Saturday, September 28, 2013

NY’s fracking future hinges on opaque health review Process clouded by secrecy, group sues to open records.

It was one year ago that state officials added a twist to the protracted controversy over whether and where to allow fracking in New York. National news reports in August and September of 2012 suggested that a decision to permit fracking in certain areas was imminent by or shortly after Labor Day. Labor day came and went, and instead of a decision on fracking, we got an announcement from DEC Commissioner Joe Martens that he would ask the health commissioner to assess whether the administration’s four year environmental assessment on which permitting would be based had sufficiently covered the potential for health problems. To do this, the Department of Health hired three outside specialists to critique the state’s draft review – a 1,500-page document called the Supplemental Generic Environmental Impact Statement - -and make recommendations about where to go from there.

The dilemma in New York, which sits over the Marcellus and Utica shales, is emblematic of a global controversy involving future energy sources, the economy, and public health: Is fracking safe and how do we know?

Now, a year after Martens announced the health review, things are no clearer, and in fact the health department’s involvement and ensuing events have made the outlook for shale gas development in New York foggier than ever. The Cuomo administration has released no time-frame, protocol, or scope for the health review, nor has it been willing to release records detailing the mechanics of the administrative directive. The three outside experts hired to make key assessments -- Lynn Goldman of George Washington University, John Adgate of the Colorado School of Public Health, and Richard Jackson of UCLA — are bound by contracts that include a clause prohibiting them from disclosing or discussing the proceedings or records involved.  (Their contracts expired in May, which means their work finished five months ago.)

In short, the public has been shut out of this process. The reasons for this are easily understood if not easily defensible. Over the last five years, the DEC has submitted for public review two drafts of the SGEIS, and one draft of proposed regulations. Those documents became lightening rods for criticism from anti-fracking activists, who used the formal public comment process for each to marshal an impressive display of opposition. The effort yielded protests, rallies, petitions, and (collectively) hundreds of thousands of written comments that gave the governor a taste of the anti-fracking movement’s considerable grass roots organization and effectiveness in New York, and posed a consuming work load for agency staff. Given this past result, it’s a fair guess that the administration intended the health review as a way to shore up the SGEIS’s viability, but not as a vehicle for more paralyzing public criticism. Regardless of intentions, the administration can’t keep it under wraps forever, and perhaps is already beyond the limits of its legal rights.

A process unanchored to any time line, visible policy protocol, or public framework has supported critics’ claim that the so called health review is little more than political cover for Cuomo to avoid a decision on fracking. Although complaints along these lines from both industry supporters and anti-frackers have been loud and clear, no parties have legally challenged Cuomo’s approach…  Until now.

Last week, the Seneca Lake Pure Waters Association, represented by attorney Rachel Treichler, filed a complaint with the state Supreme Court seeking a hearing on the matter in October. SLPWA is seeking state records to assess “what factual information was being collected and reviewed by DOH and the instructions given to DOH staff regarding the DOH health impact study.” The action follows the organization’s unsuccessful attempts to view records related to the study under the Freedom of Information Law.  The DOH denied the agency’s initial request on April 4 and also its appeal May 16. The grounds for the denial: the information comes under the category of “exempt intra-agency or inter-agency records,” according to the DOH response.

It’s a response that advocates find ridiculous, and the SLPWA appeal spells out why:

Frankly, it is simply not credible that the on-going DOH study of health impacts for the SGEIS does not include any statistical or factual tabulations or data, instructions to staff that affect the public, or final DOH policy or determinations. Quite simply, scientists deal with factual information. If DOH is in actuality conducting a scientific review, the factual information they are considering and the instructions to staff regarding that consideration should be released to the public.

We will soon know whether the SLPWA succeeds in prying loose information and if so, whether that will force the hand of the governor in either moving ahead with a decision or formalizing the review process. The demand to open records is supported by hundreds of members of the medical community, organizations, elected officials, and individuals. They signed a letter to the governor to open the process for public comment and to disclose “the charge that Dr. Shah gave the three outside reviewers who are assisting him and to view the documents that they have been given.” But I have also heard off the record from some fracking opponents who fear efforts to press Cuomo could backfire by changing a dynamic – the governor’s indecision - that has so far worked in their favor by preserving the status quo.

Some fracking supporters feel a more transparent health review will also work in their favor, and for this reason they are encouraging their adversaries’ efforts. A blog, Flare Alert, posted by the firm of industry attorney Tom West, anticipated this result of the SLPWA complaint:  “If this suit is successful, it may provide the pressure needed to put an end to this otherwise unnecessarily protracted process. The alternative appears to be a further delay of the determination by the administration until after the 2014 gubernatorial election.”  Karen Moreau, executive director of the New York State Petroleum Council, said in a forum at Albany Law School this week that a lack of transparency disserves the public, and that she “applauds the group from Seneca Lake” suing to open the health department’s review.

