Saturday, March 29, 2014

Ruling allows Scroggins back on Cabot-leased land Fracking activist will fight buffer zone in May trial

A ruling Friday by a Pennsylvania judge to allow activist Vera Scroggins back on land leased by Cabot Oil & Gas is a “big win” according to her legal team, but the fight will continue in a trial scheduled for May 1.

An order, drafted by Cabot attorneys and handed down by Judge Kenneth Seamans in October, barred Scroggins from setting foot on land owned or leased by Cabot, “including but not limited to” well sites, well pads, and access roads. That language kept Scroggins from approximately 200,000 acres -- nearly 40 percent -- of Susquehanna County where Scroggins lives, including property of friends, neighbors, stores, parks, schools and health care providers.

After a hearing Monday, Judge Seamans modified the injunction to restrict Scroggins only from work areas designated by no-trespassing signs and a 100-foot buffer zone. The new order, issued on Friday, allows Vera to enter other land leased by Cabot, including markets, public spaces, physicians offices, and hospitals. It also allows her to use public roads that go by work sites, but the ruling stipulates that she cannot stop or linger at the entrances to access roads.

In an interview Friday with Associated Press reporter Michael Rubinkam, Scroggins’ attorney Scott Michelman characterized the revised order as “a big win,” but he added that the 100-foot buffer could pose unjustified restrictions. Scroggins said the revised order was “a step in the right direction. ” She told me today that she and her legal team will fight the buffer zone at a trial scheduled for May 1.

Scroggins’ vantage point was mostly from public roads by drilling sites, although Cabot claims that she also trespassed onto private land under lease by the Texas drilling company, posing a safety risk to herself and others. In a statement Friday, Cabot officials said they were "satisfied” with the ruling to maintain an injunction against Scroggins that “protects Cabot and its employees, contractors and others” and “keeps landowners from being exposed to liability that could arise from Scroggins' actions."

One of the main questions to be resolved: Is a buffer zone, which does not apply to other citizens, necessary to protect the health and safety of Scroggins and others, as Cabot claims, or is it being used by Cabot to discourage anti-fracking activists from filming or viewing Cabot operations from legitimate vantage points, as Scroggins claims.

Scroggins has taped and posted hundreds of video files on You Tube showing drilling operations in Susquehanna County since 2009, including spills, clean-ups, and discharges. The videos cast operations in a way that runs counter to the industry’s portrayal as clean and safe. Scroggins has also lead tours for political action groups, academics, journalists, and other interested parties visiting the area to learn more about drilling and the controversial practice of high volume hydraulic fracturing to stimulate the gas wells.

Monday, March 24, 2014

Cabot v Scroggins = heat over land rights, speech, fracking Pa. court considers injunction to limit activist’s actions

Vera Scroggins and her lawyers (left) at the Montrose courthouse Monday
A confrontation over free speech and land rights that began inside a courthouse in Montrose, Pennsylvania this morning grew more contentious outside, as lawyers and demonstrators took their arguments to the courthouse steps and parking lot.

The hearing, in the Court of Common Pleas before Judge Kenneth Seamans, involved what degree Cabot Oil & Gas can limit activist Vera Scroggins in her attempts to videotape drilling operations and related activity. The company has faced public relations and environmental problems in Dimock township after the state Department of Environmental Protection held Cabot's operations responsible for polluting an aquifer that supplies dozens of homes in Dimock Township.

Scroggins has taped and posted hundreds of video files on You Tube showing drilling operations in Susquehanna County since 2009, including spills, clean-ups, and discharges. The videos cast operations in a way that runs counter to the industry’s portrayal as clean and safe. Scroggins has also lead tours for political action groups, academics, journalists, and other interested parties visiting the area to learn more about drilling and the controversial practice of high volume hydraulic fracturing to stimulate the gas wells.

Scroggins’ vantage point was mostly from public roads by drilling sites, although Cabot claims that she also trespassed onto private land under lease by the Texas drilling company, posing a safety risk to herself and others.

One basic question before the court was whether Scroggins willfully and habitually trespassed. Her lawyers said that drilling zones were not always clearly marked with no trespassing signs, that Scroggins' ventures into drilling territory in each case were in good faith to openly ask questions and seek information, and that she always complied if asked to leave.

