Livestock Weekly
December 8, 2011
Fracking Case Discussed During Recent Seminar On Groundwater
By Colleen Schreiber
AUSTIN — Over the last few years hydraulic fracturing has become a new favorite topic among popular media outlets. The technology is not new. However, prior to the discovery of the numerous new shale plays throughout the U.S., the slang word "fracking" was a term that few had actually heard of. Today, however, as one attorney says, fracking has become part of pop culture.
Most of the major news outlets, such as the New York Times and Time magazine, have written on the topic. It's been covered extensively on CNBC. There's even a movie, "Gasland" by Josh Fox, set to appear on HBO in 2012. It's an expose of sorts which attempts to tell the "real" story of what fracking is doing to the environment. There is a website for the movie, and Fox has his own blog where he invites fellow "fractivists" to take up the cause.
The topic has even made its way into popular TV series such as CSI, and Stephen Colbert did an entertaining piece on the topic as well. In Pennsylvania activists are attempting to educate children through the use of fracking coloring books.
The fracking story that has garnered the most attention in Texas, to date, is the one unfolding in Parker County in North Texas. It's known mostly as the Range case. The case was discussed by a panel of "experts" during a CLE International Texas Water Law conference back in September. Admittedly, the panel discussion might be considered one-sided in that no one representing the EPA was included in the discussion, though there was a representative from the Texas Railroad Commission on the panel.
David Jackson, an Austin-based attorney with the firm Jackson, Sjoberg, McCarthy and Wilson, LLP, served as the panel moderator. He started the discussion with an abbreviated synopsis of the issues of the case.
In 2009 Range drilled two gas wells in Parker County. In 2010 a nearby landowner found gas in his water well.
"There's no question there was natural gas in his water well," Jackson told listeners. "It's not a question whether the gas was there. The question is how did it get there, and where did it come from?"
The landowner complained to the Texas Railroad Commission and the commission began an investigation. However, from the landowner's point of view the RRC didn't act quickly enough, so the landowner also complained to the EPA.
Range, he said, cooperated early on. In August 2010 they began discussion with the landowner and their attorney and consultants. They also cooperated with EPA Region 6 voluntarily allowing them to come onto the Range property to sample the wells in question. They were also very open about the data that Range had already accumulated regarding those wells.
The EPA took a total of two samples, and based on their own in-house analyses determined that Range was indeed at fault. On December 7, 2010, the EPA issued an emergency order under the Safe Drinking Water Act finding that Range had caused or contributed to the contamination of the domestic water well in question.
The EPA also made a specific finding that the Railroad Commission failed to act. The RRC countered issuing a press release shortly thereafter saying that their investigation was ongoing and that it was premature to issue an order.
Nonetheless, a number of legal proceedings were spawned by the issuance of the emergency order. The first of which was RRC called for an administrative hearing to determine if Range had caused or contributed to the contamination of the two domestic water wells. Range was directed to appear; the EPA and the landowners were invited to participate, but both declined.
The day after the order was issued, Range put together the framework for a detailed investigation involving everything from the geology, hydrology, and history of gas in the aquifer, to gas fingerprinting, petroleum engineering and well integrity, and the hydraulic fracturing itself. Range also performed extensive groundwater sampling. It was the results of these findings that they used when they were directed to appear before the RRC in January.
Jackson offered some of the results of what Range found in that extensive investigation. First and foremost, they learned that water wells in the area were known to be flaring gas as far back as 2005 long before Range drilled their wells. In fact one particular water well that was flaring gas was only 800 feet or so from the Lipsky well; Lipsky is the landowner who filed the complaint with RRC and EPA.
"Nearby there is a public water supply for Lake Country Acres, and there are warning signs around this area which read, 'Danger Flammable Gas.' In the late 1990s one of the water wells had to be plugged because it produced gas in the water."
A video of a flaming garden hose was released to various media outlets to be used against Range, but what Range found through their own investigation was that the hose was not even connected to the source of the water. Rather, it was a vent hose.
"A vent hose vents the annular space where gas accumulates," Jackson explained. "There's a vent on there for a reason."
Ultimately, after an extensive hearing at the Railroad Commission and expert testimony by multiple witnesses, the Railroad Commission issued a final order finding that Range's evidence clearly demonstrated its wells did not contribute to any contamination of domestic water wells. Furthermore, the Commission found that the most likely source of gas in the domestic well in question came from the shallow Strawn formation, which lies just below the aquifer.
Following Jackson's abbreviated overview, a panel of speakers offered a more in-depth analysis of how Range Resources and those working on their behalf developed testimony and evidence to prove their innocence. John Riley, attorney with Vinson & Elkins LLP, started off with more discussion on the legal issues. Referring back to the EPA emergency order, he played part of a news clip of Alfredo "Al" Armendariz, EPA regional administrator for Region 6, a 2009 Obama appointee, who initiated the order.
