Environmental Toxic Torts Blog

Legal, Regulatory and Environmental Challenges of Hydraulic Fracturing Summit

Jenna Butler — Fri, 09 Dec 2011 14:09:32 -0700

Jeff Pilkington and Gail Wurtzler spoke at the Legal, Regulatory and Environmental Challenges of Hydraulic Fracturing Summit, presented by Information Forecast, Inc. on December 7th and 8th in Houston, Texas. Jeff participated in a panel discussion titled "Litigation Round-up: Key Take-Aways for Drilling Companies and Their Advisors." Gail moderated that panel and also presented on "Disclosure and Reporting of Fracking Fluid Chemicals: Legal Requirements and Best Practices" in a separate session. To read more event related information, click here.

RMMLF Hydraulic Fracturing: Core Issues and Trends Workshop

Jenna Butler — Fri, 18 Nov 2011 12:46:02 -0700

Adam Cohen and Shannon Stevenson co-spoke at the Hydraulic Fracturing: Core Issues and Trends Workshop, which was presented by the Rocky Mountain Mineral Law Foundation, on November 17th at the Grand Hyatt in Denver, Colorado. Adam and Shannon represented the Rocky Mountain region in "The States' Legal Framework" presentation. To read more event related information, click here.

Cooking Oil Dumped in Sewer May Not Be a Pollutant

Damian Arguello — Thu, 27 Oct 2011 10:20:20 -0700

In a February 2008 post, we summarized the holding in Mountain States Mutual Casualty Co. v. Kirkpatrick, No. 06-cv-00221-WDM-OES. (See Commercial Waste is a Pollutant, Feb. 19, 2008). Essentially, the Hog’s Breath Saloon & Restaurant dumped used cooking oil and other nontoxic waste into the sewer, clogging it. City workers clearing the clog succumbed to hydrogen sulfide gas trapped behind the clog and were severely injured. They sued the restaurant owner, Kirkpatrick, ultimately obtaining a $3.9 million judgment.

Kirkpatrick’s insurer, Mountain States Mutual, brought a declaratory judgment action against Kirkpatrick in Colorado federal court. The federal court held that the oil and waste were “pollutants” as defined by the policy and therefore there was no coverage.

However, the Colorado Court of Appeals’ unpublished October 2010 opinion in Roinestad v. Kirkpatrick essentially overruled the federal court’s opinion. The injured city workers brought a separate garnishment action against Kirkpatrick and Mountain States Mutual in state court to recover their damages. Since the workers were not parties to the federal court action, that ruling did not bind them. The trial court in the garnishment action granted summary judgment in favor of Mountain States Mutual concluding, as the federal court had, that the pollution exclusion barred coverage. The Colorado Court of Appeals reversed.

Basically, the current “absolute” or “total” exclusion precludes coverage for claims caused by a release or discharge of a “pollutant.” “Pollutant” essentially means “any solid, liquid, gaseous or thermal irritant or contaminant” and also includes waste, even if the waste can be reused.

Citing various cases nationwide, the Court of Appeals noted that a literal interpretation of the exclusion could lead to “absurd results,” becoming “virtually limitless” to “negate virtually all coverage,” for negligence and products liability claims. The court then held that cooking oil placed into a sanitary sewer was not unambiguously a discharge of a “pollutant.” The court also concluded that Kirkpatrick did not discharge the hydrogen sulfide that injured the workers.

Whether the Court of Appeals’ decision will stand remains to be seen – the Colorado Supreme Court granted certiorari on May 9, 2011. Whatever the outcome, the Supreme Court’s decision will affect the application of the current pollution exclusion in a variety of toxic tort scenarios. Stay tuned . . .

Fracking Litigation: Disclosure and Causation Issues

Jenna Butler — Wed, 28 Sep 2011 07:16:35 -0700

How may current statutes and regulations requiring disclosure of hydraulic fracturing chemicals impact private party litigation? What causation issues affect private party tort claims? To view the presentation slides entitled “Fracking Litigation: Disclosure and Causation Issues,” from speaker Gail L. Wurtzler, Partner at Davis Graham & Stubbs LLP, which were presented Tuesday, September 27th, as a segment of a Stafford webinar, “Hydraulic Fracturing and the Legal Onslaught: Preparing for EPA Actions, New Statutory Requirements, and the Growing Litigation Threat,” please click here. Learn more about disclosure issues – requirements, possible pitfalls, and possible claims – and causation issues – evidence, confounding factors, and litigation tools.