Two other questions, however, make the case a potential landmark test of a company’s control over property it leases but does not own. The first question is whether Cabot can legally keep Vera away from leased land, including access roads, with a buffer zone that extends into adjoining public roads and right-of-ways. The second question is whether a party that owns sub-surface rights but not surface rights can legally act as “gatekeepers” for who can and cannot come onto the land. Can a mineral rights lessee forbid a person who has been invited onto the land by the property owner to view operations?

Seamans granted the injunction in October, after Vera appeared in court without an attorney to answer the trespass charge.  Since then, the case has generated interest and outrage among activists who say Cabot is restricting limits on Scroggins’s constitutional right to report what is happening in her community, and its actions have a chilling effect on others. Attorneys Scott Michelman, of the Public Citizen Litigation Group in Washington, D.C. and Gerald Kinchey, in private practice in Sayre, Pa., have taken up Scroggins’ case pro bono.

Ostensibly, the injunction was designed to keep Scroggins away from work areas for safety reasons. But technically, the language forbids Scroggins from setting foot on land owned or leased by Cabot, “including but not limited to” well sites, well pads, and access roads. That phrasing is what makes the case a possible watershed. The Texas drilling company has leases on more than 200,000 acres -- nearly 40 percent -- of Susquehanna County where Scroggins lives, including rights to property of friends, neighbors, stores, parks, schools and health care providers. Obeying the injunction has required both active research to find out what land is leased, and also avoidance of places that she would normally go without thought.

At today’s hearing, Cabot proposed an alternative plan that would ban Scroggins from 150-foot setbacks from access roads and 500-foot buffer zones from work sites. Cabot attorney Amy Barrette, of Norton Rose Fulbright, argued the setbacks were necessary because “given Ms. Scroggins’ past conduct, if you give her an inch, she will take many, many miles, and she will be up on the well pads.”

Michelman argued that the order went well beyond addressing safety concerns and posed “a chilling effect” on the speech and actions of activists who wanted to call attention to fracking operations. An injunction that prevented Vera from entering designated work sites would be reasonable, he said, but not a buffer zone. He pointed out that such a zone could keep Scroggins from certain parts of public roads as well as areas that property owners are allowed on, even if they invited her to go with them.

The broad scope of the injunction is not about safety, but a ploy to intimidate activists, Michelman said in an interview after the hearing. “It tells them you will pay for exposing what is going on at these sites. You will pay for speaking out against the big oil and gas companies.”

During the hearing, Kinchy argued that, unless it is specifically written in a lease, the lessor of sub-surface rights does not have the right to dictate who can and cannot come onto leased property. That principal will be relevant if the case goes to trial. Jeremy Mercer, a lawyer for Cabott, rebutted that Pennsylvania case law does in fact give mineral rights holders such rights.

Seamans adjourned the hearing after attorneys from each side agreed to send the court versions of the order that they could live with. Judging by the arguments, that would be in Scroggins’ case an injunction that keeps her from well pads, work areas, and access roads, and in Cabot’s case an injunction that keeps Scroggins from both these areas and specified setbacks from these areas. The case is scheduled to be tried May 1 unless the parties can come to terms.

A small group demonstrated support for Cabot 
More than 120 people attended the hearing, many of them activists from outside the area who were there to support Scroggins. A contingent of a half dozen or so drilling proponents, including some local landowners, demonstrated support for Cabot’s position.

After the adjournment, the crowd swarmed outside the courthouse where both pro-drilling and anti-fracking groups held press conferences. In a rally on the courthouse steps, drilling supporters held signs that said “Drill Baby Drill” and “Vera Get Off Our Land.” At the same time, a mix of Scroggins supporters and adversaries gathered in the corridor that lead to the back parking lot. Vera had sat quietly during the hearing and let council do the talking. Now, flanked by her lawyers, she used the platform to criticize the industry’s safety record and to call for more scrutiny.

“It sends a message that if you speak out, you will pay. This is an outrage,” she said, citing violations that the state has issued the company. “Why are they allowed to operate?”

Barrette (right) argues with Michelman over intention of Scroggins injuncttion
After about 10 minutes, a sheriff’s deputy told the crowd to go outside because the congestion in the hallway was posing a hazard. About this time, Barrette, Cabot’s attorney, shouldered her way through the crowd to Michelman, who was standing next to Scroggins. After an exchange, they exited to the parking lot. Some of the conversation was lost in the noise, but it had to do with the merits of the injunction and the way it was written.

