Fossil Fuels Dimock fracking Pennsylvania

Published on March 11th, 2016 | by Tina Casey

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Dimock Fracking Water Pollution Case Rains More Pain On Oil And Gas Industry

March 11th, 2016 by  

After six years and many reams of legal papers, two couples have just won a rare — and huge — $4.24 million jury verdict against a fracking company. The jury agreed with the evidence that Houston-based Cabot Oil & Gas Corp. contaminated their water wells in Dimock, Pennsylvania, with methane leaching underground from natural gas fracking sites. The case is significant because the two couples fought in court rather than go the usual route in fracking water pollution cases, which consists of reaching a financial settlement conditional on consenting to a gag order.

The gag order practice has been known to impose a lifelong vow of silence on children as young as 7 and 10, and along with trade secrets protection it is one of the reasons why fracking critics and regulatory agencies have had quite a bit of difficulty assembling a complete picture of the risks and impacts of fracking on the nation’s water resources.

Dimock fracking Pennsylvania

Fracking in Pennsylvania

Pennsylvania is a fracking hotspot in the US, encompassing big chunks of the Marcellus and Utica shale formations within its borders. Until recent years, fracking (short for hydrofracturing) was virtually unknown there and other Marcellus states, but new drilling technology and a healthy dose of trade secrets protection unlocked a drilling boom after the Bush Administration created a loophole in the Clean Water Act.

The loophole enabled a patchwork of state regulations to take control, which range from fracking moratoriums and outright bans such as those in New York State and Maryland, all the way down to a free-for-all situation in Pennsylvania.

Fracking in Dimock, Pennsylvania

Our friends over at DeSmogBlog have been tracking the Dimock fracking case closely:

The case, Ely v. Cabot Oil and Gas Corp., is especially noteworthy because most of the 44 original plaintiffs in the case signed settlement agreements that included a “non-disparagement clause” that bars them from speaking about their experiences or the role that Cabot may have played in causing water in the region to become polluted…

According to DeSmogBlog, a big breakthrough in the case occurred when the court granted permission to testify for other nearby homeowners who had signed the gag order with Cabot.

The Associated Press has also been doing some notable reporting on the impacts of fracking. An account of the new $4.24 million verdict by Michael Rubinkam describes Cabot’s argument, that the “methane was naturally occurring” and predated the fracking operation.

That argument highlights one of the critical obstacles for bringing a water pollution case against fracking operations. At the time of the drilling, state regulations in Pennsylvania and elsewhere did not require drillers to benchmark water quality in nearby wells, leaving those impacted without the benefit of a before-and-after comparison.

Nevertheless, as described by Rubinkam the jury found that there was a compelling connection between the start of fracking and water quality problems in the area:

Residents first reported problems in the wells in 2008. The water that came out of their faucets turned cloudy, foamy and discolored, and it smelled and tasted foul. Homeowners, all of whom had leased their land to Cabot, said the water made them sick with symptoms that included vomiting, dizziness and skin rashes.

A state investigation found that Cabot had allowed gas to escape into the region’s groundwater supplies, contaminating at least 18 residential wells.

Cabot is planning to appeal the case but things don’t particularly look so good for the company. Apparently a drilling ban for Cabot is already in effect in the area and the chances of lifting that are dim.

According to a National Public Radio member report on the Dimock fracking case, last month the Pennsylvania Department of Environmental Protection had this to say:

Until they have demonstrated they are in compliance with the law, that the gas migration is over, they will not be permitted to drill in the nine-square mile area.

Ouch!

A Long Road Ahead For Fracking Cases

Despite the extreme health impacts alleged by the residents, the $4.24 million award was handed down only for property damage and “personal nuisance” suffered by the two couples.

The fracking related health claims were tossed before the case went to trial, along with claims of fraud and breach of contract involving the drilling leases signed by the property owners with Cabot, in agreement with a previous finding from April 2014.

The decision was issued in 2014, as described by the Pittsburgh Post-Gazette:

Judge Jones dismissed claims against Cabot for breach of contract, lost royalties, fraudulent inducement, negligence per se, medical monitoring, personal injury and certain negligence claims involving minors.

That doesn’t leave much to chew on, especially since the judge also sided with Cabot and left the company’s consent decrees with the Pennsylvania DEP out of evidence. Those orders were based on DEP’s finding that some of Cabot’s wells may have been “negligently constructed.”

It’s also worth noting that the breach of contract item was thrown out because the contract signed by the property owners did not require Cabot to test their wells before drilling on their property.

That doesn’t look so good for future fracking cases that involve alleged health impacts, so if you’re familiar with the legal issues, drop us a note in the comment thread.

Evidence Piling Up Against Fracking

On the other hand, issues related to improper depth, siting, and outright negligent fracking well construction may come into play as the industry comes under increased scrutiny.

A recent report from an industry-friendly natural gas research hub Stanford University took stock of the gas migration and water contamination issue, and concluded that the potential for methane to leach from fracking sites into wells and aquifers is quite small compared to the number of fracked wells in the US.

However, the research team logged two notable instances where there is a high potential for water contamination. One consists of drilling sites that are relatively shallow, and there are thousands of such sites in the US.

The other instance where water contamination can occur is when fracking wells are not constructed properly. The team noted one particularly egregious example where only the top and bottom of a deep well were properly encased, leaving a 4,000-foot stretch that “allowed gases to move up and down freely like a chimney and contaminate the drinking-water supply.”

Fracking And National Water Resources

In a long-awaited fracking assessment released last summer, the US Environmental Protection Agency noted that significant knowledge gaps, combined with a restrictive scope of work for the report, forced it to conclude that it could not determine any “widespread, systematic” impacts on drinking water resources.

