Protecting private water wells

http://www.riverreporter.com/issues/09-06-25/head1-wells.html
Protecting private water wells
Part one: Who pays? Grab your checkbook…
By SANDY LONG

TRR photo by Sandy Long
In days gone by, water wells were fairly simple affairs, like this one at Fort Delaware in Narrowsburg, NY. Today’s wells tap deep aquifers, with casings meant to prevent contaminants from entering drinking water supplies. Increasing episodes of contamination linked to the process of natural gas extraction have stirred recent legislative action to protect against such impacts.

PENNSYLVANIA – Wayne County resident Lucille Giffone recently paid $450 to have her private well water tested to establish baseline readings in hope of protecting her water supply against the potential impacts of natural gas extraction in the Upper Delaware River region. Concerned at the financial burden imposed by the testing, Giffone contacted the Upper Delaware Council (UDC) by email.

“Who is going to pay for this?” Giffone wrote. “Is the county financially prepared to assist people for water testing bills? Are the gas companies going to pay for this? If an accident happens and a person’s well water is contaminated, who is going to assist us in paying to clean up our water, if that is even possible?”

The correspondence was discussed at the UDC’s meeting on June 4, eliciting an assortment of uncertain responses.

Giffone’s concerns are not unfounded, as legislators from New York and Pennsylvania have initiated moves to protect drinking water supplies. Congressman Maurice Hinchey (D-NY) has authored a provision urging the U.S. Environmental Protection Agency (EPA) to conduct a new study on the risks that hydraulic fracturing for natural gas exploration and drilling pose to drinking water supplies.

In the 2005 Energy Policy Act, Congress exempted hydraulic fracturing, a process where fluids are injected at high pressure into underground rock formations to fracture them and increase fuel flow, from the Safe Drinking Water Act, which was designed to protect water supplies from contamination. This injection of potentially toxic chemicals such as benzene, industrial solvents, carcinogens and endocrine disrupters often occurs near drinking water wells. Currently, the oil and gas industry is the only industry granted an exemption from complying with the Safe Drinking Water Act.

Hinchey has been joined by U.S. Senator Bob Casey (D-PA), and U.S. Reps. Diana DeGette (D-CO), and Jared Polis (D-CO) in introducing companion Senate and House bills, the FRAC Act-Fracturing Responsibility and Awareness of Chemicals Act, amending the Safe Drinking Water Act. The legislation would require drillers to disclose the chemicals used in the hydraulic fracturing process.

According to Casey, Pennsylvania has the second highest number of private wells for drinking water in the nation, with three million Pennsylvanians dependent on private wells. “Drilling is happening right next to drinking water supplies. You can see why Pennsylvanians are concerned about their future access to safe drinking water,” said Casey. “We are already seeing cases in Pennsylvania, Colorado, Virginia, West Virginia, Alabama, Wyoming, Ohio, Arkansas, Utah, Texas, and New Mexico where residents have become ill or groundwater has become contaminated after hydraulic fracturing operations began in the area.”

DEP’s role

In Pennsylvania, the Department of Environmental Protection (DEP) oversees oil and gas extraction activities. In press releases issued by the DEP, the agency links contaminated wells in Meadville and Dimock with gas drilling activities in those areas.

Under the 1984 Oil and Gas Act, testing of the water supply before and after drilling is not mandated. To protect local water supplies, Representative Tina Pickett (R-Bradford/Sullivan/Susquehanna) will also introduce legislation to amend the act to increase the protection of PA water supplies.

Pickett’s legislation would make such testing a requirement, as well as extend the timeframe for when a landowner can claim damage to the water supply from six months to 24 months.

“I believe landowners deserve a more enhanced degree of protection when it involves their well, springs and other water sources,” Pickett said. “The responsibility should be on the drilling operator to ensure that the water supply is protected, and this amendment will help require more testing and allow for a longer period of time to claim damages.”

House Bill 1205 would also expand the distance where pollution of a water supply is presumed to be caused by an oil or gas well drilling operation. Current state law permits the DEP to presume a water supply has been contaminated by an oil or gas well drilling operation if it is within 1,000 feet of that operation. Pickett’s legislation extends that distance to 2,000 feet.