“Did you draft that order?” Michelman said as the two faced each other in the parking lot.

“Yes, and the order was not sought to keep her from the hospital or any of those other places,” Barrette replied.

“Its language was categorical,” Michelman said. “If you wanted something different, you should have drafted it more carefully, and if you didn't like what the court entered you should have moved to modify it. You could have done that in the last five months.”

“We gave you a very narrow proposal that you rejected many times,” Barrette said, as a cluster of reporters and spectators caught up with them. “We'll let the court decide.” Barrette referred questions from reporters to George Stark (a company spokesman who has not returned my calls) and she walked away to rejoin the pro-drilling group in the front of the courthouse.

Shale Shock Media captured some of the events following adjournment, including the confrontation in the parking lot, in the video below:

Thursday, March 6, 2014

Coming soon: Audit to grade DEP’s oversight of drillers Water testing protocol remains center of transparency flap

Is the Pennsylvania Department of Environmental Protection a lion or a lamb when it comes to regulating and policing shale gas operations?

One qualified and independent source will soon provide an answer. Im May, the office of Auditor General Eugene DePasquale is due to release a detailed investigation into the practice and protocol of the state's regulation of the drilling industry, a source from his office told me this week.

DePasquale announced the review in January, 2013, in the wake of a controversy over whether state investigators obscure or alter the outcome of investigations into drilling’s impact on water supplies by disclosing an incomplete suite of chemical tests. The intention of the probe, according to a letter from DePasquale, is to determine the "adequacy and effectiveness of DEP's monitoring of water quality as potentially impacted by shale gas development activities, including but not limited to systems and procedures for testing, screening, reporting and response to adverse impact such as contamination."

In other words, the probe will get to a question at the crux of the fracking debate: whether and to what degree the DEP is safeguarding water supplies from drilling.

The DEP’s testing protocol for wells potentially affected by drilling operations entered the public spotlight with a case by Loren Kiskadden seeking damages for pollution against the agency and Range Resources. The case, now pending in the Court of Common Pleas, claims that the department withheld full results of tests of Kiskadden’s water in June 2011 and January 2012. The ensuing “suite code” controversy came to light in September 2012 with the deposition of Taru Upadhyay, the DEP Bureau of Laboratories technical director, at a Environmental Board Hearing. Upadhyay testified that results for some metals, including copper, nickel, zinc and titanium, were not included in Kiskadden’s final report. This was not unusual, she said, because the lab only verifies concentrations of compounds ordered by the investigator from the oil and gas division, even if the samples were tested for a broader range.

DEP officials have since confirmed that the testing protocol for markers of contamination from Marcellus Shale production – including what and how many chemicals  are included in the final analysis -- falls to the discretion of individual investigators because they are best able to judge what chemicals are relevant to the investigation.

Watchdog agencies have characterized the DEP’s approach as random, incomplete, and a violation of public trust. Steve Hvozdovich, Marcellus Shale Policy Associate for Clean Water Action, said residents and watchdog agencies took it on faith that the department was following accepted protocol outlined by the federal Environmental Protection Agency in Method 200.7 – which requires testing for at least 24 different chemicals.

“This comes down to a lack of trust and a lack of transparency,” he said. “Nobody outside of the DEP offices knew this – that they were not quality controlling and quality assuring for the full 24 chemicals. It took a law-suit to bring that out … We need to have comprehensive testing, especially in a case where it originates from a residential complaint.”

Clean Water Action was one of a dozen agencies that signed a letter to the DEP on January 25, 2013 with concerns that the agency's testing methods “lack transparency; result in the withholding of vital data from affected households and the public; force residents to potentially undergo prolonged exposure to contaminants that impact health; and delay action necessary to correct pollution of drinking water supplies.”

But concerns of environmental activists are not shared by all. The DEP’s approach to regulation and enforcement under drilling supporter Governor Tom Corbett has a lot to do with the boss’s political values of how much government should be overseeing private business. The oil and gas industry – provider of cheap abundant energy that we all demand – has been the long-time beneficiary of regulatory passes. For starters, the entire problem of determining what, how, and if chemicals affect water is prodigiously complicated by the fact that the industry is exempt from federal laws that require disclosure and regulations of chemicals injected into the ground, and also laws governing hazardous waste coming out. Corbett, who won election in 2010 partially on a platform to limit state regulations on the industry, has been praised by industry supporters who defend the DEP oversight as sufficient and responsible.