Environmental Groups Submit Hydraulic Fracturing/TSCA Disclosure Petition

Robert Lawrence — Fri, 05 Aug 2011 11:46:16 -0700

By Robert Lawrence

In a significant development yesterday, a number of environmental organizations submitted a petition to EPA on August 4 seeking to require manufacturers and processors of chemicals used in hydraulic fracturing and other oil and gas exploration and production operations to disclose the contents of the "chemical substances and mixtures" used in these operations. Earthjustice’ New York office sent the 22 page petition to EPA on behalf of more than 100 environmental organizations, including branches of the Sierra Club, Environmental Defense Fund and the League of Women Voter, seeking relief under the Toxic Substances Control Act ("TSCA").

Specifically, the environmental organizations petitioned EPA under section 21 of TSCA “to promulgate rules protecting public health and the environment from the serious risks posed by chemical substances and mixtures used in oil and gas exploration or production (“E&P Chemicals”).” The petitioners requested that EPA "adopt a rule requiring that manufacturers and processors of E&P Chemicals conduct toxicity testing of all E&P Chemicals and identify all chemical substances and mixtures tested." They also seek promulgation of a rule under TSCA section 8 requiring the maintenance and submission of various records related to E&P Chemicals, “calling in records of allegations of significant adverse reactions to E&P Chemicals, and requiring submission of all existing health and safety studies related to E&P Chemicals.”

The petitioners allege that these rules are needed because EPA and the public lack adequate data about the identify of chemicals used in hydraulic fracturing operations, as wells as about the "significant adverse reactions posed by E&P Chemicals, and health and environmental hazards, exposures, and risks posed by E&P Chemicals."

EPA reportedly is not commenting on the petition at this time.

EPA Proposes New Air Rules To Reduce Emissions from Fracking Operations

Robert Lawrence — Fri, 05 Aug 2011 11:13:24 -0700

On July 28, 2011, EPA proposed a set of standards to reduce emissions of volatile organic compounds (VOCs) and air toxics from the oil and natural gas industry. The rules also would significantly reduce methane, a greenhouse gas. The Proposed Rule, EPA's Fact Sheet for the Proposed Rule and Overview Presentation and a Regulatory Impact Analysis are on EPA's Oil and Natural Gas Air Pollution Standards webpage. The Proposed Rule has yet to be published in the Federal Register.

Background

In January 2009, WildEarth Guardians and the San Juan Citizens Alliance sued EPA, claiming that EPA had failed to review new source performance standards and air toxic standards for the oil and natural gas industry. In February 2010, the U.S. Court of Appeals for the D.C. Circuit entered a consent decree among the parties requiring EPA to sign its proposed rules related to the review of these standards by July 28, 2011 (thus EPA's notice of signature on EPA’s website on July 28) and to issue final standards by Feb. 28, 2012.

EPA’s proposal includes four air regulations for the oil and natural gas industry: a new source performance standard for VOCs; a new source performance standard for sulfur dioxide; an air toxics standard for oil and natural gas production; and an air toxics standard for natural gas transmission and storage.

In explaining the applicability of the Proposed Rule to hydraulic fracking operations, EPA stated:

The majority of new wells drilled today produce gas, and the majority of those new wells use a process known as hydraulic fracturing or "fracking." In this process, a mixture of water, chemicals and a proppant (usually sand) is pumped into a well at extremely high pressures to fracture rock and allow natural gas to escape. An estimated 11,400 new wells are fractured each year; another 14,000 are re-fractured to stimulate production or to produce natural gas from a different production zone. . . .Some of the largest air emissions in the oil and gas industry occur as natural gas wells that have been fractured are being prepared for production. During a stage of well completion known as "flowback," fracturing fluids, water, and reservoir gas come to the surface at a high velocity and volume. This mixture includes a high volume of VOCs and methane, along with air toxics such as benzene, ethylbenzene and n-hexane. The typical flowback process lasts from three to 10 days.

