*UPDATE II* Leaving Facts Aside, EPA Exonerates Itself in Texas Drilling Case

UPDATE II (1/13/2014; 10:07am ET): Ashe Scrow from the Washington Examiner has highlighted another key problem with the IG report: the fact that the IG’s assertions require an effective rewriting of history:

The IG report said Armendariz “informed environmental and citizen groups of the order and the Associated Press release after the [EPA regional office] issued the two documents.”

However, in a Dec. 7, 2010 email — sent the same day the order went out — Armendariz told activists the agency was “about to make a lot of news.” Armendariz informed activists that a news story had already been printed, but that there would be “an official press release in a few minutes.” He also told them to “Tivo channel 8.”

Channel 8 — Dallas-Fort Worth’s WFAA-TV — published the original blurb about the order on its website 18 minutes before Armendariz sent the email saying the official press release would be issued “in a few minutes.” The original article on WFAA’s website did not include the text of the press release, since it hadn’t been officially released.

longer article about the order appeared on the website at 9:58 p.m. that day, more than five hours after the first blurb went out, indicating Armendariz did not wait until after the region released the order and the press release to inform activists.

In other words, either the IG was covering for the EPA, or Armendariz himself was not telling the truth. If the release had already been issued as the IG claimed, then why would Armendariz tell local activists that it had not — unless he wanted to suggest to them that he was giving them a “scoop,” as allies often do? If Armendariz didn’t know that the release had been issued, then he was clearly trying to provide anti-drilling folks a “heads up,” a motivation for collusion that the IG was asked to investigate but chose not to.

Either way, the IG report continues to prompt more questions than answers.

UPDATE (12/31/2013; 10:10am ET): In an unfortunate oversight, EID missed one of the more shocking elements of the OIG report: the EPA apparently doesn’t even need evidence to accuse oil and natural gas companies of wrongdoing. From the report:

“The preventative nature of Section 1431 means that for the EPA to take and enforce a Section 1431 emergency order, it needs neither proof that contamination has already occurred nor proof that the recipient of the order is responsible for the contamination. EPA guidance says that the EPA may act when the ISE is either direct or indirect, and whether the ISE is foreseeable in the near future or present at the time.” (p. 1; emphasis added)

That’s right: For the EPA to publicly accuse a company of contaminating water, there is literally no burden of proof. Merely the possibility of an incident sometime in the future gives EPA the authority to shut down U.S. energy development. Apparently that whole “innocent until proven guilty” tenet of the American judicial system does not apply to the U.S. Environmental Protection Agency’s activism activities.

Original post, Dec. 26, 2013

In a chilling reminder of why the EPA has absolutely no business regulating hydraulic fracturing, the U.S. EPA’s Office of Inspector General has decided that the agency’s baseless endangerment finding in Parker County, Tex., was actually an “appropriate” use of taxpayer funds. According to the OIG, a regional EPA administrator who said his method of regulatory enforcement was to “crucify” oil and gas companies (and who later left the EPA for the anti-drilling Sierra Club) “conformed to agency guidelines, regulations and policy.”

To recap: In December of 2010, then-EPA regional administrator Al Armendariz sent a gleeful email to local activists, thanking them for “educating” him about shale development and imploring them to “Tivo channel 8” because his office was “about to make a lot of news.” Shortly thereafter, Armendariz issued an endangerment order against local operator Range Resources for supposedly contaminating private water wells in the region with methane gas. Subsequent investigations proved that the methane did not originate from Range’s operations, that homeowners in the area had methane in their water long before Range’s operations ever began, and that one resident even drilled her water well into a methane bearing rock formation. EPA emails and the agency’s own statements under oath showed that the investigation leading to the endangerment order was inadequate, and that basic tests to determine the origin of the gas were not undertaken. State regulators, after a hearing during which massive evidence was presented challenging EPA’s findings (to which the EPA was invited but refused to attend), determined Range’s operations “have not contributed and are not contributing to contamination of any domestic water wells.” Oddly enough, more than a year after the endangerment order, the EPA was still looking for evidence to justify its actions.