In that clip Armendariz made a firm statement about how the EPA had proven that an emergency order needed to be issued. He talked about his personal enforcement philosophy being like that of the Romans, where you crucify the first five people you see, and then after that the town pretty well behaves.
"I've spent 28 years practicing law," Riley said. "Fifteen of those years were in some form of governmental enforcement, and I've never heard of anyone in that entire time, even the most zealous prosecutors in the DA's office, express themselves in such an irresponsible fashion."
Riley pointed out that hydraulic fracturing was exempted from EPA regulation in 2005. That exemption basically says that EPA does not have direct authority under the Safe Drinking Water Act for injection of fluids for the purpose of hydraulic fracturing unless diesel fuel is used as part of the injected fluid. Despite that, EPA, Riley noted, has engaged in a number of efforts, efforts other than Range, to indirectly or directly regulate hydraulic fracturing. For example, in Pennsylvania in May EPA issued information requests regarding current and anticipated wastewater disposal practices to six natural gas companies operating in the Marcellus Shale play.
"Lawyers can debate almost anything, and certainly I would give it a run as to whether EPA had the authority to engage in this informational request.
"Some might ask, 'What's the harm in allowing the government to have such information?' That's why I started with the news clip. That clip gives you an idea of why operators might be skeptical as to what the government is going to do with information provided."
Riley also showed a copy of an e-mail from EPA's Armendariz sent to colleagues in the environmental community, including the Environmental Defense Fund, WildEarth Guardians Public Citizen and Environmental Integrity Project, informing them that "We're about to make a lot of news." The e-mail was sent less than 30 minutes after Range was informed of the emergency order. In fact, EPA had already given news interviews and written a press release before Range was even alerted about the order.
Riley next offered a summary of the key provisions in the emergency order issued to Range. Those provisions included a requirement that Range notify EPA within 24 hours of their intentions. Additionally, they were to provide replacement potable water supplies within 48 hours, install explosivity meters in dwellings served by the domestic water wells within 48 hours, survey and identify the location of all private water wells within 3000 feet of the Range gas wells to EPA along with a plan to collect air and water samples from the wells within five days, and submit a plan to conduct soil gas surveys and indoor air concentration analyses of the properties and dwellings served by the domestic water wells within 14 days.
That wasn't all. Provision 50 (F), said that Range had to identify all gas pathways in the Trinity Aquifer, eliminate gas flow to the aquifer if possible, and rededicate areas of the aquifer that have been impacted. The Trinity Aquifer, he pointed out, runs through 55 counties, stretching from the Red River in North Texas through the hill country and on into South Central Texas.
According to Riley, this particular provision was the best example of EPA's overreaching.
Range Resources sought judicial review of the emergency order in the Fifth Circuit. The petition was filed in January and Range argued the case on October 3. Some of their key arguments as outlined by Riley are "the Order does not have the force of law and is not final; the Order violates Range's due process right, and the Order is arbitrary, capricious, an abuse of discretion or otherwise not in accordance with the law."
The court has yet to issue a ruling.
Range was also sued by EPA in the Northern District of Texas for enforcement of the order. At a June hearing the judge stayed the case and also stayed the accrual of penalty. Thus the government's enforcement action is stayed pending the outcome of the Fifth Circuit challenge.
Range won a discovery dispute in the U.S. District Court for the Western District of Texas. EPA was ordered to appear for deposition. In wrapping up his comments, Riley offered a list of what he termed "key admissions" by the EPA during that deposition. First, EPA admitted that they performed no evaluation of the geology of the area and other potential sources such as the Strawn formation, a much shallower, natural gas-producing stratum. They also admitted to ignoring their own experts, both internal and external, with respect to opinions pertaining to the limited isotopic analyses.
"Their fundamental position is that there wasn't gas in the wells until Range began its operation, so it must be that Range caused it, because after they began production, gas was found in those wells," Riley said.
The most "shocking" admission that came during the EPA deposition, he continued, was that the EPA personnel admitted that the administrative record submitted to the Fifth Circuit was incomplete. The EPA, Riley said, "cherry picked" the record submitted. For example, they failed to submit information which clearly showed that domestic water wells in the area were known to be flaring gas as far back as 2005.
Dr. Charles Kreitler, a hydrogeologist with Austin-based LBG-Guyton Associates, was brought in on the case in mid-December 2010. He followed up with still more details, calling it a "fascinating case" but definitely a "Chicken Little and the sky is falling type of issue."
"The technical community, in large part, believes there is not a problem, but rather that it is a perceived problem," Kreitler told listeners. "As a hydrogeologist it's hard to understand how a process that is occurring 5000 to 6000 feet below the surface instanteously migrates up to land surface," Kreitler commented.
