conduct seismic studies before the state will issue well permits. So far, Ohio is alone in this regard; no other state—or the federal government—requires any type of seismic-risk assessment for all of its injection wells. And that worries scientists: "Nobody is talking to one another about this," says William Ellsworth, a prominent USGS geophysicist who's published more than 100 papers on earthquakes. Among other mishaps, Ellsworth worries that a well could pierce an unknown fault "five miles from a nuclear power plant."
THE EPA CLASSIFIES AND REGULATES underground injection wells—some 700,000 and counting—based on what goes into them. There are six categories. Class VI wells sequester carbon dioxide; Class V wells store nonhazardous fluids; nuclear waste is stashed in Class IV wells; Class III wells are used in mining salt, uranium, copper, and sulfur; industrial chemicals get stored in Class I wells. Wastewater from oil and gas operations is discharged—typically by injecting it under pressure—into Class II wells.
There are at least 155,000 Class II wells in the United States. Of these about 80 percent are involved in recovering hydrocarbons, predominantly through slick-water hydrofracking, a technique developed by Halliburton. Fracking fluid—water blended with lubricants, thickeners, disinfectants, and other compounds—is pumped into well bores at extremely high pressures. Eventually, the fluid reverses course and—along with millions of gallons of salt water that resides underground—ascends to the surface. The "flowback," now laden with natural gas, is collected, the gas is extracted, and the residual fluid is pumped into disposal wells. There are roughly 40,000 of these, and they can be up to 13,000 feet deep.
The extraction process itself doesn't generally produce earthquakes. This is because of something known as pore pressure, a measurement of how much stress a fluid exerts into the "pores" of surrounding rock. The whole aim of fracking is to rapidly increase pore pressure just long enough to cleave fissures into sediment and free trapped gas, after which time pore pressure equalizes, easing the subterranean stress. Only rarely is pore pressure high enough in a fracking well to cause an earthquake that can be felt at the surface.
But while fracking wells are intended to withstand high pore pressure, wastewater disposal wells are not. When pore pressure spikes in disposal wells, it can move rock. Disposal wells are drilled into vast, permeable formations—think giant sponges—where there's plenty of space for water to spread out. But because water is heavy, the more of it that is sluiced into a well, the more it weighs on the rock below. And as Scott Ausbrooks, a geologist with the Arkansas Geological Survey, points out, "Water does not like to be squeezed." Eventually it finds an escape route, "just like a room of people. The more you put in, the more crowded it gets, and at some point, people are going to start being pushed out the doors."

ANIMATED GIF: FRACKED UP?

Drillers inject high-pressure fluids into a hydraulic fracturing well, making slight fissures in the shale that release natural gas. The wastewater that flows back up with the gas is then transported to disposal wells, where it is injected deep into porous rock. Scientists now believe that the pressure and lubrication of that wastewater can cause faults to slip and unleash an earthquake.
how fracking causes earthquakes
Illustration: Leanne Kroll. Animation: Brett Brownell
With the oil and gas boom generating record amounts of wastewater, these rooms are getting increasingly jam-packed. Exactly how much? The EPA tracks volumes but wouldn't provide them; agency officials declined numerous requests for interviews. Companies are also pumping into denser rock, or into deeper formations that are inherently unstable. "There's much more injection going on today where there wasn't injection before," says Cliff Frohlich, associate director of the Institute for Geophysics at the University of Texas-Austin, who recently identified a cluster of wells at the Dallas/Fort Worth International Airport as the likely culprit for nearby earthquakes.
Too much wastewater in a disposal well forces liquid downward and outward, he adds. It can meander for months, creeping into unknown faults and prying the rock apart just enough to release pent-up energy. Frohlich describes this as the "air hockey" effect. A puck on an air hockey table won't move even if the table is tilted upward a few degrees. "It would just sit there," he says. "But when you turn on the air, it reduces the friction and the puck will slide. There are faults most everywhere. Most of them are stuck, because rock on rock is pretty sticky. But if you pump a fluid in there to reduce the friction, they can slip."
THAT'S EXACTLY WHAT HAPPENED in northern Arkansas, where, according to state geologist Ausbrooks, water from several injection wells pushed apart the two sides of a fault, "allowing it to slip and start popping off the earthquakes"—thousands of them. Ausbrooks, along with Stephen Horton, a University of Memphis seismologist, identified the source: a previously unknown 7-mile-long fault that hadn't budged in modern times. Though not huge, the fault is still long enough to generate a magnitude-6.0 earthquake. (In 1993, when an equal-size temblor hit Klamath Falls, Oregon, it killed two people and caused $7.3 million worth of damage—in a rural area.)