No matter what it says, DePasquale’s report, coming in May, will likely be controversial due to the political volatility of the subject matter. In addition to the water-testing issue, the probe will “determine the adequacy and effectiveness of DEP’s monitoring of the handling, treatment and disposal of waste connected with shale gas development activity, including but not limited to systems and procedures for testing, tracking, treating, disposal, data collection and analysis, reuse and recycling, reporting, and response to adverse impact such as contamination.”

It’s sure to add a new wrinkle to the shale gas debate as the election year heats up, beginning with primaries among gubernatorial candidates who will likely have something to say about it. Those include John Hanger, a Democrat, who served as DEP Secretary under the Ed Rendell administration. Hanger is a gas supporter, but he is also in the pro-regulatory camp. As DEP chief he has been critical of – and sometimes at odds with -- certain companies he characterized as rogues. He has called on the DEP to reform its protocol to ensure a comprehensive data set of water test results gets to people who are potentially affected by drilling. The degree Hanger's message resonates with primary voters will be one of many tests of how much weight regulatory reform carries in the larger political equation.

Saturday, February 15, 2014

NY nat' gas projection exemplifies doublespeak on fracking Cuomo plan bases outlook on conflicting scenarios

Will Fracking be part of New York’s energy picture for the next 20 years, or not? The state’s draft 2014 Energy Plan is supposed to answer this kind of question, and the fact that it appears to but doesn’t represents the politically unwieldy position Governor Andrew Cuomo finds himself in with the fracking debate.

In a recent post, I wrote that the plan “makes no mention of developing New York’s shale reserves through fracking, a discussion that remains the elephant in the room. But the plan gives a nod to the role of natural gas and more infrastructure as part and parcel to some very ambitious, of very broad, goals.”

An astute reader, Keith Schue, flagged this. He pointed out Cuomo's plan does in fact mention fracking, albeit in a convoluted and (in my view) meaningless way. Schue directed me to “Volume 2 – Sources,” and a subsection on p. 88 titled "New York Production Forecast." (Embedded below)

My own review of this section found several things worth noting.  First, the forecast, accompanied by a chart, extends through 2035. During that time, the state’s natural gas production is “expected to decrease significantly,” according to the text, due to a “decline in existing formations” and “lack of new wells being drilled.”

Yet, oddly, the line plotted in the accompanying “figure 32” gas production climbs impressively through that period.

The text attempts to explain this, ignoring the inconsistency in the original analysis that gas production was expected to decline. The graph illustrates “a conservative Marcellus Shale natural gas production level.” This “conservative” level accounts for “potential (my emphasis) permitting and production difficulties related to horizontal drilling and hydraulic fracturing.” It offers this elaboration. “If these difficulties are minimized, Marcellus production levels could potentially be higher.”

Finally, it explains that the graph “would show a forecasted overall decline in production continuing through 2035 if the current prohibition on shale development continues.” It concludes that “Regardless of actions within New York boundaries,” ample supplies of gas exist elsewhere “as long as the interstate pipeline capacity exists.”

In a nut, the plan says that Marcellus gas will make production go up, contingent on unknowable factors if it happens, and go down if it doesn’t; and New York can get gas elsewhere anyway, if their are enough pipelines.

To my eye, the analysis appears at first blush to be vague to the point of meaninglessness. But I will grant that it provides a baseline for discussion and many will find that the very dance around the Marcellus question along with the excruciating qualifications and parsing of language are emblematic of the ambiguous state of our energy future.

Shue, who is working with various environmental and anti-frcking groups, explained in an email that he and others were in the process of “writing an exhaustive critique of the energy plan and will be shining a spotlight on this sly mention of fracking at the hearings too.” I am happy that others are looking carefully at this, and I welcome their assessments.

Wednesday, February 12, 2014

Moratorium or not, NY begins to feel fracking’s impact Outcome rests with future of consumption, production

While New York’s governor Andrew Cuomo has officially tabled a decision over the politically explosive issue of fracking until sometime after elections, his state’s energy dilemma continues to simmer.

For worse or better, the Empire State will continue to feel impacts of the fracking boom for the next decade or more. The question is how big those impacts will be. The answer, to a large degree, rests with the governor, who can direct policy encouraging or discouraging both production and consumption of natural gas, and/or alternatives.