Although the health review remains vague, the Cuomo administration has selectively released documents that suggest where the administration stands. Their tone has been vague and cautious, but they generally support the notion that Cuomo has no intention of permitting shale gas wells without a faithful attempt to gauge health impacts, and that the decision by other states to proceed without this assessment is folly.

This was the theme of a two-page memo released to the press on Feb. 12 from DOH Commissioner Nirav Shah to DEC Commissioner Joe Martens.  Shah advised that he expected to make a formal recommendation “within a few weeks.” In the meantime, the DOH staff was reviewing three studies evaluating the impact of fracking on public health elsewhere. They include a federal EPA evaluation of risks to groundwater, and two studies evaluating public health indicators in Pennsylvania gas fields, including one by Geisinger Health Systems that will evaluate hundreds of thousands of records of patients. It will be years before the studies are complete, and Shah did not explain how DOH staff might be able to glean useful information from them “within a few weeks.” Although most of us take that phrase to mean 14 days or less, in the place that produces New York policy, it can mean something other than that, and the tone of Shah’s memo to Martens in fact suggested a much longer delay:

The time to ensure the impacts on public health are properly considered is before a state permits drilling. Other states began serious health reviews only after proceeding with widespread HVHF.
In my view, that is not the right approach for New York to take if we are serious that public health is the paramount question in making the HVHF decision. And as Health Commissioner, protecting the public health is my primary job.

He concludes the letter:

From the inception of this process, the Governor's instruction has been to let the science determine the outcome. As a physician and scientist, I could not agree more. Whatever the ultimate decision on HVHF going ahead, New Yorkers can be assured that it will be pursuant to a rigorous review that takes the time to examine the relevant health issues.

A noteworthy figure in this is Richard Jackson, the UCLA health specialist hired to review the state’s work. He has pointed out in his lectures that it's virtually impossible to produce energy without affecting health, pro and con, and trade offs must be known, documented and considered. Although Jackson's contract with the state has expired, Jackson is said to be continuing on a pro bono basis, according to a report from Gannett’s Jon Campbell. And while Jackson is forbidden to talk specifically about the state study, during a webcast earlier this year he generally urged health impact assessments – lengthy formal reviews that include public participation, time-lines and scopes -- for states considering fracking operations: “We need to step up and be much more visible and present and we need to assure that there is a health impact assessment on any proposed hydraulic fracturing or drilling process just as there would be an environmental impact assessment.” (Some of Jackon's specific comments about fracking on his webcast and his overall involvement with the NY's health review was harshly criticized by a group of health professionals for other reasons. More on that here.)

There are many complicating factors, not the least of which is independent funding. At Geisinger, several pilot studies have begun looking into incidences of trauma, perinatal outcomes, asthma and pulmonary disease, according to a report by Ashley Wislock of the Daily Item. But as of this summer, Geisinger had raised only $1.3 million for the first phase of the multi-year study, which is estimated to cost $25 million.

A preliminary report by a team of toxicologists from the University of Pennsylvania found that health concerns were prevalent among drilling communities: 22 percent of the participants in a small pilot study surmise that hydrofracking may be the cause of sinus problems, sleeping difficulties, and gastrointestinal problems. (Another study by the Southwest Pennsylvania Environmental Health Project, found air pollution from gas processing operations to be more of a concern than water pollution for people who felt sick from shale gas development.) But understanding the relationship between drilling and health with any degree of clarity and precision will take years. It will also take funding not rooted in special interests or at least which comes with full disclosure, and that kind of funding is getting scarce.

In short, a year after Martens announced he would shore up the DEC’s work with a health review, the scientific landscape has gotten more complicated, details of that review remain under wraps, and New York’s fracking future looks more capricious than ever. It remains to be seen whether the SLPWA demand to open records will provide a catalyst for movement, and if so in what direction.

Saturday, September 21, 2013

Will NY natural gas future break from problems of its past? DEC lacks funds to plug tens of thousands of leaky wells

Discharge from this abandoned well killed an acre of vegetation in Oneida County
The debate over natural gas development in New York has mostly been about the future. But residents living over New York’s abundant gas reserves must also figure out what to do about the past.