While the largest faults in the United States are documented and mapped—the San Andreas, New Madrid, Cascadia, and dozens of others—"there are faults everywhere, and some are too small to be seen," explains Mark Zoback, a professor of geophysics at Stanford University who was on the National Academy of Engineering committee that investigated the Deepwater Horizon oil spill. "A fault can be missed that could produce an earthquake large enough to cause some moderate damage."
Scarier still is that any fault, no matter how minuscule, can instigate the domino effect scientists have observed during injection-induced earthquakes. "The scenario we worry about is one earthquake spawning another," says the USGS's Ellsworth. This phenomenon was evident in Oklahoma, Keranen says, where "we had one fault-plane go, a second one, and then a third one. They ruptured in sequence." The first tremor in Prague sprang from a minor fault that collided with a larger fault, sparking the quake that trashed Joe and Mary Reneau's home, along with a dozen others.
How far from the site of an injection well could a quake occur? Scientists aren't sure. In Arkansas, along the fault discovered by Ausbrooks, tremors emanated nearly 10 miles. Had those quakes collided with another fault, the shaking might have extended much farther. "Once it starts moving, it's like a chain reaction," notes Ausbrooks.
ALL THESE FACTORS WERE IN PLAY in Youngstown, where D&L Energy Group conducted an experiment, burrowing 200 feet into solid rock known as the Precambrian layer, according to Heidi Hetzel-Evans, spokeswoman for the Ohio Department of Natural Resources. Tremors began three months after wastewater entered the well. The strongest, a 4.0, struck on New Year's Eve. Wastewater had seeped nearly 2,500 feet beyond the bottom of the borehole into an unknown fault. "There will be no more drilling into Precambrian rock in Ohio," Hetzel-Evans dryly tells me.
John Armbruster, a seismologist at Lamont-Doherty who was among those summoned to Youngstown, told me, "This well caused these earthquakes. There were no felt earthquakes in Youngstown in 100 years." Within a year of the well opening, there were "12 felt earthquakes. After the well was shut down, the number decreased dramatically. You'd need Powerball odds for that to be a coincidence."
There is no shortage of evidence. After quakes struck near Trinidad, Colorado, in 2011, the USGS set up a monitoring network. "A magnitude-5.3 earthquake occurred within two kilometers of two high-volume injection wells," says Justin Rubinstein, who is part of a new USGS project to study human-induced seismicity. "These earthquakes were caused by fluid injection." Ditto in Dallas; as UT-Austin's Frohlich points out, "These earthquakes could have been anywhere. They weren't. Virtually all of them were near injection wells."
earthquake swarm oklahoma
Earthquakes near Prague, Oklahoma, from November 5, 2011, through December 4, 2011. Red indicates 2.2 magnitude; magenta represents the 5.7-magnitude quake. KellyMcD/Flickr
Ellsworth, who peer-reviewed Keranen's study, has researched earthquakes for more than 40 years and is a recipient of the Department of the Interior's highest honor for his contributions to seismology. He studied geophysics at Stanford, earned his doctorate from MIT, and is the former president of the Seismological Society of America. When I asked him if there is any doubt among his colleagues about what produced the quakes in Arkansas, Colorado, Ohio, Oklahoma, and Texas, he replied, "Injection of wastewater into Class II wells has induced earthquakes, including the ones you cite." Rubinstein agrees: "In my opinion, it's pretty clear in all of these cases—Youngstown, Arkansas, DFW, Trinidad, and Oklahoma—that injection wells were the cause."
Does industry concur? Jim Gipson, director of media relations for Chesapeake Energy, operator of the wells under DFW airport and a now-closed well near Greenbrier, Arkansas, declined my request for an interview. Hal Macartney, geoscience adviser for Pioneer Natural Resources, which owns some of the wells implicated in the Colorado quakes, dodged my calls and emails for three weeks. Even those not implicated directly with quake-causing wells are staying silent. Hydrofracking pioneer Norman Warpinski, who works for Halliburton, refused comment. Geophysicist Mark Houston and managing partner Steve Sadoskas, at oilfield-services provider Baker Hughes, wouldn't talk. Julie Shemeta, founder of MEQ Geo, a firm that does seismic consulting for oil and gas exploration, said she was too busy for a 15-minute phone call even though I offered her a two-month window to schedule it.
I'm not the only one getting rebuffed. There is "a lack of companies cooperating with scientists," complains seismologist Armbruster. "I was naive and thought companies would work with us. But they are stonewalling us, saying they don't believe they are causing the quakes." Admitting guilt could draw lawsuits and lead to new regulation. So it's no surprise, says Rubinstein, "that industry is going to keep data close to their chest." When I ask Jean Antonides, New Dominion's VP of exploration, why the industry is sequestering itself from public inquiry, he replies, "Nobody wants to be the face of this thing." Plenty of misdeeds are pinned on oil and gas companies; none wants to add earthquakes to the list.
