Searching For Science In Marcellus Shale Decisions (Law360)

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Law360, New York (October 20, 2010) -- Along with lower energy costs and new jobs, investment in the development of natural gas resources in the Marcellus Shale formation in Pennsylvania has brought claims of groundwater contamination and litigation to the commonwealth. Marcellus Shale development has also precipitated increased scrutiny by federal and state lawmakers and regulators.
Critical and scientific evaluation of reports and other information concerning the potential link between Marcellus Shale production activities and environmental problems is essential to reasoned decisions in the courtroom and in setting public policy for this industry.

Recently, 13 families in Lenox Township, Pa., filed a lawsuit in Susquehanna County Court in which they allege that hydraulic fracturing  a natural gas production method that involves pumping fluid and sand into a rock formation under pressure to open cracks in the rock and allow gas to flow to a well  has contaminated their drinking water supply and made them ill.
In support of their claims, the families cite the results of testing performed on their water wells which show elevated levels of barium, manganese, strontium and iron.[1]
Seventeen families in Dimock, Pa., have filed a lawsuit for contamination of their water supply. They claim that drilling and operation of natural gas wells near their homes caused methane and various chemicals to flow into their wells.[2]
A Washington County resident has claimed that hydraulic fracturing of gas wells on his property resulted in elevated levels of arsenic, benzene and naphthalene in his groundwater.[3]
Media reports of landowner complaints alleging problems with drinking water wells due to nearby Marcellus Shale operations abound. Like the lawsuits, reports by media leave one with the impression that Marcellus Shale drilling and production operations have caused widespread problems.
In fact, the Pennsylvania Department of Environmental Quality (PA DEP) has found that the opposite is true. The PA DEP’s Marcellus Shale Fact Sheet notes, “Disruption of water quality or flow in water wells from drilling activities is often rare and generally temporary.”[4]
PA DEP Secretary John Hanger has also observed that his office has not found any instance in Pennsylvania where hydraulic fracturing fluids injected into the Marcellus Shale have contaminated an underground source of drinking water.[5] In addition, according to Secretary Hanger, problems with gas migration into water wells are not new or the unique result of Marcellus Shale drilling.[6]
Speculation about a possible connection between hydraulic fracturing and groundwater contamination, and the potential for Marcellus Shale production to generate waste containing naturally occurring radioactive materials (NORM) have fueled opposition to drilling, production and waste management practices, as well as lawsuits.
For example, the State of New York imposed a moratorium on new drilling in the Marcellus Shale formation.[7] In justifying the moratorium, the bill’s sponsor noted only possible, but unidentified, “catastrophic effects on our natural resources and families” and concluded, without support, that hydraulic fracturing chemicals injected into the Marcellus Shale formation “work their way into the regular water supply.”[8]
The Delaware River Basin Commission also imposed a de facto moratorium on drilling, requiring that all natural gas extraction projects in shale formations within designated areas of the basin receive commission approval; approvals will not be granted until after the commission adopts new rules.
In announcing this policy, the Delaware River Basin Commission executive director noted simply that natural gas extraction projects in the Marcellus Shale formation in areas of the basin “may individually or cumulatively affect the water quality ... by altering ... physical, biological, chemical or hydrological characteristics” of waters in those areas.[9]
So far, the U.S. Environmental Protection Agency has responded to recent concerns regarding the impact of hydraulic fracturing on human health and the environment in a deliberate manner.
Presently, although subject to regulation by state oil and gas and state, and some federal, environmental regulations, hydraulic fracturing and management of those fluids is exempt from the EPA’s authority pursuant to the Safe Drinking Water Act. The Energy Policy Act of 2005 specifically excluded underground injection for purposes of hydraulic fracturing from regulation under the Safe Drinking Water Act, except where it involves injection of diesel fuels.[10]
Nevertheless, prompted by recent public concerns regarding hydraulic fracturing, Congress instructed the EPA to conduct a scientific study to investigate the possible relationships between hydraulic fracturing operations and drinking water.[11]
The mandated study is not the EPA’s first effort to evaluate hydraulic fracturing’s potential impact on drinking water. Between 1997 and 2004, the EPA investigated the potential impacts to drinking water from hydraulic fracturing in coalbed methane reserves.
The EPA’s investigation included review of more than 200 peer-reviewed publications, interviews with 50 employees from state or local government agencies and input from approximately 40 citizens who expressed concern that coalbed methane production had impacted their drinking water wells.[13] The EPA found no evidence suggesting that the fracturing of shallow coalbed methane wells had contaminated drinking water wells.
Given the significant investment in planning and efforts to solicit input regarding the study’s design and scope,[14] the EPA’s new study promises to yield scientifically reliable data concerning the costs and benefits of Marcellus Shale development. Such data is vital to reasoned policy and judicial determinations.