Even with no decision to allow shale gas wells to be permitted within the state, fracked natural gas and oil are flowing into or passing through New York at an accelerated rate as the on-shore drilling boom continues to ramp up nationwide. Crude oil from the Bakken shale in North Dakota has begun passing through New York at an annual rate of 2 billion gallons, traveling by rail to Albany and then down the Hudson River on tankers and on to refineries in New Brunswick Canada. (The oil carries unusual risks. With relatively high concentrations of gas, it has caused explosions after four separate rail mishaps in North America, including one that killed 47 people in Lac Megantic, Canada.)

Numerous infrastructure plans to store and transport natural gas within New York are also well underway. Liberty Natural Gas has proposed a terminal to import gas to communities in New York and New Jersey. The Port Ambrose facility, proposed 19 miles off Long Island, would take in liquefied natural gas (LNG) from ships, convert it back into gas, and pipe it to markets in New York and New Jersey now dependent on heating oil. Anti-fracking activists fear the port will be converted to an export facility. In addition to various pipelines on the drawing board and underway throughout upstate and downstate, there are plans to increase storage capacity. In the Finger Lakes community of Seneca Lake, Inergy Midstream is seeking final approval from the Department of Environmental Conservation to store propane in depleted salt mines, which would serve as a distribution hub through the region. The project faces intense opposition from grass roots and institutional environmental causes.

Over the long haul, the impact of regional and national shale gas development on New York rests with two primary factors: How much gas the state consumes, and how much it produces.

On the consumption side, natural gas is a primary fuel for heating and electricity generation. Based on a draft of the New York State 2014 Energy Plan, recently released by the governor’s office, that trend is destine to continue, like it or not. The plan calls for expansion of natural gas infrastructure to replace heating oil – which is both dirty and expensive -- in urban areas downstate and elsewhere.  Initiative 9 on p. 44 states it this way:

Reduce reliance on petroleum products for heating buildings by supporting the use of clean alternatives to heating oil and expanding access to natural gas in the near term while pursuing strategies to reduce natural gas leakage.

Simply put, natural gas consumption will continue to be a staple in the state’s energy diet with intended improvements to its leaky delivery system.

The plan talks much about consumption and infrastructure of natural gas, but little about production. It makes no mention of developing New York’s shale reserves through fracking, a discussion that remains the elephant in the room. But the plan gives a nod to the role of natural gas and more infrastructure as part and parcel to some very ambitious, if very broad, goals. An overriding goal (rooted in policy from Gov. David Paterson's administration) is to reduce the amount of greenhouse gasses emitted in the state by 80 percent by 2050. It’s important to note that the gauge for measuring this goal is predicated on carbon; and that fuel oil – like coal -- emits much more carbon than gas. Critics like Bob Howarth feel the plan falls well short of fully accounting for the impact of methane. Howarth, a Cornell University ecology professor, is one of several co-authors of a paper challenging the notion that methane is an environmentally sound alternative to coal or other fossil fuels for that matter. “Natural gas is a disastrous fuel,” he said.

There are other aspects to the 2014 Energy Plan, including a $1 billion “New York Green Bank” to invest in “clean energy projects”; an initiative that lists “increased transportation alternatives”; and independent “microgrids” that can offer alternative and backup sources to communities apart from primary  grids.

The plan is easy to look at, with an abundance of glossy and marginally relevant pictures of happy people in scenic landscapes, but difficult to read with bureaucratic jargon that is simultaneously dense and vague. Some critics called out the report for a lack of specifics and the preponderance of gloss. Andy Leahy, a drilling proponent and blogger who has been following developments in New York, wrote in Shale Gas Now that the Energy Plan was “governance of wishful perception” and he suggested it was “catering to the uninformed, wishful desires of everybody in New York who wants to feel vaguely good about the future, but to stay lit and warm throughout, burning what's extracted out of Pennsylvania.”