Regulators estimate there are 57,000 abandoned and orphan oil and gas wells statewide – many of them leaking. Of these, the state has listed 4,722 as a priority due to health and safety risks, but lacks funding to plug them. Wells tend to leak over time as casings deteriorate, raising risks of explosions and providing conduits for water contamination from methane, brine, arsenic and other pollution. The problem is summed up in this 2002 report from the New York Department of Environmental Conservation: “Abandoned wells can leak oil, gas and brine. They can contaminate groundwater and surface water, kill vegetation and cause safety and health problems. Underground leaks may go undetected for years before their damage is discovered.”

It’s a warning supported by facts in New York and neighboring shale gas states, where problems have ranged from drinking water pollution to fatal explosions. (More on that in a bit.)  Unlike many industrial hazards, abandoned wells lurk in unexpected places. (Map here.) They have been found at playgrounds and parking lots, inside buildings, in wetlands, underwater in creeks and ponds, in wooded and brushy areas and in residential yards, according to DEC records. DEC staff discovers more of them every year during scheduled inspections or while investigating complaints. The most threatening cases go on the state’s priority list to be plugged “whenever funds become available.”

So far, funds have not become available, even as the state considers plans to begin permitting new drilling on an unprecedented scale for operators targeting the Marcellus and Utica shales, extending under most of upstate New York.

The abandonment problem is rooted in the economics and regulation of gas production. As wells age and production declines, they become maintenance liabilities, which encourages their sale to whomever will buy them -- typically smaller, less established firms or even homeowners. In the end, the parties left holding them often drop them from their books or go bankrupt.

Theodore Loukides, head of the Oil & Gas Compliance and Enforcement Section for the DEC, issued a bulletin earlier this year notifying operators that “given the state of awareness surrounding energy development, the plugging of legacy wells will likely remain a high-profile issue of years to come.” In the bulletin, published in a newsletter for the Independent Oil & Gas Association of New York, he asked operators for input on plugging, and new initiatives focusing on waste, bulk storage, spills, and proper submittal of annual reports.

DEC spokesman Peter Constantakes didn’t return calls or emails about the subject this week. Yet the “state of awareness” that Loukides delicately mentions is due to the contentious issue of whether Governor Andrew Cuomo will finalize permitting guidelines for high volume hydraulic fracturing necessary to explore and produce the Marcellus and Utica shales, which collectively run under a good part of upstate New York. Since shale gas became a major political issue in 2008, the legacy of “old oil fields” is something you rarely, if ever, hear DEC officials talk about publically, even though the problem has been neatly summarized in prior studies and annual reports.

The 1995 annual report for the Minerals Resources Division was explicit in this warning ,which was repeated verbatim almost a decade later in a 2003 report commissioned by the state Energy and Research Development Authority:
One of the biggest challenges facing the oil and gas regulatory program is the growing liability of idle and abandoned wells. In most cases financial security, even for operators in compliance with current regulations, does not provide sufficient funding to plug the covered wells. When operators default on their tax bills and counties foreclose on properties that contain unplugged wells, those wells become a liability for local taxpayers. This is not a hypothetical worst-case scenario, but reflect current events already happening in the counties. We need a creative approach to develop new solutions to this problem, and hope to productively work together with all stakeholders in this effort.

Fixing the problem will require significant regulatory reform, according to Ron Bishop, a professor of chemistry and bio chemistry at SUNY Oneonta who has been studying the orphan well issue in New York. In a white paper for a land preservation group called Sustainable Otsego, Bishop explains:

Unless the state of New York does something to dramatically alter the long-standing culture of neglect, we can reasonably expect oil and gas industry operators to ignore any new standards just as they systematically ignore existing standards today. 

The problem extends from the pre-regulatory era to current times. It’s common practice for larger operators to sell off wells near the end of their life cycle to smaller firms with less capitol. The sale provides the seller with a better financial outcome than holding onto the dwindling returns and provides a buyer – typically one with limited capital -- a well that it doesn’t have to drill. Bishop cites this explanation from Lou Allstadt, a former senior executive with Mobile Oil:

The original company uses the cash to finance new investments. The buying company operates with lower costs because they spend less on maintenance and safety items and they have fewer well-qualified people to pay. The chain may end there or continue through smaller and ever lower cost operators who do no preventive maintenance at all, do the bare minimum of repairs to keep the well going and eventually walk away, maybe after plugging the hole as cheaply as possible and maybe not plugging at all. The smaller companies often operate each well or group of wells under a separate corporate entity that is always stripped of cash, so if something goes wrong there are no assets to pay off claims. Not all small operators will do this, but it happens. 

Shale gas wells are more prone to this outcome than yesterday’s conventional wells because production from shale, known as tight gas, tends to taper more quickly than conventional wells, according to Bishop.

