The Battle of Frackistan

A Real World Account of What it Means to be a Victim of the U.S. Fracking Boom

As printed in The Forum, newspaper for the St. Johns University School of Law.

As printed in The Forum, newspaper for the St. Johns University School of Law.

What would you do if you bought your perfect home: acreage, creeks, waterfalls, home office, studio, gardens and orchards, gourmet kitchen and solitude; then your neighbors decided to lease their minerals to the oil and gas industry turning your entire neighborhood into an industrial zone? A place where roads crumbled and eroded under the weight of big rigs every day and your car suffers hundreds of dollars of suspension damage every six weeks. The hills you watched come alive each spring with wildflowers; honeybees and small waterfalls were sheered off and flattened to create roads for larger scale trucks and new industrial zones. Where your lifestyle was not only disrupted but also turned upside down with the onslaught of the oil and gas industry surrounding your property.

If a state’s minimum environmental regulation for the oil and gas industry is measured by the federal government, the system’s been rigged since the 70’s and more recently, 2005, thanks to the Energy Policy Act. If you happen to own property in West Virginia where the general consensus is that there are too many environmental regulations for big business, then you might want to take the time to understand just how these policies, or more accurately, exemptions, will affect your livelihood should pipelines and frack pads come to your area. And so it was, with little academic experience in the art of studying law, my friends and I scoured state bills, federal laws, real estate laws to build armor in the frack fight for our right to the pursuit of happiness. Not a single one of us ever wanted to know what we now know, but life is funny that way. One day you’re blissfully tending to your gardens, working your job and in some cases enjoying retirement, the next day bulldozers and heavy trucks running 24/7 move in altering the landscape of sight and sound in an instant. At that moment, you realize, life on your property will never be the same because your neighbors sold out their pipeline access and mineral leases. Their actions have now lowered your property values, quality of life, health, and well-being.

Eight months ago I left the West Virginia battlefields of Frackistan after a long arduous battle that culminated in a deal with the very industry I was fighting against. It wasn’t what I had planned particularly since the remodel of my then dream home was completed only a year before. We had moved to the back hollers of West Virginia 10 years ago, leaving behind drought stricken California for a new life with 95 acres and an abundance of artesian spring water. Prior to the move to West Virginia, we spent five years planning and researching zoning rules that would enable us to build a straw bale workshop and test other sustainable theories including thermal mass for season extension of food crops, local food initiatives, renewable energy and micro hydro. Unfortunately, with our focus on sustainability and ample water we failed to do our own due diligence on the sociopolitical history of West Virginia.

The onslaught of fracking trucks create crumbling infrastructure.

The onslaught of fracking trucks create crumbling infrastructure.

As each mineral owning neighbor leased to oil and gas companies, well pads were permitted. With each new well pad or pipeline, brought complete destruction of simple infrastructure: roads, phone lines, electrical interruptions, as well as quality of life issues. Sharing the small country roads with a variety of oversized commercial trucks meant putting your own life in danger simply driving anywhere. Since the roads in rural areas were never built for this kind of traffic, the issues were sweeping: roads not wide enough for truck and car to pass safely; oil and gas industry employees routinely driving on the wrong side of the road, in a blind curve with a 20 foot or more drop over the side and no guard rail. It is remarkable that more citizens have not perished in the process; many were not so lucky.

With the onslaught of pre-fracking issues in what was once a sleepy area, dinner parties became a hot bed for legal discussions. Attendees were not lawyers, nor did we have any intention of becoming one but all came to the table armed with the latest policy revelation. No one truly grasps the need for understanding policy until one’s own property comes under attack. And nothing is more shocking to realize the fact that the policies in place are not to protect the private citizen’s right to the pursuit of happiness but to the right of a wildcatter extracting the minerals that lay beneath one’s private property.