Others were enthusiastic about the plan. Pierre Bull, a policy analyst for the National Resources Defense Council, wrote on the agency’s blog, Switchboard:

The already-impressive NY-Sun Initiative is about to become one of the most ambitious solar programs in the nation, with the governor committing, through a filing with the state’s Public Service Commission, $1 billion to the program—that’s right, $1 billion—over the next 10 years. (Governor Cuomo’s text also announces a major new program to help K-12 schools throughout New York go solar. You can read more about that here.) The governor’s goal is to install 3,000 megawatts of solar across New York. That’s enough solar to power 465,000 New York homes, cut greenhouse gas emissions by 2.3 million tons annually—the equivalent of taking almost 435,000 cars off the road—and create more than 13,000 new solar jobs. 

If New York expects to become a national showcase for how to dramatically reduce greenhouse gasses, it has plenty to work with. But assessing how that measure is made – and the degree that it includes natural gas -- is critically important.

By design more a PR gloss and political showcase than a technical document, the daft energy plan still serves a critical role as a catalyst for public discourse and involvement on the politics and technicalities of energy delivery. To that end, public hearings will be held around the state in February and March. (Full schedule here.)

The primary question not mentioned in the energy plan is whether New York will allow exploration to begin for shale gas production. With a recent announcement from Department of Environmental Commissioner Joseph Martens that the state will not issue permits until at least 2015, the governor’s staff has put speculation to rest that we will see fracking in New York anytime soon.

But both landowners and industry interests are mounting legal challenges in an attempt to force the governor’s hand. Tom West, an industry lawyer, is a primary figure behind the challenges, which I wrote about here. (Note that a hearing for West’s case, Wallach v New York state, has been postponed until March 7. This is so the complaint can be filed with a parallel case by the Joint Landowners Coalition, represented by attorney Scott Kurkoski of Levene, Gouldin & Thompson and funded by the Rocky Mountain Legal Defense Fund, an NGO that supports conservative causes.

Regardless of how the challenges to Cuomo’s indefinite delay on fracking turn out, another group has brought up a nagging question about the extent of New York’s shale reserves, and whether development is even viable at current prices. Chip Northrup, a former industry investor, accompanied by a group of critics with backgrounds in geology and industry, have been making presentations, most recently to a state Senate committee. The thrust of their argument is that geological data suggest New York’s shale gas reserves are not worth the bother, but speculators who gamble on them may still cause significant environmental headaches for the greater public.

All the speculation, either supporting or undermining the size of the state’s fossil fuel assets, won’t change this underlying reality: Upstate and New York City need lots of energy now, and tend to consume it in its cheapest and most available form.

Friday, January 31, 2014

Veil may be pulled from NY’s review of fracking in 2014 State has 45 days to begin releasing files on health review

Developments on the status of New York and shale gas unfolded on two fronts this week.

The first was widely reported: Joseph Martens, Governor Andrew Cuomo’s, environmental chief, told a legislative panel that the state’s moratorium on high volume fracking, now in its sixth year, would last at least another 14 months – through the next fiscal year. As he has done before, at Wednesday’s hearing Martens repeated what was already known – that the state Department of Health was studying the issue. And as before, he offered no specifics.

The second development, which went mostly unreported, may soon pry loose an explanation. Under the threat of a lawsuit by a citizens action group called Seneca Lake Pure Waters Association, Cuomo’s administration settled a case to release administrative documents, letters, and other records detailing the DOH study that will determine the outcome of the governor’s decision to allow or ban fracking – whenever that decision might come. (Details of the settlement, arbitrated in the state Supreme Court, are posted below.) The state has 45 days from January 10 to release some files, and 75 days to release others to comply with open government laws. The SLPWA, represented by attorney Rachel Treichler, will continue to pursue a legal claim if they find the records that the state releases do not comply with the Freedom of Information request outlined in the settlement, according to Mary Anne Kowalski, SLPWA President

Cuomo’s record on the question of whether the state will allow exploration and development of the Marcellus Shale is characterized by a sense of ambivalence, which is justifiable, and opaqueness, which is not.

Shortly after Cuomo began his first term in 2010, he identified the shale gas question as a priority, and insisted that the policy review that began under the previous administration would be expedited under his leadership.  In June of 2012, Cuomo proposed allowing drillers to begin work in communities where town boards favored it, but not in places opposed. But this and any other indication of industry support that Cuomo has uttered has triggered substantial grass roots protests and critical backlash from influential institutions and individuals within the governor’s political base. In short, fracking opponents characterized places where the state would begin permitting high volume hyraulic fracturing as “sacrifice zones” and they questioned why shale gas development would be allowed in some areas if it was unsafe in others.