Now for more on the legacy of problems in New York and Pennsylvania: A starting point is in 2008. The first wave of aggressive shale gas prospecting in New York raised many questions with residents, and DEC staffers staged informational meetings at town halls throughout the Southern Tier to address them. Officials from the Minerals Resources Division pitched shale gas as a clean, problem free and well-regulated industry. They avoided mention of the tens of thousands of orphan wells that in fact represented a serious, chronic, and concrete problem.

Around this time Walter Hang, an environmental researcher, began uncovering a history of neglect that undermined the DEC’s message and sowed early seeds of public doubt about the transparency of both the industry and those who oversee it. Hang is president of Toxics Targeting, a firm that identifies and tracks pollution liabilities for developers and municipalities.

Hang and others who tried to quantify and characterize the problem had tough going, due to a records system that was decentralized, archaic, and often incomplete with files scattered among disparate government offices, private companies, and court rooms. Still, Hang culled 270 records documenting mishaps —some from newspaper clippings, dossiers at health departments, complaints filed with elected officials, and some showing up on the DEC’s database for spills. Many of the problems -- including fires, blow-outs, methane migration, and spills relating to wells or infrastructure –- remained unresolved and partially documented.

Hang’s analysis, which I wrote about in a series of reports for the Press & Sun-Bulletin and later in Under the Surface, drew sharp criticism from industry and regulators who dismissed it as overblown.  A few hundred cases, they said, represents a negligible proportion of the tens of thousands of wells drilled through New York’s history. Still, the cases were troubling then and they are troubling now, mostly because they represent a subset of a greater number of problems that will remain unknown without a reliable and comprehensive system to document them.

In matters of transparency, the oil and gas industry operates mostly on its own terms.  It works on private land under contract with landowners. Chemicals pumped into wells are exempt from the Safe Drinking Water Act, and waste that comes out is exempt from federal hazardous waste laws. The absence of a federal regulatory baseline in these two critical areas leaves a lot of grey area.

And it gets greyer. The DEC, like other states, adopts a laissez-faire approach to much of its oversight.  Agency’s are understaffed and rely primarily on paperwork submitted by operators. Complaints involving water contamination are often settled privately between leaseholder and drillers, and they often end with non-disclosure agreements that eliminate any public paper trail.

William T. Boria, a water resources specialist at the Chautauqua County Health Department, was frustrated by this very approach.  He reported his agency had received more than 140 complaints related to water pollution or gas migration associated with nearby drilling operations. “Those complaints that were recorded are probably just a fraction of the actual problems that occurred,” he stated in a 2004 memo summarizing the issue. For fifty-three of those cases filed from 1983 to 2008, county health officials tabulated an informational spreadsheet that cited methane migration, brine pollution, and at least one home evacuation resulting from a water well explosion. “A representative I spoke with from the Division of Minerals [of the DEC] insists that the potential for drinking water contamination by oil and gas drilling is almost nonexistent,” Boria wrote in his memo to a party whose name was redacted. “However, this department has investigated numerous complaints of potential contamination problems resulting from oil and gas drilling.”

The problem is worse in Pennsylvania, where 200,000 or more abandoned wells are more or less hidden under the landscape. In September, 2009, the DEP compiled a draft of known cases where methane leaked from abandoned or working wells.  According to the briefing, methane migration from gas drilling, had “caused or contributed to” at least six explosions that killed four people and injured three others over the course of the decade preceding full-scale Marcellus development. The threat of explosions had forced 20 families from their homes, sometimes for months. At least 25 other families have had to deal with the shut-off of utility service or the installation of venting systems in their homes. At least 60 water wells (including three municipal supplies) had been contaminated.

What does this mean for the future? It’s hard to know where to start, but focusing on the cost of the problem is a good place. Plugging a single well can cost between $5,000 and $50,000, according to estimates from the DEC. That means the bill for dealing wells on New York’s priority list alone would cost between $24 million and $236 million. In economic terms, this cost is “externalized,” which means that it is not borne by businesses or their consumer. Rather, it’s falls to taxpayers, or comes at the expense of public health and safety.

In many ways the orphan well legacy is similar to the abandoned mine legacy that continues to foul water and create public hazards in Pennsylvania and other states, and it’s a manifestation of an important aspect of the extraction industry overall. Coal, natural gas, and oil provide modern-day comforts beyond historical comparison. As energy consumers, we should embrace a moral obligation to understand where our energy comes from and at what cost as we evaluate tradeoffs.

Monday, September 16, 2013

New study: EPA on target with estimates of methane leaks PNAS offers latest contribution to controversial field

(Updated Sept. 17 with statement from Cathles and link to Dot Earth post. Updated Sept. 18 with link and reference to Steve Horn’s report of industry connections to the study.)

The latest in a string of studies gauging the volume and impact of methane leaks from shale gas development supports the validity of current estimates by the federal government to direct policy.

