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21-04-10 Akin Guterman CorporateThe Metropolitan Counsel® www.metrocorpcounsel.com April 2013 © 2013 The Metropolitan Corporate Counsel, Inc. Volume 21, No. 4 Defending Fracking Lawsuits Paul Gutermann gations. In this article, December 2012, setting a deadline for we outline plaintiffs’ securing new counsel. The experiences in AKIN GUMP STRAUSS HAUER & theories of exposure the Dimock, PA case provide important and discuss options object lessons in the critical importance of FELD LLP for challenging plain- early, proactive defense preparation. tiffs’ allegations on Investigating Alleged Exposure Introduction two fronts: (1) expo- Pathways Between mainstream movies starring sure pathways and (2) To assess liability risk, defendants must Matt Damon,1 documentaries2 and counter- medical causation. Paul identify and analyze potential exposure documentaries,3 media coverage of drilling- The Dimock, PA 4 Gutermann pathways. Plaintiffs have claimed that related earthquake activity, and celebrity Experience protests at the White House,5 hydraulic frac- fracking causes contamination of ambient In January 2009, landowners in Dimock, air and water resources. Filings in pending turing or “fracking” is one of the most con- PA reported methane gas migrating to the troversial environmental issues. Not litigation show that plaintiffs have identified surface and causing a drinking water well to potential exposure pathways, including the surprisingly, lawsuits alleging contamina- explode. The Pennsylvania Department of tion from hydraulic fracturing have prolif- following: Environmental Protection (PADEP) found 1. Leaks and Blowouts Due to Defec- erated. Plaintiffs typically allege that the that 10 area water wells contained elevated hydraulic fracturing process caused dis- tive Casing or Cement Jobs. Plaintiffs levels of methane. PADEP linked the cont- have alleged that the high-pressure injection charge of hazardous chemicals into the amination to hydraulic fracturing on eight ambient air and water resulting in such of fracking fluids can cause leaks in well of 62 area gas wells. PADEP subsequently casings. A 2011 National Academy of Sci- alleged harms as personal injury, loss of use fined the company for 32 of the wells, con- and enjoyment of property, loss of quality ences study found that average methane cluding that well casing had failed, thereby concentrations in shallow wells in active gas of life and emotional distress, and they seek allowing gas and, possibly, fracking fluid to drilling and extraction areas were 17 times compensatory and punitive damages and escape.6 higher than those in non-active areas. costs for medical monitoring. Shortly thereafter, 15 landowners filed 2. Improper Disposal or Treatment of The financial and public relations stakes suit alleging physical injuries and property Contaminated Wastewater. Plaintiffs have in these cases should not be underestimated. damage from contamination of these water alleged that disposal of wastewater gener- To succeed in fighting off such claims, a wells, allegedly exposing them to hydraulic ated in hydraulic fracturing operations has defendant must secure an early understand- fracturing fluids.7 The company agreed to ing of plaintiffs’ theories of contamination settle with PADEP, paying $12 million to caused contamination. A portion of fractur- and the scientific basis to counter these alle- extend a public water line to the residents ing fluid (called “wastewater” or “slickwa- whose water wells had been contaminated ter”) returns to the surface for disposal. EPA Paul Gutermann is Head of Akin Gump’s and $4 million in penalties. has estimated that the recovered fluids range Environmental practice. He has a national With the benefit of hindsight and dis- from 15 to 80 percent of the volume 9 practice litigating cutting-edge issues aris- counting that Dimock was an early, highly injected, depending on the site. The waste- ing under all major environmental statutes publicized conflict that created enormous water is typically disposed of by injection and handling environmental issues that public pressure, it appears that the company into rock formations underground or treat- arise in the project development process. may have reacted too precipitously in set- ment at wastewater plants. Mr. Gutermann has been lead trial counsel tling PADEP’s claims. In July 2012, EPA 3. Aquifer Migration. Plaintiffs claim in several enforcement actions brought announced that it had completed sampling that fracking fluids and gases leak into against electric generating stations for of private drinking water wells in Dimock aquifers through well shafts and rock faults alleged violations of the Clean Air Act, as and determined that there were not levels of due to high-pressure horizontal fracking, well