Since announcing plans in September, 2012 for the Department of Health to become involved in the review, Cuomo and his staff have refused to talk about the fracking issue except in the most vague terms.  Even outside experts hired to make key assessments are bound by contracts that include a clause prohibiting them from disclosing or discussing the proceedings or records involved.

A pause in the race to frack may be well justified pending a more thorough review of policy, which is antiquated and ill equipped to handle the pressures from wide scale unconventional shale gas extraction. But withholding information – notably the scope, timing, and protocol for the health review -- from the public has invited only suspicion and attacks from parties both for and against drilling. (In addition to the Freedom of Information challenge by the SLPWA, I recently wrote about a legal challenge to the governor’s approach by landowners, represented by industry attorney Tom West.)

At the 2013-14 budget hearings a year ago, Martens told legislators that the policy review, called the Supplemental Generic Environmental Impact Statement (SGEIS), would be finished in “a matter of weeks.” Mysteriously, that proved to be entirely wrong. The administration’s only explanation has come from the vague declaration from Health Commissioner Nirav Shah, summed up in a quote reported by Gannett’s Jon Campbell last month: “Until I’m comfortable with the state of the science, I’m withholding my recommendation.”

It’s a matter of record that there is no money allocated in next year’s state budget for the necessary administrative oversight for shale gas development, or revenues that might come from it, so Martens was obliged to connect the dots for legislators: No budget allocation means no drilling.

Shah, who holds the keys to the decision based on the outcome of his review, is scheduled to testify on budget issues in front of legislators on Monday. Perhaps he will be willing to pre-empt any outfall from the soon-to-be public records leveraged through the tenacity of the Seneca Lake Pure Waters Association with a clearer report of the scope, timing, protocol, and preliminary findings of the health investigation.

Saturday, January 25, 2014

Solutions to H20 pollution elude officials in Cabot gas field Five years after blast, Pa officials continue tests in Dimock

Five years after the explosion of Norma Fiorentino’s water well signaled all was not well in Cabot’s Marcellus shale gas operation in northeast Pennsylvania, state environmental officials are still trying to gauge the impacts of drilling on the water supplies of local residents.

The agency is scheduling another round of tests to see whether methane levels in Dimock water wells are safe, Colleen Connolly, a spokeswoman for the Department of Environmental Protection, confirmed this week. It's the latest step in an investigation that literally began with a bang on New Year's Day, 2009. The explosion of the Fiorentino well prompted an investigation by the DEP that concluded water wells serving at least 19 homes contained explosive levels of natural gas that had migrated underground from Cabot’s nearby drilling operations.  Since then, dozens of water wells in Susquehanna County have been taken off line due to methane contamination.

Some of the Dimock residents agreed to a settlement with Cabot, negotiated by the DEP, that compensated the parties with payments worth twice the assessed value of their properties, and systems to filter their water. Others have held out. They believe the systems, which require maintenance, are not an effective answer to the problem and do not filter other harmful chemicals associated with drilling. The settlement was finalized in 2010 under DEP Secretary John Hanger (now a gubernatorial candidate).  Hanger, who headed Governor Ed Rendell’s DEP, had originally pushed for an $11 million infrastructure project, to be paid for by Cabot, to restore fresh water to the residents. Cabot opposed the plan for a water line, and the administration withdrew it soon after Tom Corbett, an industry supporter, was elected governor.

Although Cabot continues to develop the Marcellus Shale throughout Susquehanna County, the DEP has banned the company from drilling within a 9-square mile area around Carter Road until it fixes an unremitting methane problem there.

Working with the settlement as a blueprint, Cabot has restored water to some but not all homes through special filtration systems or bottled water. But problem areas persist. Several polluted homes have been abandoned, including two on Carter Road bought by Cabot. The company bought 1101 Carter Road, once home to outspoken fracking activists Craig and Julie Sautner, and demolished the ranch house last year. It then sold the vacant parcel to a neighbor for a fraction of the purchase price, with a condition written in the deed that no residence could ever be built there. Late last year, Cabot bought the home of Mike Ely, on the south end of Carter Road, although the company has not answered questions about its plans for the contaminated property.