When groundwater contamination claims reach the pretrial motion and trial stage, state and federal court rules for admission of expert opinions and requirements for proof of elements of groundwater claims should serve as a limit on the influence of media reports and political agendas on the outcome of these cases.
Courts applying Daubert v. Merrell Dow Pharmaceuticals Inc., 509 U.S. 579 (1993), examine whether scientific evidence will assist the trier of fact and whether the evidence is the product of a reliable and scientifically valid methodology. Pennsylvania courts use a different, but related standard, outlined in Grady v. Frito-Lay Inc., 839 A.2d 1038 (2003) (holding that scientific evidence is admissible if the methodology underlying it has general acceptance in the relevant scientific community and that judges should be guided by scientists when assessing the reliability of a scientific method).
These rules prevent the admission of scientific evidence which is not the reliable product of generally accepted scientific methods and exclude consideration of opinions offered by unqualified lay persons.
Litigants should not be permitted to recover damages for groundwater contamination simply by demonstrating that Marcellus Shale operations occurred near their property and that their wells contain elevated concentrations of certain contaminants. Additional evidence is necessary, including proof of a potential pathway between the Marcellus Shale and the water well.
Modeling of the possible movement of Marcellus Shale fluids or gas to a water well can be used to evaluate the potential path that the fluids or gas follow, how a path was created, and the rate at which fluids or gas are capable of moving through rock formations or soil.
Petroleum engineers and hydrogeologists can examine gas well records and permits to evaluate operational issues, such as the performance of the well and the effect of drilling and production on the underground pressure in the rock formation. Geologists can provide information about the type and characteristics of the rock formations in the area, and determine whether it is possible or likely that fluids from deep in the ground could have migrated from one rock formation into another.
Geologists can also help locate old, improperly closed or abandoned wells or coal mines which could be pathways for methane gas and other substances to contaminate drinking water wells.
Many of the substances which claimants allege are present at elevated concentrations due to Marcellus Shale production operations occur naturally or as the result of other common activities, such as farming; handling and disposal of common materials such as gasoline, household trash or sewage; or other industrial operations near the property, including coal mining.
Therefore, it is important to obtain as much information as possible regarding other potential sources for contaminants allegedly detected in drinking water.
Using standard sampling plans, methods and laboratories which have been reviewed and approved by the Pennsylvania Department of Environmental Protection or other relevant authoritative agency will help to ensure that field data are reliable and admissible.
Chemical concentrations in wells subject to litigation should be compared with corresponding concentrations in wells which are believed to be unaffected by hydraulic fracturing. For example, regarding barium, one of the contaminants identified by the Lenox Township claimants, the EPA has noted that the drinking water of “communities in Illinois, Kentucky, Pennsylvania, [and] New Mexico contains concentrations of barium that may be 10 times higher than the drinking water standard. The source of these supplies is usually well water."[15]
This observation was also reported many years before efforts to produce gas from the Marcellus Shale.[16] Likewise, exceedances of drinking water standards of substances such as iron, total dissolved solids, manganese and low pH in groundwater quality testing in Pennsylvania have been determined to be the result of naturally elevated concentrations of those substances.[17]
Scientific evidence and expert testimony will also play a significant part in deciding claims that exposure to contaminants from natural gas operations has caused residents to experience various illnesses or adverse health effects. In evaluating those claims it is helpful to establish thorough health histories for claimants and to identify for each claimant relevant occupational, lifestyle and environmental exposures to agents other than the alleged contaminants.
This information may reveal the most likely cause of a claimant’s alleged disease. Medical doctors can assist with analyzing these data and performing differential diagnoses.
To prevail on a claim for injury based on exposure to a contaminant, a claimant must produce more proof than test results showing that constituents in his water well exceed a regulatory standard. First, the claimant must demonstrate that one or more of the contaminants to which he was exposed has been identified as a potential cause of his alleged injury or disease.
For example, Lenox County residents claim that at least one plaintiff has suffered from neurological symptoms due to contamination of drinking water by barium, magnesium and strontium.[18] However, the EPA has not reported that these substances have been shown to cause neurological symptoms in humans. An expert toxicologist can evaluate the findings of health effects studies and offer testimony regarding the extent to which the studies may support a conclusion that alleged contaminants can cause adverse health effects in humans.
In addition to showing that one or more of the contaminants found in his well have been identified as a cause of his alleged injury, a claimant must also demonstrate that his exposure to one or more of those contaminants was more likely than not the cause of his alleged injury. In most cases, a claimant must offer evidence of the amount of his exposure to the contaminants.