The peer review study released Monday afternoon by the Proceedings of the National Academies of Science reports direct measurements of methane emissions at 190 onshore natural gas sites in the United States. The report found:

Total emissions estimated based on measurements in this work (2,300 Gg) are comparable with the most recent EPA national GHG inventory (2,545 Gg) in the 2011 inventory, released in April 2013.

The PNAS study represents a collaboration between the industry, the Environmental Defense Fund, and academic teams from the University of Texas, Arizona State, Temple, Berkley and other institutions. It found that lower-than-expected leaks at specific shale gas well sites were largely offset by greater-than-expected leaks elsewhere in the gas processing and transmission system:

The measurements indicate that well completion emissions are lower than previously estimated; the data also show emissions from pneumatic controllers and equipment leaks are higher than Environmental Protection Agency (EPA) national emission Q:8 projections. Estimates of total emissions are similar to the most recent EPA national inventory of methane emissions from natural gas production.

The report will surely stimulate controversy on the critical issue of whether natural gas is an effective means to transition away from energy sources that exacerbate climate change, and whether the federal government is armed with enough information to oversee the industry. Natural gas burns cleaner than coal, with less carbon and virtually no particulate matter and other toxic pollutants, such as mercury. But methane is a potent greenhouse gas, especially over the short term. (Oil and natural gas production also releases hazardous air pollutants  -- HAPs --  and volatile organic compounds -- VOCs -- which are not the focus of the study.)

To help inform policy, scientists are making new efforts to gauge how much unaccounted methane leaks into the air at wells, pipelines and processing stations, and what the impact is. According the PNAS study:

These measurements will help inform policymakers, researchers, and industry, providing information about some of the sources of methane emissions from the production of natural gas, and will better inform and advance national and international scientific and policy discussions with respect to natural gas development and use.

(Questions related to the industry’s impact on air are distinct from policy issues related to water pollution. The natural gas industry is exempt from federal laws that govern chemicals injected into the ground, and how the waste that flows back from wells is handled and disposed of.)

The PNAS study is one of several that have emerged in the last two years in the wake of a paper by Robert Howarth and Anthony Ingraffea that found natural gas is not as clean-burning as advertised. Howarth, a climate scientist at Cornell University, has been involved in the discussion of methane’s impact on air since it became a pressing national issue with the advent of the domestic shale gas boom enabled by horizontal drilling and high volume fracking. Howarth and his Cornell colleague Tony Ingraffea essentially kick-started the debate in 2010 when they published a controversial paper challenging conventional wisdom that natural gas production was less of a warming threat than coal.

The topic was again in the news earlier this year when a study by the National Oceanic and Atmospheric Administration in the Uinta Basin in Utah suggested that benefits of natural gas production were offset by excessive methane leaks in the system. Climate change reporter and author Andrew Revkin offers an excellent history of the discussion – along with comments and reaction from academic stakeholders on both sides of the debate -- in his recent post for New York Times Dot Earth.

Howarth characterized the findings in the PNAS paper as representing a “best case scenario” of methane leakage because the measurements were taken only at places where industry allowed access for researchers. By comparison, the Utah study was derived from observations and measurements collected by equipment on planes that flew over broad areas, rather than relying on access to individual sites granted by industry.

The PNAS paper “is not representative of what industry is actually doing, but what it wants to be,” Howarth said. Still, he added, the study is an important addition to the small but growing body of knowledge on the extent and impact of methane leaks.  “It’s a new science, and I’m impressed with what they have been able to do in this short time frame,” he said.

Lawrence Cathles, a colleague of Howarth at Cornell who argues the climate gains from natural gas development outweigh the losses, said it was not feasible that industry could hide or disguise the volume of methane emissions. “Actually, we will know immediately, and in plenty of time to do something about it, if industry is deceiving us,” he said in a statement that can be viewed here. “In order for methane to contribute to greenhouse warming it must increase dramatically in its atmospheric concentration, and this will be easy to notice.

As expected, industry's ties and involvement with the study were immediately challenged by critics upon its release. The Public Accountability Initiative, a watchdog group, issued this statement:

The failure to disclose the significant conflict of interest of one of the authors, Jennifer Miskimins, appears to constitute a violation of PNAS's conflict of interest policy. Miskimins is listed as a professor at Colorado School of Mines in the article, but has been an employee of Barree Consulting, an oil and gas consultancy offering fracking services, since 2012 -- prior to the submission of the study to PNAS. 
The disclosure failure may warrant an erratum or possible sanctions on the authors of the study, according to PNAS rules. PNAS's conflict of interest policy is here:
A day after this assessment, Steve Horn, writing for DeSmog Blog, reported that nine members of the 11-person steering committee overseeing the study have direct ties to industry interests. You can find the list and the rest of Horn's post here.

