May 27, 2017

Fracking Contamination Case Can Go to Trial

A Wyoming family who claim a natural gas company contaminated their drinking water will be allowed to take their case to trial, a federal judge has ruled
By Benjamin Storrow, E&E News, January 3, 2017

A Wyoming family who claim a natural gas company contaminated their drinking water will be allowed to take their case to trial, a federal judge in Cheyenne has ruled.

Pavillion-area farmers Jeff and Rhonda Locker contend Encana Corp. committed fraud when a company bought by the Calgary, Alberta-based oil and gas firm claimed to have tested the couple’s water for petroleum products as part of a 2003 settlement agreement.

The company did not test the water, the Lockers maintain, and Rhonda Locker later became seriously ill. They argue that Encana’s nearby gas wells are responsible for her deteriorating health and that the company tried to cover up evidence linking its operations to the pollution.

Encana sought to dismiss the case, saying the couple was barred from suing under the terms of the settlement. But in a Dec. 21 ruling, U.S. District Judge Alan Johnson sided with the Lockers. The couple presented evidence showing Encana did not test their water for petroleum products; the gas company provided no evidence to refute that, Johnson said.

If the Lockers would not sign the settlement without assurances over their water, “and the defendant made a false representation in the settlement agreement, it stands to reason defendant made the representation in order to induce plaintiffs into the agreement,” Johnson wrote.

The Lockers would not be bound by a fraudulently induced settlement, he added.

“We got a pretty nice Christmas present,” said Jeff Locker. “All we wanted to do is make them accountable for what they’ve done to my wife and I, and our neighbors. All we can do now is put it in the hands of judge and jury.”

Encana, in a statement, said it was “disappointed” by the ruling.

“Our focus is on further discovery and successfully defending ourselves at trial,” the company said.

An early test for Trump?

The decision thrusts the controversy over fracking outside the small central Wyoming community of Pavillion back into the national spotlight, just as Donald Trump is poised to assume control of the White House.

Pavillion became a flashpoint in the national controversy over fracking in 2011, when a preliminary U.S. EPA study of a natural gas field outside the town found fracking had contaminated residents’ groundwater.

Sen. Jim Inhofe, an Oklahoma Republican, called EPA’s investigation in Pavillion an example of the Obama administration’s efforts to “crucify” the fossil fuel industry. The community was also featured in the Academy Award-nominated documentary “Gasland.”

EPA’s conclusion was fiercely challenged by Wyoming officials and Encana. EPA later dropped its investigation, turning it over to the state, which found no evidence of a link.

But those findings are also disputed.

Dominic DiGiulio, a visiting fellow at Stanford University and former EPA scientist who authored the agency’s original report, concluded in a follow-up study last year that Encana’s operations were likely behind residents’ polluted drinking water. And in a separate national study released last month, EPA found fracking could contaminate drinking water in some instances.

The town could serve as an early test for how a Trump administration approaches energy policy. In nominating Scott Pruitt to head EPA, Trump said the Oklahoma attorney general would reverse what he termed EPA’s “out-of-control anti-energy” agenda.

Family says it won’t settle

Determining the source of contamination in Pavillion has long been complicated by a shallow reservoir that produces both gas and potable water. The Pavillion field was first drilled in the 1960s.

In their case against Encana, the Lockers laid out a picture of a progressively deteriorating water supply. Water tests conducted in 1988 showed the water in their well was clean, Johnson noted in his decision. Four years later, it turned black when Tom Brown Inc., the field operator at the time, reworked a nearby gas well.

A Tom Brown test of the Lockers’ well in 2001 revealed the presence of toluene, a harmful pollutant, but that finding was never shared with the couple, according to court filings. The company hired a geologist to collect water samples from area wells in 2002. The geologist, Paul Taucher, identified links between local drinking water wells, but he was not asked to investigate a connection between water wells and the company’s gas wells, court records show.

But in a settlement agreed to by the Lockers and Tom Brown the next year, the company said it had analyzed the family’s water and found no evidence of pollution or linkages between the drinking well and the natural gas wells in the area.

Under the terms of the agreement, the Lockers released Tom Brown from any future liability in exchange for $21,500 to pay for a water filter.

Encana bought Tom Brown in 2004.

Jeff Locker, in an interview Friday, said he and his wife are not interested in settling the case at this point.

“They’ve dragged us through the mud long enough. I’ve got the fight on now,” he said.