EPA Fact Sheet.

The proposed NSPS would limit VOC emissions from gas wells in the well completion process. It would apply to all hydraulically fractured wells - new wells as well as existing wells that are fracked or refracked in order to obtain more gas from a well. EPA claims that “these processes are the source of an estimated 500,000 tons of VOC emissions each year, and that about 9,700 completions of new wells annually are not controlled.” EPA also asserts that “12,000 re-completions annually would fit the criteria but are not controlled.” See EPA Overview Presentation.

According to EPA, the rule would require a combination of “green completion” and flaring for most fractured wells. It would also achieve 95% VOC reduction and 90% recovery of salable natural gas. The Proposed Rule would require flaring in those circumstances where criteria for reduced emissions are not met and where flaring is not a hazard.

Comments on the Rule will be due within 60 days of the date that EPA actually publishes the Proposed Rule in the Federal Register. If you would like to discuss the Proposed Rule or this blog post, please contact Robert Lawrence at 303-892-7409 or robert.lawrence@dgslaw.com.

Fracking Fluids Disclosures

Gail Wurtzler — Fri, 08 Jul 2011 13:27:02 -0700

One of the earliest and most frequently expressed public concerns has been the lack of readily available information about the materials used in hydraulic fracturing. Over the last several months, steps have been taken to address that concern by industry, regulatory agencies and public interest groups.

FracFocus maintains a voluntary hydraulic fracturing chemical registry website where industry members may post information and interested members of the public can research the materials used.

Some individual companies providing hydraulic fracturing services maintain their own webpages with materials information. One such page provided by Halliburton is found here.

Several state agencies also provide information. As required by O.R.C. 1509.10 (E), the Ohio Department of Natural Resources posts Material Safety Data Sheets for materials used in well completion operations by operators in Ohio. That webpage can be found here. Similar information is available for Pennsylvania and is found on a webpage maintained by the Department of Environmental Protection -- Bureau of Oil and Gas Management. Colorado’s Oil and Gas Conservation Commission provides information on materials as well as a number of other fracking topics at its website.

District Court Stays EPA's Emergency SDWA Order

Gail Wurtzler — Tue, 05 Jul 2011 12:56:52 -0700

One of EPA’s strategies for addressing potential environmental effects of fracking is to issue emergency orders under the Safe Drinking Water Act, 42 U.S.C. §300i(a), in situations that may present an imminent and substantial endangerment to health. Such orders have been issued against drilling operations in Texas and Pennsylvania where neighboring well owners have claimed that their drinking water wells have been contaminated. The emergency orders typically direct the oil and gas operators to stop the contamination and impose environmental monitoring and reporting obligations.

One of the issues raised and decided in U.S. v. Range Production Co., Case No. 3:11-cv-00116 (N.D. Tex.), was whether the emergency order was final agency action subject to judicial review. The court ruled that it was and denied Range’s motion to dismiss for lack of jurisdiction. Another issue raised but not yet decided is whether, after issuing the emergency order, EPA must then prove that the defendant’s drilling operations actually caused the contamination in order to enforce the order and obtain civil penalties. Before reaching that issue, the district court judge sua sponte stayed the case pending resolution of a related Fifth Circuit action, Range Resources Corp. et al. v. EPA, Case No. 11-60040. Range Resources Corp. seeks to nullify the emergency order on the grounds that the SDWA provision under which the order was issued violates Range Resources’ constitutional due process rights.

New York DEC Recommendations

Gail Wurtzler — Mon, 04 Jul 2011 14:42:13 -0700

On July 1, New York Department of Environmental Conservation issued recommendations based on its hydraulic fracturing review. The recommendations revise several positions in the DEC’s 2009 draft Supplemental Generic Environmental Impact Statement (SGEIS) report. Among others, high-volume fracturing would be prohibited in the watersheds for New York City and Syracuse as well as in an area delineated as a buffer zone. In addition, drilling would be prohibited in primary aquifers and within 500 feet of their boundaries. The surface of state-owned land could not be used for drilling.