In the summer of 2012, six U.S. Senators, led by Jim Inhofe (R-Okla.), asked EPA for an investigation into the agency’s actions leading up to the issuance of the Dec. 2010 order. The Office of Inspector General began that investigation and published its report on December 20th, 2013, although the IG didn’t get around to releasing its findings until this week — on Christmas Eve.

Despite all of these facts and demonstrable failures, the EPA’s OIG asserts that the agency somehow did not violate any rules or standards. The OIG never references the shocking emails between Armendariz and local activists, nor the one from the local consultant who developed the “strategy” on how to get EPA involved in the case (that same consultant added that “it is worth every penny if we can get jurisdiction to EPA“). Also omitted was any mention of the fact that EPA scientists themselves were questioning the wisdom of an endangerment order before it was issued. Here’s what EPA scientist Dr. Doug Beak said in November 2010, the month before the order was issued:

“[T]his is not conclusive evidence because of the limited data set…The only way now to compare the data would be to make assumptions to fill in data gaps and I don’t believe we have enough experience at this site or data to do this at this time.” (emphasis added)

The OIG’s conclusion is a window into the destructive impact that EPA regulation of hydraulic fracturing (“fracking”) would have on U.S. energy production. If all of the factors that went into EPA’s order against Range were justified, what exactly would it take to determine the EPA acted inappropriately?

Nonetheless, even though the OIG decided that cozy relationships between its administrators and anti-drilling activists are proper and justified, and that making “assumptions to fill in data gaps” are somehow proper, the report did note that Range’s subsequent water tests showed no contamination:

“According to the EPA, the sampling that Range Resources has completed indicates no widespread methane contamination of concern in the wells that were sampled in Parker County.”

The report adds that “current residents are not presently at risk,” but that’s still only a small concession. The OIG recommends that the regional administrator (who is no longer Al Armendariz, since he is now busy undermining energy development at the Sierra Club) re-evaluate the water samples and confirm that there is still no danger to homeowners.

Another disturbing element was the incredibly low threshold that Armendariz had set for enforcement activity. Instead of thinking in terms of how to enhance environmental protection in an efficient and science-based fashion, the former regional administrator spoke in qualitative and activist-inspired terms, such as houses supposedly blowing up and making sure any (unquantified) risk was eliminated. By that standard, all that is required for the EPA to step in and shut down development is an accusation, no matter how little data there are to support it. The fact that EPA’s own scientists had warned against issuing the endangerment order due to a lack of conclusive evidence proves that the order itself was premised on speculation and fear. On that basis, it’s unlikely that the OIG could ever find a lack of compliance.

To anyone who was paying attention, the EPA’s actions in Parker County were far from justified. From a close relationship with local activists trying to shut down development to an admitted refusal to determine the source of contamination, EPA Region 6 in December 2010 was an agency determined to “make examples” out of oil and gas companies, and it wasn’t going to let data and scientific integrity get in the way. The idea that EPA could get away with this was bad enough. That the agency’s own presumably independent investigator determined it did nothing wrong is more proof that the EPA should be kept far away from regulating hydraulic fracturing.

That is, unless we want to sacrifice the jobs and energy security made possible through responsible shale development in order to appease activists who oppose fracking as an ideological quest. That’s what the EPA did in Parker County in 2010, and it’s now apparently what the agency has free reign to do nationwide.

Comments

  1. Marlo Lewis says:

    Masterful commentary. Should be read by every policymaker considering whether the EPA should have a role in regulating fracking.

  2. Rick Parrish says:

    I understand your opposition to EPA involvement in this industry, but if you want to use facts, then use them. “No widespread contamination” is simply not the same as “no contamination”, no matter how many times you pretend that it is. Get a grip. Stick to the facts.

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