Ear To The Ground

Fracking's impacts arise from defective wells

Prior posts have noted studies showing that adverse impacts arising from fracking operations often result from defective wells and waste ponds.  A new study supports prior research with its finding that contamination of drinking water supplies arise from faulty wells.

The researchers used noble gases to trace the path of methane since these inert chemicals are not affected by microbial activity or oxidation.  By measuring the ratios of the noble materials to the methane they were able to accurately determine the distance to the likely source.  The scientists analysed results at 113 wells in the Marcellus shale in Pennsylvania and 20 in the Barnett shale in Texas. They found eight clusters of wells with problems.

The study found that "Gas geochemistry data implicate leaks through annulus cement (four cases), production casings (three cases), and underground well failure (one case) rather than gas migration induced by hydraulic [activities] deep underground."

The report can be found at:  http://www.pnas.org/content/early/2014/09/12/1322107111.

The study supports the implementation of standards and requirements directed and related to well integrity.

On Average, the Federal Government Fails To Inspect 4 In 10 High Risk Wells On Public Lands

Prior posts have noted that most adverse environmental impacts from fracking operations occur in surface or shallow aspects of operations (e.g., leaking waste storage ponds).  However, be that as it may, a study by the Associated Press has found that, on average, the Federal Bureau of Land Management ("BLM") fails to inspect 4 out of every 10 new oil and gas wells near national forests and fragile watersheds or otherwise identified as higher pollution risk projects. As you might expect from the qualifier "on average", there is significant variation from State to State. 

According to BLM records for fiscal years 2009 to 2012, roughly half-plus of wells on Federal and Indian land in Colorado, Utah, & Wyoming were not checked.  BLM records showed that 1,400 high priority wells in 13 States were not Federally inspected.  Wyoming had the most, 632 (45%); South Dakota had 1 out of 2 uninspected; and Pennsylvania had 1 out of 6.  In contrast, all high risk wells were inspected in Alabama, Michigan, Mississippi, New York, Ohio, & Texas.

Just to put the well figures in perspective, there were nearly 500,000 producing gas wells in 2012, according to the Energy Information Administration.  BLM field personnel note that chronic underfunding of their activities has been a problem for about a decade in some regional offices.  BLM budget requests for executing required inspections have not successfully passed in Congress for the last several years.

BLM inspects wells on public lands.  States have their own inspection programs, which were not addressed in the AP study.  Information on State studies in 2011 can be found at http://www.blm.gov/wo/st/en/prog/energy/oil_and_gas/Energy_Facts_Enforcement.html.  The AP study can be found at http://m.apnews.com/ap/db_289563/contentdetail.htm?contentguid=udIa3DsR.    

 

BEFORE YOU HIT SEND, CONSIDER -- IGNORANCE IS RISK: IMPACT OF NSA MONITORING TECHNOLOGIES ON ATTORNEY-CLIENT COMMUNICATIONS (PARTS 1&2)

Knew or should have known, a standard often applied in a myriad of legal context, could soon be the one applied to attorneys who ignore the risks associated with communicating with clients using modern technologies (i.e., text messaging, emails, telephone calls, and voice-mail) without appreciating the risk. “Ignorance is Bliss,” is a dangerous proposition in the practice of law when it comes to ignoring current technologies.  What obligations require attorneys to protect their client communications, and what practical steps can be taken to meet statutory and ethical obligations related to confidentiality? Is there a real risk, or is the risk limited to action movies?

Want to read more?  For Part 1, go to:  http://www.lexisnexis.com/legalnewsroom/litigation/b/litigation-blog/archive/2013/07/23/ignorance-is-risk-impact-of-nsa-monitoring-technologies-on-attorney-client-communications-part-1.aspx

For Part 2 go to:  http://www.lexisnexis.com/legalnewsroom/litigation/b/litigation-blog/archive/2013/07/24/ignorance-is-risk-response-options-to-nsa-monitoring-of-attorney-client-communications-part-2.aspx

Oklahoma earthquakes likely resulted from fluid injection of oil drilling wastewater

A recent study provides strong evidence that a November 2011 5.7 earthquake (and related aftershocks) in Oklahoma resulted from fluid injection as part of "unconventional resource" extraction activities.  The quake was the largest wastewater-induced earthquake ever recorded

At the site in question, fluid was injected into effectively sealed subsurface compartments.  Using aftershocks to illuminate faults that ruptured during a series of earthquakes in Nov. 2011 in Oklahoma, researchers were able to demonstrate that the tip of the initial rupture plane (aka fault) was within 200 yards of active injection wells and within 1 kilometer (0.62 miles) of the surface.  30% of the aftershocks occurred within this sedimentary section.  (See http://en.wikipedia.org/wiki/Sedimentary_rock.) 

The researchers concluded that, after 18 years of injection, the net fluid volume lowered the effective stress on faults about the subsurface sealed compartments.  The researchers also note that decades-long lags between commencement of injection and the onset of induced earthquakes is possible, and thus modifies traditional geological science common criteria for fluid-induced events. 