The DEC recommendations also provide that no permits would be issued for well pads within a 100-year flood plain. An additional, third cemented casing would also be required for each well to prevent gas migration. This casing would be an intermediate casing between the surface casing and the production casing. The depths of both the surface and intermediate casing would be determined by site conditions for a specific well. Other recommendations include: new guidelines for control of flowback water and spills; a new permit process for stormwater protection; a special permit for withdrawal of large volumes of water for industrial or commercial purposes; provisions to ensure the proper handling of flowback water; disclosure of fracturing fluid chemicals; air protection provisions; and notice to local governments and certification of compliance with local land use and zoning laws.

The complete draft SGEIS will be available on the DEC website on July 8. The DEC notes that it is continuing to study socioeconomic, transportation and visual and noise impacts of hydraulic fracturing. That research is expected to be completed by July 31, 2011, and it will be reflected in the final draft of the SGEIS.

The DEC plans for a 60-day public comment period to begin in August. No permits will be issued until the public comment period has closed, public comments have been reviewed, and a final version of the SGEIS is released. For more information, see www.dec.ny.gov/

Update on EPA Fracking Guidance - Legal Challenges

Gail Wurtzler — Mon, 04 Jul 2011 12:46:48 -0700

Despite requests from industry and environmental groups to initiate formal notice-and-comment rule-making, EPA continues to proceed with its plans to address potential environmental impacts of fracking through guidance documents rather than through rule-making. In theory, use of guidance permits EPA to state its position on an issue more quickly and may thereby assist the regulated community to comply with existing laws more quickly. However, from the perspective of the regulated community, and sometimes the environmental community, guidance that does more than merely explain existing agency regulations or describe how EPA applies those regulations in specific situations can be problematic.

As a matter of due process, guidance should not substitute for regulations adopted through a formal notice-and-comment rule-making. The procedures required under the Administrative Procedure Act (APA) for formal rule-making are essential to provide due process. Following those procedures is also regarded by many courts as a critical prerequisite for judicial review of EPA’s action. Many courts find that guidance is not “final agency action” and therefore is not reviewable under the APA.

EPA reliance on guidance documents to address fracking is legally vulnerable. EPA’s similar reliance on guidance to address mountaintop coal mining was recently held to exceed EPA’s authority under the APA and the Clean Water Act. See National Mining Ass’n v. Jackson, Case No. 10-1220 (RBW) (D.C. Cir.). It is also possible that EPA’s guidance advising states on imposition of ozone fees may have a similar fate. A case challenging the ozone fee guidance, Natural Resources Defense Council v. EPA, Case No. 10-1056 (D.C. Cir.), is currently pending. The rulings in those two cases may be instructive regarding the ultimate decision in IPAA et al. v. EPA, Case No. No. 10-1233 (D.C. Cir.), where industry has challenged EPA’s guidance regarding use of diesel fuel in fracking.

EPA Selects Seven Fracking Case Study Sites

Robert Lawrence — Thu, 23 Jun 2011 15:40:29 -0700

EPA announced today that it has selected seven case studies located in various formations at locations across the country. EPA believes these locations and case studies will provide the most useful information about the potential impacts of hydraulic fracturing on drinking water resources under a variety of circumstances. Two prospective case studies, where EPA will monitor key aspects of future hydraulic fracturing activities, are located in the Haynesville Shale - DeSoto Parish, LA, and in the Marcellus Shale - Washington County, PA.

EPA will also undertake five retrospective case studies, which will investigate reported drinking water contamination purportedly due to hydraulic fracturing operations at five existing sites. These sites are: 1) Bakken Shale—Killdeer and Dunn Counties, ND; 2) Barnett Shale—Wise and Denton Counties, TX; 3) Marcellus Shale—Bradford and Susquehanna Counties, PA; 4) Marcellus Shale—Washington County, PA; and 5) Raton Basin—Los Animas County, CO.

EPA provides more information about these locations and the case studies, including key issues to be investigated and potential outcomes, on its hydraulic fracturing case studies website. The Agency plans on using the information obtained from these case studies in its hydraulic fracturing study, which EPA is undertaking pursuant to its hydraulic fracturing study plan.