Friday, September 13, 2013

Cabot demolishes home central to Dimock water dispute Methane problems persist in 9-square mile no-drilling zone

The Sautner home became focus of the antifracking movement
Cabot Oil & Gas executives may have ongoing problems with operations in Dimock Pennsylvania, but the status of water quality at 1101 Carter Road is no longer one of them.

After years of controversy, Cabot last year paid an undisclosed amount to owners of that property, Craig and Julie Sautner, to settle claims that drilling contaminated their water well. As part of the deal, Cabot acquired the 3.6-acre property, the status of which remained a matter of speculation until last week when flatbeds unloaded a demolition excavator and multiple dumpsters in the driveway of the vacant home.

The arrival of the demolition crew marked a concluding chapter of a conflict that began in September, 2008, when the Sautner’s water suddenly went bad after Cabot crews drilled a nearby gas well into the Marcellus Shale. Under oversight by the Pennsylvania Department of Environmental Protection, Cabot attempted to restore the Sautner’s water with a system of filters and tanks, which took up a substantial part of the basement. The system proved ineffective, and the company began delivering bottled water to the house.

Since then, the three bedroom ranch, sitting tidy and plumb under a canopy of maple trees off the bucolic dirt road, has become a symbol of the anti-fracking movement in the heart of Cabot’s most prolific well field.

EPA investigation begins at Sautner home in Jan. 2012
As drilling intensified in the area, Cabot began dealing with similar water complaints at dozens of other homes in the Carter Road area. After investigating the complaints, the DEP held Cabot drilling operations into the Marcellus Shale responsible for methane contamination in 18 water wells, and eventually ordered the company to install an $11 million pipeline to deliver water to the homes. Cabot resisted, and the DEP’s order caused a political fracas that split the community. A group of residents, including those receiving royalty payments and other compensation from the company, sided with the industry and characterized those demanding the water line as malcontents. Plans for the water line were dropped after Tom Corbett, a gas drilling proponent, was elected governor in 2010. But the DEP continued to enforce a ban on drilling in a 9-square mile area around Carter Road where problems persisted.  The primary constituents affecting the wells – methane, arsenic, barium and other metals -- are naturally occurring, and also a product of drilling.

My coverage of this story for the Press & Sun-Bulletin, and later in writing Under the Surface and posts for this blog, brought me into the Saunter’s home on several occasions. The house, with three bathrooms and a finished basement, was fairly new and well kept. A barn-star adorned unblemished vinyl siding next to the garage entrance, and America the Beautiful was inscribed in a silvery stencil on the wall opposite the entrance in the main foyer. The interior decor reflected the Sautner’s fondness for wall art and country nick knacks, carefully arranged, along with framed photos of the Sautner’s teenage children – Cody and Kelly -- and their various pets, including Emmi, an overprotective Chihuahua that had to be contained when visitors arrived.

Cabot contractors demolish the former Sautner property
The home drew national media attention in 2012, when the federal Environmental Protection Agency, assessing data compiled by Cabot and the DEP, determined that the aquifer feeding the Sautner’s well and other homes in the area showed hazardous levels of pollution. Richard Fetzer, the EPA’s site coordinator, summed it up this way in an internal memo on Jan. 19, 2012: “What is clear is that this data strongly suggests that hazardous substances have been released and are present in some home wells at levels that may present a public health concern.”

The federal agency began it’s own series of tests, and found arsenic, barium, manganese, chromium, and methane in five of 61 wells at levels “that could propose a health concern.” The agency determined no follow up was necessary, however, because residents of affected homes had been notified and polluted wells were taken off line or equipped with filters. The contamination -- in roughly 8 percent of the wells tested -- was from naturally occurring compounds that are also used in or associated with drilling operations, which can exacerbate existing problems or introduce new ones.

Frustrated that Cabot avoided accountability for the problem, the Sautners emerged as dedicated and nationally visible critics of the industry with a degree of animosity that grew with each passing year. They filled their yard and garden with anti-fracking posters, and jugs of brown water. They appeared on television and radio shows and were featured at anti-fracking rallies and concerts, typically carrying the water jugs that became something of a trademark of the movement. Notably, the Sautner’s story was featured in Gasland, the Emmy-award winning film by Josh Fox that premiered on HBO in 2010, and which was largely responsible for inspiring the anti-fracking movement.