He showed a seismic picture of the various formations of the area in question. Of most interest is the fact that the layer right below the cretaceous section, the section in which the aquifer resides, is the Strawn formation, a formation that is "loaded with natural gas." Kreitler also noted that some of the water wells in the area, in fact, reach down into the Strawn sands.
Water wells for the Lake Country Acres were drilled a decade or so prior to the two Range wells. Kreitler reiterated earlier speakers' comments about wells being plugged because they were producing so much gas. In fact, Range's investigation showed that 30 wells were sampled in the area of the problem wells, he said, and all of them had gas, though none of them showed exorbitant amounts of gas.
"We didn't see a plume developing that would be associated with a casing problem or with an emanation of natural gas coming from 5000 feet," he told listeners.
The hydrogeologist also talked about the level of use of the Trinity Aquifer, noting that it is a low-producing aquifer that has many people living upon it. Such heavy use, Kreitler explained, causes a "cone of depression." When this happens, the water level declines to the elevation of the pumps and the pumps start producing air, causing frothing.
"These wells were frothing because they were overproducing their aquifer."
Another result of a cone of a depression, he said, is that gas comes out of solution and goes into the annular space. State regulations require such wells to be vented. These wells are supposed to have a faucet on them so they can be opened up to blow the gas off.
He concluded his remarks by telling listeners that a lot of natural gas occurs within these formations, but that the releasing of such gas has nothing to do with the practices used in the oil and gas industry. The overlying, big picture issue, he concluded, is more about how water will be fairly allocated in the future.
"Do we have competition for water within the state? Yes. Are we going to have to start dealing with the Railroad Commission and the groundwater conservation districts to figure out how we fairly allocate the use of water for fracking and other uses? Yes."
One solution which Kreitler concluded with is to use more brackish water for such things as fracking wells.
Dr. Mark McCaffrey, Weatherford Laboratories Inc., offered a presentation on a complicated topic dealing with geochemistry and gas fingerprinting. Gas fingerprinting, he explained, is the process of using the composition of a gas, either molecular or isotopic, as a tool to assess the origin of stray gas.
In simplified terms, the general order of activities that happens in a gas fingerprinting case would be to first identify the candidate sources of stray gas. The next step is to identify compositional characteristics that distinguish the candidate gas sources and then measure that characteristic in the stray gas, and finally, see if that stray gas is a match to one of the candidate sources.
In the Range case McCaffrey and his team of scientists determined that there are gas occurrences in the deep Barnett but also in the shallower horizons, particularly the Pennsylvania horizon which includes the Strawn, just below the aquifer. The scientists collected samples from the two Range wells, and they collected samples from 25 different water wells in the same general vicinity. Next they looked at all the molecular and isotopic characteristics to find something that separated the different candidate sources in order to link the stray gas back to one of the sources.
EPA used the same technique, but according to McCaffrey, they used it inaccurately. He also pointed out that EPA's "extensive" analyses amounted to two samples. EPA looked at the isotopic composition of one sample from the water well, and a sample from the landowner's water well as well as a sample from one of the Range wells. They found the samples were thermogenic, not bacterial. They then jumped to the conclusion that the gas coming from the water well must be coming from Range's well.
"What they didn't do was they didn't bother to look to see if these characteristics separate Barnett gas from the other candidate sources," McCaffrey noted.
He wrapped up his comments with some key conclusions based on their own study. Those conclusions are as follows:
— The approach used by the EPA to correlate the Lipskys' gas sample to Range Resources production was fundamentally flawed. The carbon isotopic composition in methane does not differentiate gas in the Barnett formation from gas in much shallower formations such as the formation immediately below the aquifer — the Strawn formation.
— Using the EPA reasoning, methane carbon isotopes would lead one to erroneously conclude that the Range Resource wells are the source of the gas in the Hurst water well — a well that flared gas in 2005, four years before the Range Resources wells were drilled.
— Nitrogen and carbon dioxide concentrations can be used to distinguish Barnett Formation reservoir gas from Pennsylvanian Strawn reservoir gas — specifically high nitrogen/low carbon dioxide samples are characteristic of gasses produced from Pennsylvanian reservoirs.
— Elevated nitrogen in a headspace gas sample from the Lipskys' well indicates derivation from Pennsylvanian reservoirs, NOT the Barnett Formation.
— The Butler Bradenhead gas sample is a mixture of microbial gas and nitrogen-enriched thermal gas from a Pennsylvania reservoir.
— The fact that the Butler Bradenhead gas is derived from Pennsylvanian reservoirs and not the Barnett formation is not consistent with migration of Barnett reservoir gas to shallower reservoirs along the well path.
— Gas migration into the aquifer was not a single event but rather seepage that has occurred over a long period of time, as indicated by the observation that most of the aquifer water samples contain thermal gas that has been incompletely metabolized by microbes.
http://www.livestockweekly.com/papers/11/12/08/