Texas Requires Disclosure of Fracking Fluid Components

Robert Lawrence — Wed, 22 Jun 2011 15:37:55 -0700

On June 17, 2011, Texas Governor Rick Perry signed a bill requiring natural gas producers to disclose information about the chemicals used in their hydraulic fracturing fluids. Texas is the first state to enact such a law. Under the new law, operators are required to "complete the form posted on the hydraulic fracturing chemical registry Internet website of the Ground Water Protection Council and the Interstate Oil and Gas Compact Commission” with respect to the well in which fracking fluids are used. The referenced website, fracfocus.org, has been up and running for some time and is available for operators to post data about the chemical composition of their fracking fluids.

The bill, which had broad industry support, becomes effective on September 1, 2011. However, the Texas Railroad Commission must adopt implementing regulations before the bill’s requirements become mandatory; the bill expressly provides that it "applies only to a hydraulic fracturing treatment performed on a well for which an initial drilling permit is issued on or after the date the initial rules adopted by the Railroad Commission of Texas under [the hydraulic fracking] subchapter take effect."

Some operators have lauded the Texas disclosure bill as a good example of how reasonable disclosure can take place. A few environmental organizations have criticized the bill for its allegedly soft treatment of proprietary and trade secret information. In any event, concerned stakeholders are likely to closely follow the implementation of the bill to see whether and the extent to which it impacts operators, and whether it lessens or serves to increase the call for even more disclosure.

Developments in IPAA et al. v. EPA

Gail Wurtzler — Sun, 19 Jun 2011 18:05:01 -0700

In January, oil and gas industry trade associations, including the Independent Petroleum Association of America, sued EPA in the U.S. Circuit Court of Appeals for the D.C. Circuit challenging EPA’s statements on its website that fracking was subject to the Underground Injection Control program regulations for Class II wells. EPA has not wavered in its view and, as noted in a recent post to this blog, presented the planned scope of its guidance “Permitting for Oil and Gas Hydraulic Fracturing Activities Using Diesel Fuels” at several stakeholder meetings last month.

Not surprisingly, EPA argues in a brief filed earlier this month that the case should be dismissed because the court lacks jurisdiction since there is no final agency action and the plaintiffs lack standing to sue because the alleged injury is caused by Congressional action, not the statement on EPA’s website.

EPA argues that “[t]he only question remaining after [the Energy Policy Act of 2005] was what type of UIC permit a party desiring to conduct hydraulic fracturing operations using diesel fuels would need, not whether a permit is needed at all.” Therefore, in EPA’s view there is no question whether “new” regulations are needed.

Briefing will conclude later this month. The outcome of this case may impact state regulatory programs, industry activities, pending private litigation, and participation in FracFocus, the public database created by state regulators.

EPA Proposes Fracking Guidance - Comments Due June 29

Gail Wurtzler — Fri, 17 Jun 2011 17:36:37 -0700

Last month, EPA presented the planned scope of its guidance “Permitting for Oil and Gas Hydraulic Fracturing Activities Using Diesel Fuels” at several stakeholder meetings. EPA will take public comment on its guidance scoping document through June 29.

The proposed guidance is intended to fill a perceived gap in the agency’s ability to oversee fracking due to an exemption in the 2005 energy law. EPA intends to apply existing Underground Injection Control regulations (UIC) for Class II wells to use of diesel fuels in fracking fluids. However, the Class II regulations specifically apply to injection wells for disposal of oil and gas drilling waste, enhanced oil and gas recovery projects and underground storage of liquid hydrocarbons. 40 C.F.R. § 146.5(b). Those operations are different than fracking in several ways, such as purpose, nature of material involved, or anticipated duration. In addition, several stakeholders have objected to EPA’s attempt to regulate through guidance rather than a formal rulemaking. And, as a further complication, many states have their own EPA-approved Class II well UIC programs. Often, those programs are run by the state oil and gas regulatory authority.

A draft of the guidance may be issued for public comment later this summer. EPA currently intends to finalize the guidance this fall.