The Sautner’s approach -- blunt, antagonistic, and sustained – was eventually met by counter attacks from Cabot and gas supporters, both locally and nationally, determined to discredit their claims. While Josh Fox portrayed the Sautners as victims-turned-activists in Gasland, filmmaker Phelim McAleer, from Ireland, depicted them in his film Frack Nation as self-serving and exploitive phonies. (My reviews of both films can be found here.)

A new message at 1101 Carter Road
The story is complicated by water quality tests that show different things at different times to different parties, and a settlement with Cabot that forbids parties to talk about the case. We know that, while the Sautner home apparently passed spec when the EPA took samples in January, 2012, it had a documented history of pollution prior to that. We also know that the EPA confirmed water problems at five homes. And we know that, in addition to whatever other terms the Sautners settled with Cabot, they received  $167,500 for their property; and it struck me as newsworthy when I heard that contractors working for Cabot had arrived last week to demolish the home.

I placed a call to Cabot spokesman George Stark, who told me that the company had a potential buyer for the land and that it was more marketable without the house.  Stark said he did not know if the land would be developed, and could not offer other details.

An obvious line of thinking, reflected on anti-fracking list serves, is this: With no home, there is no well, and with no well, there is no liability related to water pollution, at least at 1101 Carter Road. But water pollution at other homes continues to plague the company. Regulators are now focusing on methane pollution in three water wells about a mile south of the Sautner home, where Carter Road tees into State Route 3023. The DEP has indentified Cabot’s Costello gas well at this location as the primary suspect.

Stark said that a service rig, which has been at the site for months, allows crews to “monitor” the casing of the gas well, which appears sound.

DEP officials explained it differently. They have not pinpointed a source, according to a recent report in the Scranton Times Tribune quoting DEP spokeswoman Colleen Connolly. But they have determined that the suspect gas well is "unviable" and will have to be plugged. In an email response to my query, Connolly reported that Cabot is ”continuing remedial efforts” at the Costello gas well and “evaluating the effectiveness” of the work.  Methane levels are fluctuating, she said. Additionally, tests have shown levels of iron and manganese that were elevated but within standards in some water samples. Elevated levels of these elements is “not uncommon during gas migration,” she reported.

New and substantial research shows that methane migration from shale gas development is not an isolated problem. A recent study published by the Proceedings of the National Academy of Sciences shows that methane concentrations to be, on average, six times higher for homes with water supplies a kilometer or less from Marcellus Shale gas wells. Ethane, another component of natural gas, averaged 23 times higher for homes within a kilometer from natural gas wells.

The Sautners were not on hand to see the demolition of their former home. After the settlement last year, they moved away – first to Ithaca New York, and later to Tennessee. The new owner, not surprisingly, had removed all the anti-fracking signs in the yard and replaced them with a single blue placard that read “Dimock Proud! Where the water IS clean and the people are friendly.”

The excavator raised its boom and swung it toward the side of the garage. It came to an abrupt stop just before impact. The operator then raised the talons of the bucket to the top of the garage, and guided them in a slow arch, peeling back a swath of roof. The machine began biting into the asphalt tiles, roof boards and rafters. Within an hour, the two-car garage was mostly gone, and the machine continued chewing apart the house and packing wads of siding, insulation, wiring and splintered timber into dumpsters. By the end of the next day, all traces of the house were gone, except the foundation, which was filled in shortly thereafter.

The Sautners are bound by the non-disclosure clause from discussing the Cabot settlement or the water issue. But Craig Sautner did offer this about the demolition: “Their (Cabot’s) actions speak louder than words. There is nothing that I can say that tells the story any better than what they did.”

Time will tell whether 1101 Carter Road remains an uninhabited part of Cabot’s oil patch. The company, meanwhile, is staking much of its future on the gas field in northern Pennsylvania. According to Richard Zeits, reporting for the financial website Seeking Alpha, Cabot officials anticipate at least 3,000 future drilling sites on several hundred thousand acres in Susquehanna County. Yet at the heart of this area, where it all began, the future of the nine-square mile no-drill zone remains awkwardly bound to its legacy of water issues.

Note: This video of the demolition was taken by Vera Scroggins, an anti-fracking activist who lives in Susquehanna County.

Friday, September 6, 2013

Home Rule adversaries welcome date with high court Ruling on towns’ role in fracking battle will be ‘definitive’

Jurisdictional rights of local governments – an issue known as Home Rule -- will have monumental influence on where and if shale gas wells will be drilled in New York. The outcome of that story now hinges on the final act of a conflict that began in 2011 after the towns of Dryden and Middlefield passed laws that prohibited gas drilling and the controversial practice of hydraulic fracturing, deemed incompatible with land use plans.