Many observers hailed the report as vindication for fracking, but EPA clearly framed it within a cry for help, pleading for more information. Researchers, including the agency’s own Science Advisory Board, have been responding with vigor as described by Bloomberg last month:

Science advisers reviewing the EPA study said Monday the agency’s description isn’t good enough. During a six-hour teleconference, the Science Advisory Board review panel parsed the language, zeroing in on the phrase [“widespread, systematic”] as too vague and ambiguous to serve the public. A repudiation of the EPA’s conclusions could reignite debate over fracking and drive calls for more regulation.

[snip]

The 31-member review panel is on track to ask the EPA to revise its top-line finding…

The panel will release its recommendations later this year, so fasten your seat belts.

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Image: via US Geological Survey.


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About the Author

specializes in military and corporate sustainability, advanced technology, emerging materials, biofuels, and water and wastewater issues. Tina’s articles are reposted frequently on Reuters, Scientific American, and many other sites. Views expressed are her own. Follow her on Twitter @TinaMCasey and Google+.



  • Matt

    A little scale here $4.2M verdict and a ban to fracking in a 9 square mile area (PA is 46,055 mi**2). So this is a very tiny victory. It is only meaningful it it least to a massive spread of similar suits. Ohio is also a mess, governor banned local governments from restricting fracking.

  • MrL0g1c

    “The gag order practice has been known to impose a lifelong vow of silence on children as young as 7 and 10”

    I don’t see how this can be legal, as soon as the children reach adulthood they can claim they weren’t old enough to agree to the contract.

    Ps, what next, children taking on their parents debts when they die, written in contract?

  • Otis11

    Wow, the ignorance of the industry in the comments is palpable.

    Guys, Fracking is not the problem (sure it’s not great, but it’s not the problem here). The problem is *Negligence* in while fracking. Actually, negligence in any industrial process creates huge issues. When done correctly, the risk is minimal – but many of the small companies are incompetent.

    Banning fracking isn’t the answer – we simply need some common sense regulations (such as before-and-after water testing) to allow people to prove a very strong association and allow for a court-order to test against chemicals used to prove causation – and then to hold the incompetent/negligent companies accountable. Make incompetence financially detrimental and only the competent companies (of which there truly are a few) will continue.

    And before I get burned at the stake – I am very big on clean energy and EVs. Just go look at my past comments. I just really dislike misinformation and mudslinging. It solves nothing.

  • joe bambino

    Seems fun that a process that causes earthquakes & disturbs the water table is so well received in our state legislatures. I don’t know this for fact, but a lot of money must be changing hands

    • Bob_Wallace

      Not changing hands in the sense of elected officials accepting bribes, I suspect. But in terms of lots of instate business, lease payments to landowners and jobs created.

  • Larry

    Once again the human species is fouling it’s own nest

  • sjc_1

    Frackers inject the water two miles down with all kinds of “proprietary” fluid then pretend it will have no effect. They get earthquakes now in Oklahoma.

  • J.H.

    All fracking and drilling leases, prior and past, should have mandatory policies in place that regulate water and air samples. With emphasis on (LIABILITIES) and releases any GAG Order for violations. This cost would be placed upon the oil companies. This must be written in to all State laws, so that the EPA then has local jurisdiction over all violations. Taking the fight into state and federal courts.

  • neroden

    Pretty much *all* fracking-for-gas companies are criminally negligent and irresponsible, failing to do their well casings properly, etc.

    This is because if they did it *properly* the wells would be unprofitable. They need to cut corners in order to make any money.

    • Otis11

      This is simply not true. I am quite familiar with the O&G industry, and let me say this:

      The majority of *Companies*, in my experience, are likely (possibly criminally) negligent. (but this is due to the huge amount of mom&pop shops that have no idea what they’re doing)

      The majority of *Wells*, in my experience, are cased correctly. (Due to the fact that the larger companies tend to do it correctly and have the majority of the wells)

      Now here’s the really important part – *Properly casing a well adds minimally to the expense of well construction.* The vast majority of the costs of a well are rights and royalties, exploration, drilling, engineering costs and infrastructure, a few more things, and then proper casing.

      The cost of proper casing is so marginal there’s no reason to cut corners there. The reason it occurs is because of incompetence, not malice.

  • Brian

    So now chemicals have contaminated and poisoned well water, and still people defend fracking. We don’t need natural gas as a bridge fuel. The health of our water is more important. We can still continue to close dirty coal plants, by building a massive amount of small decentralized solar power plants and wind farms. Solar on residential homes and businesses can also be greatly expanded. This notion that we must accept Natural gas as a bridge fuel until we can go 100% renewable, is a false belief. Natural gas fracking causes earthquakes, and is dangerous to our water supply. We can build wind farms and solar power plants in 18 to 24 months. Their is no need to use dirty polluting natural gas, under the phony excuse that using dirty coal is the only other viable option. Solar and wind can replace all dirty coal. Intermittency can be solved by a dramatic expansion in residential solar, and building a massive number of decentralized wind farms and solar power plants connected to the grid.

  • eveee

    Fracking companies are setting themselves up as big tobacco equivalents.

  • Stephen YCheck

    Thanks for the article. My family elders just sold their mineral rights in pa. I hope this doesn’t happen to their lands.

    • neroden

      Keep fracking out of the county if you want to save your family farm. If you’re near the border, keep it out of the next county too. Do whatever it takes.

      The frackers are crooks looking for easy marks, so they actually tend to give up if there’s a concerted fight against them from the locals.

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