The USGS's Ellsworth tells me that some operators track seismic data near well sites but won't share it, and so far there is no state or national regulatory requirement to do so. And the "Halliburton Loophole" written into the 2005 energy bill at the behest of then-Vice President (and former Halliburton CEO) Dick Cheney excludes hydrofrackers from certain EPA regulations, among them provisions related to "the underground injection of fluids…related to oil, gas, or geothermal production activities." Upshot: "It's an age where information has exploded, but this is an area where we're still working in punch cards," Ellsworth says.
A cracked wall on the Reneau's property in Prague, Oklahoma. After the November 2011 earthquakes, it took the Reneaus six months to rebuild their home. 
Just knowing the daily volumes of water being pumped into a well would yield critical clues. "There is a correlation that shows the largest earthquakes tend to be associated with the largest volume wells," adds Ellsworth. Ideally, the USGS would get real-time data. But operators are only required to track monthly volumes, and those tallies are often delayed six months or more. By then, it's too late. Rubinstein wants "industry to actually give us hourly or daily injection pressures and volume, so we can model where the fluids are going and predict how the stress evolves over time…and be able to come up with some probabilistic sense of how likely you are to generate an earthquake."
As for Keranen's explosive research on the Wilzetta Fault, New Dominion's Antonides is recruiting his own scientists to produce a report challenging it. Meanwhile, he has his own theories. "The traffic driving across the freeway could have caused it," he says, adding that another "trigger point" is the two large aquifers that bracket the fault. Drought has reduced their water levels, "removing a lot of the weight" and allowing the ground underneath to "rebound" and perhaps release energy in a pent-up fault. "All this stuff is tied together—the aquifers, plus trucks driving across the freeway, plus water disposal, plus 50-story buildings—the whole system of man." (This hypothesis has some basis in reality. Scientists in Taiwan fear that the weight of a skyscraper unhinged faults underlying Taipei. Though no such structure, it must be said, is found within 50 miles of Prague, Oklahoma.)
Nine days after the New Year's Eve quake in Youngstown, D&L Energy Group issued a statement that said, "There has been no conclusive link established between our well and the earthquakes. Proximity alone does not prove causation." In March 2012, state officials published a report explicitly detailing the connection, noting that the recent quakes were "distinct from previous seismic activity in the region because of their proximity to a Class II deep injection well. In fact, all of the events were clustered less than a mile around the well." But D&L still questions the new findings—even though the quakes petered out soon after the company voluntarily shut down its well.
AUSBROOKS AND HORTON PARTNERED for nearly a year to research the Arkansas earthquakes, driving around the state to install seismometers and collect data. And yet when it came time to publish the results in a leading scholarly journal, Seismological Research Letters, Arkansas Gov. Mike Beebe forced Ausbrooks to remove his name as coauthor. Ausbrooks' boss at the Arkansas Geological Survey is Bekki White, who did two decades of consulting for the petroleum industry prior to her current post. "Ms. White conferred with our office," Matt DeCample, a Beebe spokesman, tells me. "We felt that putting the state and/or Mr. Ausbrooks as a coauthor would represent additional academic credentials beyond their usual scope of work. The survey is in the business of data collection, not interpreting that data and reaching conclusions." When I ask Ausbrooks for a better explanation, he laughs nervously. "Oh, let's just say, I want to say, but I can't. I'll just put it this way: There's money and politics involved." (The state collects $14 million in property taxes from Chesapeake Energy alone.)
Joe and Mary Reneau.
Fracking is an area where conflicts of interest seem particularly apt to emerge. In December, UT-Austin was forced to retract a much-ballyhooed study showing that fracking didn't pollute groundwater after Bloomberg News and an independent analysis by the Public Accountability Initiative revealed that the lead author (and former head of the USGS), Charles Groat, had received an undisclosed 10,000 shares a year and an annual fee ($58,500 in 2011) from a fracking company. The head of UT-Austin's Energy Institute, Raymond Orbach, also stepped down. (Groat is now the head of the Water Institute of the Gulf in Louisiana; Orbach remains at UT.)