The estimated exposure can then be compared to exposure levels reported in studies of groups of people who have been exposed to the same agent and were observed to have suffered from illnesses or diseases associated with that agent.
This evidence must be offered through an expert who is experienced and qualified to evaluate the claimant’s potential exposure to the alleged contaminants, and an expert who can competently diagnose the claimant as exhibiting signs of exposure to the substance.
The success of efforts to explore and develop Marcellus Shale natural gas resources progress depends on continued critical and scientific evaluation of information concerning all aspects of this enterprise, including the appropriate level of regulation, best practices for producers and allocation of resources to address environmental impacts and potential health effects.
--By Lynn K. McKay, Blank Rome LLP 
Lynn McKay (McKay@BlankRome.com) is a partner in Blank Rome's Washington, D.C., office. 
Blank Rome’s attorneys are involved in investigating, researching and counseling clients on matters involving the Marcellus Shale.
The opinions expressed are those of the author and do not necessarily reflect the views of the firm, its clients or Portfolio Media, publisher of Law360.
[1] Suzanne Berish, et al., v. Southwestern Energy Production Co., et al., Susquehanna County Court of Common Pleas, Commonwealth of Pennsylvania, No. 2010-1882CP, Complaint, ¶¶ 16 and 18.
[2] “Residents Charge Natural Gas Company with Chemical and Methane Releases,” BNA Toxics Law Reporter, 24 TXLR 1349, Dec. 3, 2009.
[3] Janice Crompton, “Residents reported gas odors before explosion,” Pittsburg Post-Gazette, April 1, 2010. [4] Pennsylvania Department of Environmental Protection, “Marcellus Shale Fact Sheet,” January 2010, p. 2. [5] Donald Gilliland, “Pennsylvania Department of Environmental Protection chief defends regulation of Marcellus Shale drilling,” The Patriot-News, Sept. 11, 2010.
[6] Id. [7] Mike Soraghan, “Northeast Regulator Lightens Shale Drillers’ Load,” The New York Times, Sept. 17, 2010. [8] Antoine M. Thompson, “Senator Antoine Thompson, Residents & Advocates Urge Moratorium on Gas Drilling Which Could Pollute New York’s Drinking Water,” Press release, Aug. 17, 2010.
[9] Carol R. Collier, “Determination of the Executive Director Concerning Natural Gas Extraction Activities in Shale Formations Within the Drainage Area of Special Protection Waters,” Delaware Basin Commission, May 19, 2009. See also, Mike Soraghan, “Obama Admin Rejects Timeout for Natural Gas Drilling in N.Y., Pa.,” The New York Times, Sept. 22, 2010.
[10] Mary Tiemann, “Safe Drinking Water Act (SDWA): Selected Regulatory and Legislative Issues,” Congressional Research Service Report for Congress, April 22, 2010, p. 18.
[11] Request for Nominations of Experts for the SAB Hydraulic Fracturing Review Panel 75 Fed. Reg. 42087 (July 20, 2010).
[12] U.S. Environmental Protection Agency, “Evaluation of Impacts to Underground Sources of Drinking Water by Hydraulic Fracturing of Coalbed Methane Reservoirs; National Study Final Report,” Fact Sheet, June 2004, p. 2.
[13] Id. [14] See, e.g., Informational Public Meetings for Hydraulic Fracturing Research Study, 75 Fed. Reg. 35023 (June 21, 2010), Request for Nominations of Experts for the SAB Hydraulic Fracturing Review Panel 75 Fed. Reg. 42087 (July 20, 2010), Notification of a Public Meeting of the Science Advisory Board; Environmental Engineering Committee Augmented for the Evaluation and Comment on EPA’s Proposed Research Approach for Studying the Potential Relationships Between Hydraulic Fracturing and Drinking Water Resources, 75 Fed. Reg. 13125 (March 13, 2010).
[15] U.S. Environmental Protection Agency, “Technical Factsheet on: Barium.” [16] See, Safe Drinking Water Committee, National Research Council. Drinking Water and Health, vol.1. National Academy of Sciences (Washington, D.C., 1977), p. 231.
[17] S. Reese, and J. Lee, “Summary of Groundwater Quality Monitoring Data (1985-1997), Pennsylvania’s Ambient and Fixed Station Network (FSN) Monitoring Program, Selected Groundwater Basins in Southwestern, Southcentral and Southeastern Pennsylvania,” Commonwealth of Pennsylvania Department of Environmental Protection, June 1998, pp. 1-2 and 21.
[18] Suzanne Berish, et al., v. Southwestern Energy Production Co., et al., Susquehanna County Court of Common Pleas, Commonwealth of Pennsylvania, No. 2010-1882CP, Complaint, ¶¶ 16 and 18.e.