New York Attorney General Seeks to Shut Down Natural Gas Development in the Marcellus Shale

Robert Lawrence — Thu, 02 Jun 2011 15:26:46 -0700

The Attorney General of the State of New York, Eric Schneiderman, has sued the Army Corps of Engineers, the U.S. Fish and Wildlife Service, the National Park Service, the U.S. Dept. of the Interior, and U.S. EPA (the "Federal Agencies") in federal district court in the Eastern District of New York, seeking to shut down natural gas development in areas of the Delaware River Basin, including areas over the Marcellus Shale. State of New York v. United States Army Corps of Engineers et al., (E.D.N.Y. Complaint signed May 31, 2011).

Specifically, the New York AG seeks to require that the Federal Agencies prepare an EIS before adopting Delaware River Basin Commission (DRBC) regulations that would authorize natural gas development within the Delaware River Basin (the "Basin"). Until an EIS is prepared, the State seeks to have natural gas development shut down.

In its Complaint, the State alleges that promulgation of the DRBC regulations "is expected to result in the development of between 15,000 and 18,000 natural gas wells within the Basin in Pennsylvania and New York." The State contends that EPA has expressed "serious reservations" about whether gas drilling in the New York City watershed is consistent with the vision of long-term maintenance of a high quality, unfiltered water supply.

As background, on May 19, 2009, the DRBC issued a determination prohibiting natural gas extraction projects within "Special Protection Waters" in the Basin. These Waters include the full extent of the Basin in New York and nearby waters in Pennsylvania which lie within the Marcellus Shale. The State alleges that "hydrofracking in the Basin will involve pumping millions of gallons of water containing "fracking" additives into the ground under high pressure, at each well." Moreover, the State claims that flowback waters and some production waters will contain fracking additives "and other potential contaminants" and thus must be "properly handled."

New York asserts that while the DRBC has found that natural gas development in the Basin poses "potentially significant adverse environmental impacts", it nevertheless refuses to comply with NEPA and prepare an EIS. The Federal Agencies also have refused to prepare an EIS.

New York claims that widespread drilling could result in a parade of horribles - spills and discharges "risking contamination of the water supply with brine, radioactive materials, methane, aromatic hydrocarbons, heavy metals, pathogens, turbidity, phosphorus and other potentially harmful substances."

The Complaint references the recent April 19, 2011 "blowout" of a Chesapeake Energy Corp. natural gas well in Bradford County, Pa. "during the hydraulic fracturing process", despite the fact that the Complaint acknowledges that the well is located outside of the Basin.

New York's concerns extend beyond fracking, and surface water and groundwater impacts. In a separate section of the Complaint, the State alleges that gas development will result in air pollution and potential health impacts, and that the DRBC regulations would allow natural gas development without evaluating potentially adverse climate change impacts resulting from the venting and leakage of methane during production, storing, distribution or use of natural gas within the Basin.

Attorney General Schneiderman seeks to have the Federal Agencies promptly prepare an EIS and to "enjoin Defendants immediately to cease approving or carrying out any aspect of the Action [the development of the DRBC Regulations authorizing natural gas development within the Basin] until they have fully complied with their obligations under NEPA." If the Court grants this request for injunctive relief, natural gas development over areas of the Marcellus Shale in the Basin could be shut down for years while the NEPA process runs its lengthy course.

Congresswoman DeGette Requests Frac Hearing

Sam Niebrugge — Fri, 27 May 2011 08:15:20 -0700

On Thursday, May 26, 2011, Representative Diana DeGette (D – CO), together with Representatives Harry Waxman (D – NY) and Edward Markey (D – MA) requested that the House Committee on Energy and Commerce hold hearings to address the use of hydraulic fracturing in natural gas production. The Representatives point out that the Committee has not held hearings on hydraulic fracturing over the course of this year, and they hope to inform and educate members of the Committee about recent developments and concerns of fracking. The letter cites several recent examples of spills and hazards that are a result of fracking. It also casts doubt about the adequacy and transparency of the industry’s frac-fluid disclosure website.