The researchers also note that the progressive rupture of three fault planes indicates that stress changes from the initial rupture triggered the successive earthquakes.  Such progressive ruptures fits into commonly accepted geological principals of earthquake aftershocks.  See http://en.wikipedia.org/wiki/Aftershock.

Although this earthquake was associated with "traditional" drilling activities, it indicates what may also happen with injection activities undertaken as part of hydraulic fracturing methods.

The article can be found at: http://geology.gsapubs.org/content/early/2013/03/26/G34045.1.abstract.    

Fracking itself is not contaminating groundwater; poor waste management and bore wells are

Prior posts have noted groundwater contamination associated with natural gas produced from deep shale deposits by hydraulic fracturing. A study by researchers (with no industry contributions) concludes that such pollution results not from liquids pumped down to the shale deposits to fracture the deep rock, but instead results from poor management of wastes or bore wells thousands of feet above the shale. The study does not minimize drinking-water pollution associated with shale-gas production, but concludes that the risks are similar, if not exactly the same, as the impacts that are seen from conventional gas development.

The symposium presenting the study can be found at: http://aaas.confex.com/aaas/2012/webprogram/Session5373.html.

Noise can alter the composition of an ecosystem

Prior posts have reviewed the wide variety of "selection factors" than can drive evolution in a species. Now it appears that noise can alter the makeup of an entire ecosystem.

Researchers have found that noise can drive away some species and sometimes encourage others, which in turn can influence the presence or absence of plants. Researching a northwest New Mexico wood which had noisy gas wells, researchers found a reshuffling of birds and small mammals, which in turn changed the odds of success for crucial steps in plant reproduction. They noted, for example, that pollination by hummingbirds, important for certain wildflowers, increased. In contrast, birds that were likely to spread pine seeds without eating them all gave way to mice that ate more of their seed cache. Thus, they noted that whole ecosystems could be restructured by noise.

Noise also was found to matter to nesting birds. Although approximately the same absolute number of birds nested around both roaring and quieter wells (the roar being the result of which wells had compressors), the quieter areas had a greater variety of bird species. Species variety in term influences the impact on food sources, which in turn impacts what plants and trees come to be in an area.

The study can be found at http://rspb.royalsocietypublishing.org/content/early/2012/03/15/rspb.2012.0230.

Amount of plastic trash in the ocean may be vastly underestimated

Prior posts have noted the various plastic debris wastes that are located in the oceans. Prior posts have also suggested that there may be plastic waste in the water column, though its quantification was uncertain. A recent assessment suggests that the amount previously estimated using surface sampling techniques may be low by a factor of several hundred percent or much more, depending on wind conditions at the time of the surface sampling.

Researchers used a specialized tow net to capture waste at different depths. The results were then combined into a mathematical model. The model allowed the researchers to calculate the amount of debris at different depths on average as well as look at how that amount changed with different conditions, such as on a windy day. They found 2.5 times more debris in the layers of water below the "surface water" (defined as the top 9.8 inches or 25 centimeters) as was found in that surface section. The debris was distributed down to a depth of about 65 to 82 feet (20 to 25 meters).

The findings mean the estimates of plastic litter in the ocean, as measured solely by skimming the surface water only, may in some cases vastly underestimate the amount of plastic debris which is present. Because churning of the water column affects the distribution of plastic debris, the contrast between surface measurements and measurements at depth can vary considerably. For example, the researchers believe that overall the amount of trash in the water column exceeds surface measurements alone with up to 250%. In high wind conditions, with lots of churning, the differential could be as much as 27 times.

The report can be found at http://www.agu.org/pubs/crossref/2012/2012GL051116.shtml.

Ninth Circuit holds that dry cleaning equipment manufacturers must engage in active, not merely passive, activities to be liable under RCRA

In litigation involving soil and/or groundwater contamination from releases related to dry cleaning equipment and PCE, it has been common for injured property owners to sue the dry cleaning equipment manufacturers, among others. One of the primary legal tools used in such litigation is the citizen-suit provision of RCRA, 42 U.S.C. Section 6972.

In Hinds Investments, L.P., et al v. Angioli, et al, 654 F.3d 846 (9th Cir. 2011), the Ninth Circuit addressed this issue. In the case, the owners' shopping centers had housed dry cleaning stores, and their groundwater was contaminated with PCE used in dry cleaning. The owners claimed that the manufacturers were liable under the citizen-suit provision of RCRA because they employed faulty machine design and distributed manuals that instructed users to dispose of contaminated waste in drains or open sewers. The Court of Appeals held that the owners did not state a claim for contributor liability under 42 U.S.C. Section 6972(a)(1)(B). The Cour held that Section 6972 required active involvement in or some degree of control over the waste disposal process. Designing machinery, even if the machinery produced waste as a byproduct, did not cause a manufacturer to be a contributor to waste disposal; a more active role with a more direct connection to the waste was required, such as handling, storage, treatment, transportation, or disposal of the waste.