In its publication, “Gas Well Drilling and Your Private Water Supply” (see http://resources.cas.psu.edu/WaterResources/pdfs/gasdrilling.pdf), Penn State Cooperative Extension notes: “The gas well operator is presumed to be responsible for pollution of any drinking water supply within 1,000 feet of the gas well IF it occurs within six months after completion of the gas well. The operator can use any one of five defenses to prove they are not responsible for water contamination [see “Q and A with DEP”]. To preserve their defense, most gas well operators will collect the necessary pre-drilling water quality information from all drinking water supplies within 1,000 feet of their drilling operation.”

An important additional point is made regarding water quantity that may result in additional costs to be carried by private well owners: “Gas well operators are NOT presumed responsible for water quantity impacts to nearby water supplies. Impacts to water quantity would need to be investigated by DEP inspectors and/or proven by the water supply owner. Concerned water supply owners may wish to hire a well driller or water consultant to document the flow of water from their well or spring prior to the gas drilling activity.”

Q and A with DEP spokesman Tom Rathbun

TRR: Does DEP pay for any private well testing?

DEP: The department has a program where the total coliform can be tested for a nominal fee of $10. Otherwise, the water testing is not paid for by the department, except when it is part of a complaint investigation.

TRR: If a well owner performs the testing, is it admissible in a court of law? Is it considered valid by DEP?

DEP: The department recommends that the water supply testing be conducted by a certified laboratory. This way, there is some assurance that the laboratory is using the proper sampling and analytical procedures and is following the same method an operator uses. [See http://www.depweb.state.pa.us/labs/cwp/view.asp?a=3&Q=515609&labsNav= for a list of DEP-certified labs].

TRR: Does DEP require the drilling companies to pay for any testing?

DEP cited Section 208 of the Oil and Gas Act as its response to this question, the text of which follows:

(a) Any well operator who affects a public or private water supply by pollution or diminution shall restore or replace the affected supply with an alternate source of water adequate in quantity or quality for the purposes served by the supply.

(b) Any landowner or water purveyor suffering pollution or diminution of a water supply as a result of the drilling, alteration or operation of an oil or gas well may so notify the department and request that an investigation be conducted. Within ten days of such notification, the department shall investigate any such claim and shall, within 45 days following notification, make a determination. If the department finds that the pollution or diminution was caused by the drilling, alteration or operation activities or if it presumes the well operator responsible for pollution pursuant to subsection (c), then it shall issue such orders to the well operator as are necessary to assure compliance with subsection (a).

(c) Unless rebutted by one of the five defenses established in subsection (d), it shall be presumed that a well operator is responsible for the pollution of a water supply that is within 1,000 feet of the oil or gas well, where the pollution occurred within six months after the completion of drilling or alteration of such well.

(d) In order to rebut the presumption of liability established in subsection (c), the well operator must affirmatively prove one of the following five defenses:

1. The pollution existed prior to the drilling or alteration activity as determined by a predrilling or prealteration survey.

2. The landowner or water purveyor refused to allow the operator access to conduct a predrilling or prealteration survey.

3. The water supply is not within 1,000 feet of the well.

4. The pollution occurred more than six months after completion of drilling or alteration activities.

5. The pollution occurred as the result of some cause other than the drilling or alteration activity.

(e) Any operator electing to preserve its defenses under subsection (d)(1) or (2) shall retain the services of an independent certified laboratory to conduct the predrilling or prealteration survey of water supplies. A copy of the results of any such survey shall be submitted to the department and the landowner or water purveyor in a manner prescribed by the department.

(f) Nothing herein shall prevent any landowner or water purveyor who claims pollution or diminution of a water supply from seeking any other remedy that may be provided at law or in equity.

TRR: Does the 1,000 feet begin at the well pad and extend in all directions?

DEP: The 1,000 feet criterion of the presumption provisions starts at the well and extends to include any water supply within a 1,000 feet radius. It is worth noting that the water replacement provisions also covers any water supply beyond the 1,000 feet; however, the presumption provision does not apply.

TRR: What is the length of time allowed to landowners to claim damage to water supplies? Does that time period begin when drilling begins or when it ends?

DEP: The owner of a water supply may file a complaint at any time. When the pollution of the water supply occurs within six months after completion of drilling or altering the well, the presumption provision applies.

NOTE: The DEP supports the Master Well Owner Network [a network of trained volunteers promoting the proper construction and maintenance of private water systems in Pennsylvania] which maintains links and resources for private water well information as well as training and certification of Master Well Owners. Visit mwon.cas.psu.edu/ for more information.