as matters arising under the Clean contaminants present that would require which disturbs the natural underground rock Water Act and the Resource Conservation additional action.8 Soon thereafter, the formations. Pointing to migration of and Recovery Act. He is a voting member of defendant and all but three plaintiff families methane through fractures of faults through- the ASTM International Technical Commit- entered a joint stipulation of dismissal. The out the watershed, they claim that the water tee on Soil and Rock, which is developing court allowed counsel for the remaining quality of aquifers, wells, reservoirs and standards for hydraulic fracturing. three plaintiff families to withdraw in surface waterways are polluted by the toxic Please email the author at [email protected] with questions about this article. April 2013 © 2013 The Metropolitan Corporate Counsel, Inc. Volume 21, No. 4 and radioactive chemicals contained in the caused an increased risk of latent disease. Conclusions fracking fluids.10 Anti-fracking advocates have focused Continued development of unconven- 4. Air Emissions. Plaintiffs allege that on identifying the chemical constituents of tional oil and gas resources presents impor- natural gas fracking extraction emits green- hydraulic fracturing fluids. In 2011, a con- tant opportunities for economic growth. house gases, smog-inducing compounds gressional committee reported that between Lawsuits arising out of the exploration and and potential carcinogens, causing health 2005 and 2009, 14 oil and gas companies production of these resources increase asso- and environmental effects. Most studies injected 780 million gallons of fracking ciated costs and threaten to impose road- purport to tie harmful air emissions to pro- chemicals and substances into wells.12 The blocks on development. Careful planning duction from fracked gas wells and com- committee reported that these companies and proactive defense of these lawsuits can pressor stations and not specifically to the used hydraulic fracturing products contain- reduce these costs and prevent erection of 11 hydraulic fracturing fluids or process. ing 29 chemicals that are known or possible roadblocks. Challenging Alleged Exposure Pathways human carcinogens and are regulated under To defeat such claims, a defendant com- the Safe Drinking Water Act for their risks pany must evaluate carefully such critical to human health or listed as hazardous air pollutants under the Clean Air Act.13 Ben- 1 Promised Land, http://www.imdb.com/title/ facts as the distance between fracked wells tt2091473/. zene, toluene, xylene and ethylbenzene and groundwater sources; the chemical con- 2 Gasland, http://www.imdb.com/title/tt1558250/. stituents of fracturing fluids; and the likeli- appeared in 60 of the hydraulic fracturing hood that the chemicals have moved. To products used between 2005 and 2009.14 3 Frack Nation, http://fracknation.com/. show that contamination attributable to Each is a regulated contaminant under the 4 E.g., http://www.cnn.com/2010/US/09/02/fracking/ Safe Drinking Water Act and a hazardous index.html; http://rockcenter.nbcnews.com/_news/ hydraulic fracturing is not occurring, a 2013/01/31/16774620-fracking-provides-boundless- defendant should retain a team of experts, air pollutant under the Clean Air Act. An energy-jobs-and-earthquakes?lite. including the following: environmental advocacy group claims to 5 http://wtfrackorg.blogspot.com/2011/08/daryl-han- • hydrogeologists to analyze move- have conducted a review of oil and gas ser- nah-arrested-in-white-house.html. ment, distribution and quality of fracturing vice company chemical disclosure records 6 Consent Order and Agreement Between the Com- fluids, ground and surface water; prepare and has reported that these fluids contained monwealth of Pennsylvania, Department of Environ- environmental modeling of fluids; analyze as much as 93 times more benzene than mental Protection and Cabot Oil and Gas Corporation, 15 November 4, 2009, available at http://s3.amazon- water quality; and evaluate biological mon- diesel contains. aws.com/propublica/assets/natural_gas/final_cabot_c itoring metrics; Scientists at the Endocrine Disruption o-a.pdf. • environmental engineers to analyze Exchange found that 25 percent of fracking 7 Fiorentino v. Cabot Oil & Gas Corporation, No. 3:09- emission sources and air pollution controls, chemicals could cause cancer; 37 percent cd-02284 (M.D. Pa. Nov. 19. 2009). monitor and model atmospheric pollutants could disrupt the endocrine system; 40 to 8 United States Environmental Protection Agency and prepare environmental impact assess- 50 percent could affect the nervous, News Release, available at http://yosemite. ments; epa.gov/opa/admpress.nsf/90829d899627a1d985257
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