Having been involved in numerous dry cleaning sites, and having seen operators follow exactly what was prescribed in the equipment manufacturers' manuals, resulting in contamination of the site, the Court's reasoning seems rather flawed. If poorly designed equipment is put into the stream of commerce, and its operating instructions lead to site contamination, then the classification of such activities as "passive" and not "contributing" to site contamination under RCRA seems of questionable logic, especially given the broad interpretation given by many courts to the "contribute" aspect of RCRA.

Transgenerational epigenetic effects demonstrated in animals to occur from a variety of pollutants

Prior posts have discussed the interplay between DNA, the various forms of RNA, and proteins regarding gene "expression"; prior posts have also noted the process of methylation of genes [see http://en.wikipedia.org/wiki/Methylation], which often reflects the interface between life's experiences and genetic expression (it is also the reason why the genes of "identical twins" become, in terms of expression, less and less similar as the twins grow older). Another component to gene expression is epigenesis (how heritable changes in genome function occur without a change in DNA sequence). [See http://epigenome.eu/en/1,1,0.] An epigenetic change in a gene adds chemical tags that influence the manner in which a gene is regulated, often locking a gene in the "on" or "off" position.

In one sense, epigenetic changes to gene expression have not been a major concern with regard to pollutants because the accepted wisdom was that, early in development, a fetus erases any epigenetic changes acquired during its parents' lifetimes, resetting those genes back to their "healthy," default programming. Now, a study indicates that such is not the case.

In a study with rats, researchers looked at a variety of pollutants. Because the study was funded by the military, the study focused on pollutants to which soldiers were likely to be exposed (dioxins, DEET, permethrin, bisphenol A (BPA), phthalates, and jet fuel). As is SOP with many animal experiments, the rat exposures used were relatively high; however, these exposures were not high enough to cause fetal deaths or signs of toxicity in either exposed rat moms or their pups. Yet all promoted epigenetic transgenerational changes; in other words, the tags were not deleted, but existed across generations.

This was a major surprise to the researchers. Because all the pollutants resulted in epigenetic changes that went from one generation to the next and the next, it suggested to the researchers that epigenetic changes that get passed down through the generations are not some unique quirk of any one chemical; the researchers now suspect that most pollutants have the potential to do this (though it must be remembered that the experiment dealt solely with the pollutants listed above).

Each group of pollutants caused a different constellation of epigenetic changes that were linked with various reproductive problems in subsequent generations, although there was some overlap. The researchers note that this suggests that there may be a means in the future to use epigenetic biomarkers to assess what you or your ancestors were exposed to earlier in life, and perhaps apply that knowledge to predict disease and limit risk.

This also means that there is a whole new field of adverse impacts from pollutants that are not encompassed by today's risk assessment methods. It is also important to remember that there is no such thing as all-bad pollutants and all-good "natural" substances. As noted in prior posts, many so-called natural substances can be quite harmful. Until more studies are done, we will not know if the researchers have uncovered a general rule applicable to the huge variety of chemicals to which humans are exposed, including through food and the environment, or if the conclusion is limited to particular classes of substances.

In toxic torts, as noted in prior posts, we are use to thinking of cause and effect, and not transgenerational manifestations of harm. Like the field of risk assessment, that accepted mode of analysis may be in need of reformation.

The report can be found at http://www.plosone.org/article/info:doi%2F10.1371%2Fjournal.pone.0031901.

Steps are being taken by various entities to reduce consumer exposure to BPA

Numerous prior posts noted that nearly everyone in the U.S. has low levels of BPA in their body, and have reviewed the animal and laboratory studies which indicate that BPA exposure may have adverse health effects on humans. It has also been noted that recent evidence indicates that the major vector for BPA exposure is cash-register receipts (thermal paper).

Responding to concern about BPA, to date 11 states have banned BPA-containing baby products, and many other states are considering a ban on BPA in food containers, especially those used by infants. In October 2011 California passed legislation banning (effective July 1, 2013) the manufacture, sale, or distribution of any bottle or cup that contains bisphenol A, at a detectable level above 0.1 parts per billion (ppb), if the bottle or cup is designed or intended to be filled with any liquid, food, or beverage intended primarily for consumption by children 3 years of age or younger. [See http://www.leginfo.ca.gov/pub/11-12/bill/asm/ab_1301-1350/ab_1319_bill_20111004_chaptered.html.] In June 2009, Connecticut became the first state to ban the chemical in reusable food and beverage containers and in containers for infant formula and baby food.

Now, Campbell's has announced that it will begin phasing out the use of BPA in its soup can liners. [See http://www.forbes.com/sites/amywestervelt/2012/03/05/under-pressure-from-parents-advocacy-groups-campbells-goes-bpa-free/.] BPA has been found in a variety of Campbell's products. Also, as noted in a prior post, by the end of March 2012 FDA will announce its conclusions on BPA.

What is ironic is that steps have not been announced to remove BPA from thermal paper used in cash-register receipts, a significant source of exposure to the general populace.