What is fracking? Fracking, also known as, high volume hydraulic slick water fracturing is a form of extreme extraction for natural gas. While proponents claim fracking has been in use for over 60 years, this style of fracking is relatively new. First implemented in the 1990s in Texas and put into place in Pennsylvania by 2005, the fracking boom took root fast transforming rural areas. This isn’t the old pump jack system…this rig takes up to nine acres covering many feet of gravel, with several bore holes (up to 12), each stretching horizontally a mile underground in different directions. The large patch of gravel is known as the “well pad”, and boreholes become fractured horizontal wells. A well pad can have up to 12 wells on one pad. Each single well is injected with extreme high pressure with up to 7 million gallons of fresh water (fracked). This fresh water never returns to the natural cycle because it is combined with over 60 tons of chemicals including known carcinogens and endocrine disruptors, such as diesel fuel, petroleum distillate, formaldehyde, benzene, toluene, ethylene glycol monobutyl ether and styrene just to name a few. Inclusive to this process is the use of explosive charges into the boreholes to enable the toxic fluid to flow out into the shale and release the gas.

Real World Scenario of Fresh Water Usage:
If a new well pad has 12 wells, and each well is fracked with 7 million gallons of fresh water plus 60 tons of chemicals up to 18 times simple math and worst case scenario suggests the following:

12 x 7 million gallons of fresh water =
84 million gallons of fresh water x 18 =
1.5 billion gallons of fresh water never returning to the natural system. 

Add to that 12 x 60 tons of chemicals = 720 tons of chemicals or 1.4 million pounds of chemicals x 18 =
25.2 million pounds of chemicals or 12,600 tons injected into the earth at high pressure with the added propensity to spill on top of the earth as well.

For the record, some well pads have less than 12 wells and sometimes use only 5 million gallons of fresh water per well per frack while other fracking companies use between 80 and 300+ tons of chemical mixture.

If a rural property owner finds him/herself in a frack fight here are a few things to know:
Every lawyer in their small town has done some work for the oil and gas industry; therefore it would be a conflict of interest for said lawyer to help you if an oil company wants to come onto your property. (Knowing this could be a remarkable business opportunity for some new lawyers looking for both work and feathers in cap: become a lawyer for property owners affected by fracking – it’s a wide open field)

Federal regulations are skewed to protect Oil and Gas; not people who drink water, eat food or breathe air. Strikingly this includes those who may consume water and food and work in the gas industry.

The following are the environmental statutes which Oil and Gas are exempted:

  • Comprehensive Environmental Response, Compensation and Liability Act (CERCLA)
  • Resource Conservation and Recovery Act (RCRA)
  • Safe Drinking Water Act (SDWA)
  • Clean Water Act (CWA)
  • Clean Air Act (CAA)
  • National Environmental Policy Act (NEPA)
  • Toxic Release Inventory under the Emergency Planning and Community Right to Know Act (EPCRA)

What could possibly go wrong in a community where fracking has taken over, given that the policies that should protect those vulnerable from this extraction method exempt the very industry that has turned many a small town into one large industrial wasteland? How can property owners who do not want this activity in their backyard protect their investment?

Let’s look at real world scenarios through personal experience one exemption at a time.

Beginning with the Comprehensive Environmental Response, Compensation and Liability Act (CERCLA) and how an exemption might thwart the safety and well being of those who live in homes. According to the Environmental Defense Council: Congress enacted CERCLA in 1980, creating a framework for cleanup of toxic materials through creation of the Superfund Program. In a political compromise, the oil and gas industry was taxed in order to pay into the Superfund and in exchange was exempted from CERCLA’s requirements. The tax expired in 1985, but the industry continues to enjoy the exemption.

Lisby-tank-farm2

The Lisby Pad in Tyler County, West Virginia. As the crow flies was 2 miles from the old farm. Located over the hill, in a former hayfield.

Real World Scenario: As the crow flies, two miles away from my old farm was a well pad located on a former hayfield. It sits approximately 65 feet from a creek that feeds into the main creek that supplies drinking water to the local town. Just after New Years Day in 2014, the well pad exploded, sending large tanks flying into the air and landing across the field. This explosion caused massive spilling of wastewater and unused chemicals onto the hay field where it flowed directly into the creek. If oil and gas are exempted from cleanup of toxic materials, then where does the responsibility lie? Would it be the homeowners who didn’t want the well pad on their property to begin with or the mineral owners who leased?

The plight of mineral owners vs. surface owners: All states are split estate, where property rights for both surface and minerals can be split between two parties. However, if the homeowner is lucky, they own both minerals and property. Most times, sadly, the minerals are split between many heirs of the original mineral ownership. These heirs can date back more than 100 years and many don’t live in the state where they own said minerals. Louisiana is the only state which holds that, if the mineral owner is not engaged in the production of said minerals, then the minerals revert to the surface owner (a small caveat that would have been a game changer to many property owners embroiled in fracking battles across the country).