Seismologists and geophysicists who work in academia often consult for the oil and gas industry. For example, Stanford's Zoback is on the board of the Research Partnership to Secure Energy for America, a nonprofit oil and gas advocacy group whose charter is to "effectively deliver hydrocarbons from domestic resources to the citizens of the United States." Its members include Halliburton, Chevron, BP, and ConocoPhillips. During our conversations, he peppers his answers to my queries with caveats. "People forget that earthquakes are a natural geologic process, and in most of the cases, what the [injection wells] are doing is relieving forces already in the Earth's crust on faults that would have someday produced an earthquake anyway—maybe thousands of years from now. The oil industry has a history of operating 155,000 [wells] without a problem. Now we have a handful of cases. Without seeming like I'm taking industry's side, where is the problem?"
Keranen, too, juggles conflicting interests. When we talk, she occasionally cuts herself off mid-sentence and then confesses, apologetically, "I have to be careful what I say." Her research on the Prague quakes hasn't been published, and she seems concerned it might antagonize those who will decide on her academic tenure. Randy Keller is the chair of the University of Oklahoma's ConocoPhillips School of Geology and Geophysics. In 2007, the energy behemoth donated $6 million to the university, earning it top billing. Keller is also director of the Oklahoma Geological Survey, which has a mandate to "promote wise use of Oklahoma's natural resources." Such alliances make it difficult for him to point fingers. In December 2011, the OGS published an official position statement on induced seismicity, emphasizing that quakes could easily originate through natural dynamics and that "a rush to judgment" would be "harmful to state, public, and industry interests."
When I emailed Keller in October to inquire whether the OGS had modified its assessment in the face of Keranen's findings, he replied, "We do feel that the location of these events…the nature of the aftershock sequence, and the focal mechanisms can be explained by a natural event." A few hours later, he sent me a follow-up. "I wonder if you understand what I was trying to say. We have never flatly said that the injection wells did not trigger the earthquakes. Our opinion is that we do not yet have the data and research results to make a definitive statement about this issue." Keranen walks the same line, saying that her study will show that wastewater injection "very potentially" roused the Wilzetta Fault. Politics aside, there's widespread scientific consensus that unregulated wastewater injection presents a serious risk to public safety. "We're seeing mid-5.0 earthquakes, and they've caused significant damage," Rubinstein says. "We're beyond nuisance."
So what would the scientists do? One option is to require operators to check geological records before drilling new wells. The Wilzetta, mapped during Oklahoma's 1950s oil boom, could have been avoided. Another approach is using high-frequency sound waves to render three-dimensional images of underlying faults—technology that oil and gas companies already employ to hunt for untapped reservoirs. For existing wells, operators could set up seismometers to capture the tremors that often portend larger events. Finally, simply pumping less water into wells might mitigate earthquakes. Horton attempted to test this tactic in Arkansas. "We suggested reducing the amount of fluid they were injecting and continue [seismic] monitoring. We actually submitted a proposal to the industry to do that and they blew us off." Ohio's regulations for Class II wells, effective as of October, encompass many of these proposals.
Stanford's Zoback is not opposed to regulation, so long as it's not a knee-jerk reaction: "Three things are predictable whenever earthquakes occur that might be caused by fluid injection: The companies involved deny it, the regulators go into a brain freeze because they don't know what to do, and the press goes into a feeding frenzy because they get to beat up on the oil and gas industry, whether it is responsible or not. While I'm making a joke here, there is currently no framework for scientifically based regulation. Assessing and managing the risk associated with triggered seismicity is a complex issue. The last thing we want to implement is a bunch of new regulations that are well meaning but ineffective and unduly burdensome."
Getting regulators to agree on new rules is not going to be easy, because the connection between injection wells and earthquakes is inherently circumstantial. Seismologists can't situate sensors miles underground the instant an earthquake occurs, which means they might never be absolutely certain that wastewater and not natural forces led to the rupture. Frohlich puts it this way: "If you do the statistics, smoking causes lung cancer. But that doesn't mean that smoking caused your lung cancer." Ultimately, the courts may decide how much evidence is enough, if the lawsuit in Arkansas goes to trial.
Until then, the Reneaus face more home repairs and an uncertain future. When I leave, Joe walks me out to the driveway. Resurfaced after it buckled in the quake, it's already showing hairline cracks from recent tremors. Joe blames injection wells but thinks culpability will be hard to come by. "My theory is that even if God came down and said, 'You oil company guys are at fault,' they would still deny it. The only thing that's going to stop this is another big earthquake."
*It should be noted that the United States Geological Survey used two different techniques to estimate the earthquake magnitude at 5.6. The Global Centroid-Moment-Tensor Project at Lamont-Doherty Earth Observatory of Columbia University used different methods to measure it at 5.7. As Justin Rubinstein of the USGS told us, this type of variance is not unusual, and the measurements are considered consistent.
http://www.motherjones.com/environment/2013/03/does-fracking-cause-earthquakes-wastewater-dewatering
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