The letter does not specifically address the need to investigate hydraulic fracturing for use in oil production, but we assume any hearing before Congress will address oil and gas production. The Niobrara shale play in northern Colorado and southern Wyoming depends on hydraulic fracturing completions for oil production.

As of this post, there has been no response from the Chairman of the Committee, so we do not know when any hearings may take place.

Whole Lot of Shakin' Going On: Fracking and Seismic Activity Claims

Robert Lawrence — Thu, 26 May 2011 13:17:45 -0700

This is the second in a series of blog postings addressing the spate of oil and gas extraction cases filed in the month of May in Arkansas. Lane v. BHP Billiton Petroleum (Arkansas) Inc. et al., is a class action complaint filed in the Circuit Court of Faulkner County, Arkansas, on May 20, 1010. Unlike other extraction/fracking cases that allege injury based upon the claimed release and migration of pollutants from extraction or injection well activities, the Lane litigation is premised upon and seeks relief from harm purportedly arising from earthquakes that the Lane plaintiffs contend were caused by oil and gas drilling operations. Among other things, plaintiffs claim that there have been 599 seismic events in Guy, Arkansas, alone since September 2010, and that the largest earthquake in 25 years, measured at 4.7 magnitude, occurred on February 28, 2011.

The Lane plaintiffs assert that the earthquakes are related to natural gas extraction processes that involve fracking. In connection with the increased seismic activity, the plaintiffs contend that the Arkansas Oil and Gas Commission requested a Commission Order shutting down certain injection wells used for injecting fracking water back into the earth. Plaintiffs claim that "the seismic activity is directly linked and contributed to by defendants' operation and injection wells," and that this substantially and unreasonably interferes with plaintiffs' and the Class' use and enjoyment of their property. As in some other recent complaints, the Lane plaintiffs allege that defendants' operations and actions associated with their operation and injection wells are 'ultrahazardous' and subject the defendants to strict or "absolute" liability.

The putative class in the case is identified as all residents of six Arkansas counties, over 100,000 people. Plaintiffs bring public nuisance, private nuisance, absolute liability, negligence and trespass claims, and seek punitive damages. Among other claims for relief, Plaintiffs seek injunctive relief "restraining Defendants from engaging in any further conduct that is substantially likely to lead to further seismic activity and to remediate the damages it has already caused. " In additional to commonly sought damages, plaintiffs seek damages for "the loss of peace of mind" as well as economic loss from business interruption.

In Lane and other fracking cases, plaintiffs' counsel are attempting to expand the doctrine of strict or absolute liability for ultrahazardous activities into uncharted territory. Historically, plaintiffs' counsel have raised similar claims in more traditional toxic tort litigation related to the alleged release of contaminants from activities of other industrial and commercial sectors. These claims are typically challenged by defendants, and are often dismissed.

Toxic Tort Fracking Litigation Hits Arkansas

Robert Lawrence — Thu, 26 May 2011 07:56:23 -0700

Three new class action toxic tort fracking cases were filed in May with respect to gas extraction operations in the Fayetteville Shale deposits in central Arkansas. The three cases illustrate the recent trend of attempting to use traditional and sometimes novel toxic tort theories to pursue common law claims against companies involved in all phases of gas extraction operations. I will address these cases in a series of postings.

The first class action lawsuit, Tucker v. Southwestern Energy Company, XTO Energy, Chesapeake Energy Corporation and BHP Billiton Petroleum (Fayetteville), LLC, No. 1:11 CV 44 DPM, was filed on May 17, 2011 in U.S. District court for the Eastern District of Arkansas. The Tuckers own and reside on a 10 acre parcel in Quitman, Arkansas. They allege that gas drilling contaminated their 200' deep drinking water well and that it started to smell like "cotton poison". The putative class is defined as all citizens, residents, and property owners in the State of Arkansas who live and/or own property within a three mile radius of any boreholes, wellheads or other gas extraction operations operated by defendants "including any other onsite processes including hydraulic fracturing."