Resource Conservation and Recovery Act
The RCRA of 1976 defines and subsequently regulates “solid waste, or combination of solid wastes, which because of its quantity, concentration, or physical, chemical, or infectious characteristics may- A. cause, or significantly contribute to an increase in mortality or an
increase in serious irreversible, or incapacitating reversible, illness; or B. pose a substantial present or potential hazard to human health or the environment when improperly treated, stored, transported, or disposed of, or otherwise managed.”

Sadly, Oil and Gas waste is exempted including the following: produced waters, drilling fluids and mixtures and associated other waste from drilling and production

Real World Scenario: Drill cuttings have been shown to contain high levels of radiation, carcinogens and endocrine disruptors. West Virginia passed a bill that allows unfettered dumping of cuttings from well pads into municipal landfills. With the federal regulations exemptions, it is perfectly within the states right to permit gross negligence for local landfills.

According to a research report published by Earthworks, the West Virginia Department of Environmental Protection does not require oil and gas operators to dispose of solid waste at specialized facilities, allowing them to instead take drilling waste to municipal landfills. Yet West Virginia does not have regulations related to the radioactive content of oil and gas waste. According to WVDEP, rules on Naturally Occurring Radioactive Material (NORM) and Technologically Enhanced Naturally Occurring Radioactive Material (TENORM) are not being applied to the oil and gas waste stream.
In case you’re curious, the other states are who fail to manage oil and gas waste are New York, Ohio and Pennsylvania.

Safe Drinking Water Act
The SDWA was created 41 years ago to protect water sources either above or below ground used for drinking water (human consumption). However, in 2005, the SDWA was amended in the Energy Policy Act with four items in the amendment that weaken the SDWA and creates at least four exemptions, allowing oil and gas from doing the right thing for generations to come. From the Oil and Gas Accountability Project:

  1. Hydraulic fracturing (fracking) operations were completely exempted from regulation under the SDWA.
  2. The Energy Policy Act asked for the voluntary discontinuance of diesel fuel use in fracking operations in lieu of seizing the opportunity to ban diesel fuel use altogether.
  3. “Underground injection” in oil and gas operations was defined so as to alleviate the EPA from regulating threats to drinking water from fracking fluids unless diesel fuel additives are used (this remains a discretionary regulation of diesel fuel additives on the part of the EPA).
  4. The last prong of the exemption simply provides more legislative support for the EPA’s decision to not regulate fracking operations even if diesel fuels are being injected into underground drinking water sources.

Real World Scenario: Six miles from my old farm, several private home water wells were contaminated with methane and diesel fuel including trace radioactivity. The closest well pad to these homes was situated on the other side the hill. While this contamination could have been caused by any number of the well pads in the area, one could question whether a horizontal leg or two that went under the hill from the closest well was the culprit. Who is responsible for the remediation this problem? If Oil and Gas are exempt then is it the mineral owners who have culpability? Or, is it a “life’s not fair” scenario for property owners who will no longer be able to sell their biggest investment? Since it is impossible to send divers down into the earth to follow the fractures from these well pads, how can a property owner clearly identify which well (Oil and Gas Company) caused the contamination? Exactly how do these exemptions help anyone who lives anywhere near these operations? They don’t; it’s clear they weren’t designed to.

Real World Scenario: In the state of West Virginia, the municipal water facilities test for very basic organic contaminants like E. coli and salmonella once every five years for radiation. Due to the radioactive and proprietary nature of frack fluid ingredients (750 chemicals) these municipal water sources have no idea what to test for. Testing for all 750 chemicals that may or may not be used in surrounding fracking operations is cost prohibitive. If a municipal water supply tested for radioactivity a year prior to any radioactive contamination, the municipality would have to wait four years to test again, what happens if contamination occurs in year three? Does any legislative entity have any accountability for the health and safety of those consuming municipal water when the oil and gas industry comes to town?

Clean Water Act
According to Earthworks and Oil and Gas Accountability Project, in 2005, the Energy Policy Act amended the CWA to provide that sediment is no longer considered a pollutant. The broadened exemption provided for in the 2005 Energy Policy Act applies to all oil and gas field construction activities and operations, including those necessary to prepare a site for drilling and for the movement and placement of drilling equipment.