The decision last week by New York’s high court to hear a case challenging local bans on fracking is a clear and understandable victory for the industry.  It is also something of a plot twist after bans in both Middlefield and Dryden were unanimously upheld in separate trial courts, and then again in the state’s appellate division. Tom West, who represents industry, knew a chance to breathe new life into his case challenging the town bans in the state’s high court was, in his words, “a long shot.” In 2012, the Court of Appeals heard just 64 cases out of nearly 1,000 requests for permission to appeal, or 6.4 percent. But because of the importance of the case, he filed an appeal anyway. The court announced on August 29th that it would hear the case.

With this in mind, you might expect that those who see Home Rule as a tool to discourage fracking in New York would be disappointed, maybe even crushed, by the possibility that clear-cut victories in lower courts could now be overturned in the Court of Appeals. But you would be wrong, at least if your source of information is Helen Slottje. Slottje is a principal attorney who represents the municipalities. It’s a role that positions her as an adversary to West in a case that brings a new level of visibility to both of their veteran careers. The Court of Appeals’ decision to hear the case gives the industry another chance. But, Slottje points out, it also gives Home Rule advocates a chance to remove any ambiguity that may have remained with lower court rulings. Without a definitive ruling from the high court, the door would remain open for other challenges and legal tacks in other districts.

“Lawyers might be interested in this dragging on. But it gets expensive and it’s a long process,” Slottje said. “There’s no quicker or easier way than having the course go to the Court of Appeals.”

On this point, West and Slottje have no differences.  “That’s a rare moment of agreement between us,” West said. “This will be definitive. However the Court of Appeals rules, that’s it. ”

Slottje and a colleague, attorney Deborah Goldberg of Earthjustice, have publically debated the case with West on various radio shows and at law clinics over the last year. I have participated in more than one of these events as a facilitator, and I’m now in the fortunate position of being invited to participate as a moderator in an upcoming clinic at the Albany Law School that will feature various legal points of reference on the future of drilling in New York State. The morning program promises a look at legal factors that will influence shale gas development, ranging from health impacts to property rights, with the afternoon session featuring the ground breaking Home Rule case as it advances to an even bigger stage. (I will moderate a panel in the morning program, and Capitol Pressroom host Susan Arbetter will moderate a debate between Goldberg and West in the afternoon session.)

The question at the core of the Home Rule case -- Norse Energy Corporation vs Town of Dryden et al. -- is whether the state’s Oil Gas and Solutions Mining law supersedes local laws when it comes to “regulation” of oil and gas operations. Lower courts have ruled in favor of the towns’ argument – based on precedent in similar cases involving jurisdiction over sand and gravel mines -- that banning something is different than regulating it. In other words, a local government can have a say of where and if gas wells are sited based on local land use plans, but not how they operate.

More than an abstract academic discussion, the outcome will influence the local landscapes for future generations. More than 150 municipalities have passed a ban or moratorium on gas drilling or fracking, according to FracTracker. It’s an area where the issues of fracking – with all its national and global ramifications – is brought tangibly down to the town board level. Whenever people – for or against fracking -- can see such a direct return on their civic engagement, it produces the kind of stories – stories with impact -- that journalistic sensibilities relish.

Both Slottje and West are cautious about reading much about the odds of winning or losing into the court’s decision to hear the case. There is no pattern in former rulings that suggests the Court of Appeals’ willingness to hear a given case predisposes it to overturning the decision of lower courts, with the record showing it upholds decisions with the approximate frequency that it overturns them.

“I think you can only read into this that it’s important for the court to clarify this,” West said.

The matter will be decided by the seven Court of Appeals judges, appointed by the governor to 14-year terms. (See their bios here.) The ruling is expected to come in the middle of next year, but the work has already begun. The schedule is yet to be announced, but if the case follows normal course of events, the petitioners, Norse Energy and Cooperstown Holstein Corp. (represented by West) have 10 days from the Aug. 29 announcement to file a preliminary statement of appeal, and 60 days after that to file briefs. Briefs from the towns of Dryden and Middlefield (represented by Slottje and Goldberg) are due 45 days after the industry’s briefs are filed. That means all the paperwork would have to be filed by the end of the year. Oral arguments would typically come five months later, or in May. Decisions are typically issued 40 days after oral arguments, which would be July.

The case could drag out longer, but that is unlikely, attorneys noted. The Court of Appeals, unlike other branches of government, has a reputation for sticking to schedules. There are other legal issues yet to be tested in courts, including the state’s (still undecided) administrative approach to regulate, permit, or ban shale gas wells while balancing public health and environmental concerns. By this time next year, however, the home rule case will be settled, even though fracking will undoubtedly remain a contentious political issue, with pending legislative and gubernatorial elections and an open door for legislative intervention