The Tuckers claim that their testing showed a high level of "Alpha Methylstyrene, a flammable and poisonous component which is a known component of fracking fluids." The Tuckers contend that their soil, groundwater, water well and air are contaminated, and have asserted strict liability, negligence, nuisance, and trespass claims. Among other things, the plaintiffs state that they have suffered lost use and enjoyment of their property, "severe diminution" in the value of their property, and "fear, shock, mental distress and physical harm.

Plaintiffs' complaint requests $1 million in compensatory damages, $5 million in punitive damages, establishment of an environmental monitoring fund and creation of a medical monitoring fund.

Phillip and Peggy Berry, who also live in Quitman, Arkansas, filed a similar lawsuit in the same federal district court on the same day (Berry v. Southwestern Energy Co., No. 1:11-cv-00045, (E.D. Ark. filed May 17, 2011). Two other fracking cases filed in Arkansas in May involve claims for excessive noise and the creation of earthquakes. These cases will be addressed in future posts.

Posted by Robert Lawrence

robert.lawrence@dgslaw.com

303-892-7409

Experts - Daubert Motions Should Not Be Routine

Gail Wurtzler — Thu, 06 Nov 2008 15:34:17 -0700

Both plaintiffs and defendants in toxic tort cases routinely file Daubert motions seeking to exclude the other sides’ experts. Often, the motions are based on serious questions about the qualifications of an expert or the expert’s methodology and seek to exclude “junk science.” Such motions are without a doubt a proper application of Daubert. However, at times, a motion styled as a Daubert motion is no more than an argument that the expert’s conclusions are wrong. The United States Supreme Court opinion in Daubert specifically noted that such an argument was not the proper focus of a motion to exclude under Rule 702. As a result, courts frequently hold that attacks on an expert’s conclusions should be made through cross-examination of that expert at trial or through presentation of rebuttal expert testimony rather than by means of a Daubert motion.

A recent example of such a situation is Cannata v. Forest Preserve District, 2008 WL 4360644 (N.D. Ill. September 23, 2008), where the court repeatedly admonished counsel that the attacks on the expert should be made on cross-examination and not through a motion to exclude.

The lesson for counsel (and their clients) is to limit Daubert motions to a focused attack on the expert’s qualifications and/or principles and methodology, rather than a generalized attack on the expert and his/her conclusions. In addition, it is the rare case where all or most of a party’s experts should be subjected to a Daubert motion. However, properly focused Daubert motions can be an efficient and effective use of litigation resources.

Class Certification - Medical Monitoring

Gail Wurtzler — Wed, 05 Nov 2008 15:24:00 -0700

It continues to be difficult to predict the outcome of motions to certify classes in toxic tort cases. In a recent medical monitoring case in West Virginia, Rhodes v. E.I. du Pont de Nemours & Co., F.R.D. , 2008 WL 4414720 (S.D. W. Va. September 30, 2008), the plaintiffs patterned their certification motion on a medical monitoring class settlement involving the same defendant, the same chemical (perfluorooctanoic acid or PFOA or C-8), and similar exposure levels. However, the court refused to certify the class.

See Continue Reading for more detail.

Denial of class certification was based on the court’s conclusion that the plaintiffs had not shown the class met the criteria for a medical monitoring claim under West Virginia law. In particular, the plaintiffs did not show that the proposed class had been significantly exposed to PFOA, a chemical used to manufacture products including non-stick pans, or that their exposure jeopardized their health.

No Significant Exposure. The court was unimpressed that the prior class settlement included people with similar exposures. The concession in the prior case meant nothing. Evidence of recommended precautions by public health agencies was similarly unhelpful because none of the agencies making recommendations had definitively concluded that persons exposed to [PFOA] have a significantly increased risk of disease. Finally, the court rejected the plaintiff expert’s risk assessment, and risk assessments in general, as evidence of causation in toxic tort cases because “risk assessments have largely been developed for regulatory purposes and thus serve a protection function in providing a level below which there is no appreciable risk to the general population. They do not provide information about actual risk or causation.” 2008 WL 4414720 at *12.

No Health Jeopardy. Regulatory agency concerns that PFOA may be harmful were not sufficient to show that the plaintiffs’ health was in jeopardy from exposure to PFOA. A public potential public health risk in the abstract was not evidence of the common individual injuries needed for class certification