For some reason, some powers that be think it's okay to build fracking operations on or near flood plains.

For some reason, some powers that be think it’s okay to build fracking operations on or near flood plains.

Real World Scenario: In West Virginia the average annual total for rainfall is 240.02 inches. Flash flooding is a common occurrence in many of rural areas. Large waste pits and sediments from well pads are not immune from rain or flash flooding. Often times, these open waste pits overflow onto soil, which seep into soil down into underground water supplies, flow into creeks, streams and rivers. This exemption makes testing for contaminants in soil and waterways futile while endangering the lives of those in the areas.

Clean Air Act
Regulates air emissions from area, stationary, and mobile sources the CAA limits emission of pollutants into the atmosphere in order to protect human health and the environment from the effects of airborne pollution. – Yet again oil and gas are exempted.

Real World Scenario: There is no requirement for the aggregation of air pollution data around well sites. Without aggregating the data, one could be led to believe that the pollution emitted into the air in rural areas have a negligible impact.  For example:

In Doddridge County, WV there are 3,221 wells and 10 compressor stations each possibly emitting (according to WVDEP)
144 lbs per/day, 6 lbs per/ hr, 10 tons per/yr. Aggregating this data to reflect a combined total 3,221 wells + 10 compressor stations x 10 tons of air pollutants per year = 32,310 tons (64.6 million pounds) of air pollutants emitted in a single year in a single county in rural West Virginia. One must factor in the air pollutants, such as radiated and chemical laden silica dust from fracking flares, smoke, vapors and dust which hang low in the hollows taking a long time to dissipate and particulates resting in people’s lungs and on the ground.

This issue is compounded by the fact that the particulate matter of silica dust, when inhaled, causes silicosis.While OSHA has strict regulations on workers who work around silica, OSHA does not oversee those living near fracking operations and who are exposed to the harmful levels of silica. With the exemption from the Clean Air Act, who is accountable for any silicosis cases of those who live within the fracking area?

National Environmental Policy Act
According to the Oil and Gas Accountability project: The Energy Policy Act of 2005, Section 390 significantly hampers the opportunity for public involvement in major oil and gas activities in contravention to the original intentions of NEPA by allowing federal agencies to permit oil and gas operations more easily, and more significantly, without having to consider or address the concerns of nearby landowners.

Real World Scenario: Remember in the beginning of this article I said the system was rigged?

Toxic Release Inventory under the Emergency Planning and Community Right to Know Act (EPCRA)

Oil and gas are exempted under the EPCRA from reporting toxic releases from air, land and water. Due to these exemptions, it is difficult for health practitioners to find out what their patient was exposed to.

Real World Scenario: I didn’t know at the time I was drinking water laced with acetylene, I have no idea exactly how long. However, given my clean water sample from Duke University, then several months later, one from the oil and gas company with not so good results. It is possible I could have been ingesting acetylene for at least 6 months. While it is clear that my oil and gas funded water test found acetylene, what is the likelihood that the Oil and Gas Company would be found culpable? Are there medical practitioners who are prepared to monitor the multitude of toxic exposures people have when living next to these operations? Given the exemptions under this act, how can anyone be sure what the doctor is allowed and isn’t allowed to test for?

In 2013, the Wall Street Journal analyzed population data centered on oil and gas operations and found that 15 million people live within one mile of fracking. Every single person living around these zones appear to have no federal protection or oversight to their air, water and land. Some may say, this is only 4% of the population, collateral damage happens on the heels of prosperity and “energy independence”. But consider this: while only 4% of the population is currently affected by this industry, 11% of all organic farms in the US are near fracking operations. This means that while rural areas are the most affected, these same rural areas are where city food is grown.

The question to you, the reader, then becomes:

Would you like your organic kale with or without radiated silica dust?

Or perhaps I can interest you in some diesel fuel infused Cabernet Sauvignon?

Clearly, collectively, we must re-examine these environmental policy exemptions – if for nothing else for the health and safety of generations to come.

NOTE:  This article appeared in The Forum, a print only newspaper for the St. Johns University School of Law.  Many thanks to the outgoing Editor-in-Chief, D. Shawn Burkley for the opportunity.