Several other homes in the area remain vacant after having been sold to other parties, reportedly for interest in mineral rights. Three vacant homes happen to be near Cabot’s failed Costello gas well, which officials have indentified as a possible source of methane pollution.  This week, Connolly reiterated that the Costello well, near the intersection of the south end of Carter Road and State Route 3023, was “unviable” and “”remedial work is continuing at the gas well, and Cabot and DEP continue to evaluate results at the water wells.”  In addition to fluctuating methane levels, previous tests have shown levels of iron and manganese that were elevated but within standards in some water samples. Elevated levels of these elements are “not uncommon during gas migration,” she reported.

Before Cabot can resume drilling in the banned zone, Connolly said, the company must “demonstrate compliance” with the 2010 Consent order. “We have scheduled another round of testing to determine whether the gas migration event has ceased,” she added. Connolly could not immediately say how many homes will be included in the sampling collection. Sources in the field told me that the DEP plans to test all 19 homes listed in the consent agreement, but that the agency has not been granted access to all the homes.

As I have found with many stories about shale gas, a central problem is a lack of information. Some of this is because state regulators, dependent on updates from companies that are exempt from many disclosure laws, are still trying to figure out exactly what is going on. And some of it is due to the fact that companies are reluctant to share certain information that casts operations in a negative light. This is all complicated by some residents who feel what is happening on their property is their business, others who want to show the world what they want the world to see, and still others working in good faith to expose and understand problems with the intention of making things better. In short the problem is cast in a muddle of projections from stakeholders with widely divergent interests and ideological footing. Chief among these is Cabot, which possesses the facts about what is happening at its restricted sites and underground, test results, along with rights to the land under question.

In addition to speaking with Connolly and people in the field, I have called and emailed Cabot spokesman George Stark over a period of months for an update. Here is one of my email queries from Dec. 10. 2013:

Hi George,
I’m following up on Cabot’s recent purchase of Mike Ely’s property on Carter Road and have some questions related to that:
Why did Cabot buy the property? 
What plans does the company have for it?  
What is the status of the nearby Costello well? Is it all fixed?
Does the company expect to be able to resume development in the 9-square mile “no drill zone”?
Also, a question related to the former Sautner property now owned by the Mayes: Why did Cabot forever prohibit building a home on the property as part of the land covenant?
 Here is Stark’s response, which came a month later, on Jan. 9, after I left several phone messages:
Got your message yesterday about the former Ely property. 
Cabot entered into a private business transaction with the prior owner of the property. The sale was agreed to by both parties and we are now the current owners. 

Trying to apply his answer to the questions at hand in any meaningful way was fruitless, so I emailed Stark again:

Hi George 
Thanks for responding. But your statement does not answer any of my questions. Here they are again: 
Why did Cabot buy the property? 
What plans does the company have for it? 
What is the status of the nearby Costello well? Is it all fixed? 
Does the company expect to be able to resume development in the 9-square mile “no drill zone”? 
Also, a question related to the former Sautner property now owned by the Mayes: Why did Cabot forever prohibit building a home on the property as part of the land covenant?

That was January 9. Since then I have also left voicemails. I am still waiting for a reply. If Stark’s response, or lack of a response, has any journalistic value in the meantime, it illustrates how some companies deal with these kinds of unpleasant questions. They ignore them, or offer a statement of fact that appears to be authoritative but is actually irrelevant.

There are people on all sides of the debate over the merits and risks of shale gas development who share a sense or frustration over lack of information. A group of drilling proponents called Dimock Proud has been especially critical of the DEP for implementing the no-drilling zone in Dimock without engaging all the people who live there, including those eager to see shale gas development proceed. In their view, the DEP has been operating too much out of the public eye. The group represents people who are in position to make money when Cabot drills on their property. The Dimock Proud web site features letters to the DEP complaining that the agency has ignored their requests for information -- specicially, explanations of the no drill zone around the problem wells and why the ban applies to people in the 9-square mile area who want to see their shale gas developed. The group stresses this compaint:

Dimock landowners have written you countless letters, signed petitions that we sent to you, and absolutely begged you to let us out of that arbitrary 9-square miles. You did nothing! You didn’t even acknowledge receipt of the petitions.

The controversy over drilling and fracking in Dimock is one of many in countless communities in dozens of developing shale gas basins across the country. Some problems are unique and some universal. But Dimock, just across the border of New York State, was one of the first where the media spotlight focused intensely on the gas boom that is transforming the country. And given the persistence of problems there, it's where it might also shine the longest.