By Megan M. Hunter, Esq.*
*admitted to practice in Ohio, New York, and the U.S. District Court for the Northern District of Ohio
I first published an earlier version of this post while I was a Resident Attorney with Fair Shake Environmental Legal Services on their blog.
Two recent studies by the U.S. Geological Survey, Duke University, and the University of Missouri have demonstrated that unconventional oil and gas wastewater deep well injection disposal sites can lead to contamination of surface waters in nearby streams. Of particular concern, the studies found endocrine-disrupting activity in adjacent streams at levels high enough to lead to adverse health effects in aquatic life. Endocrine disrupting chemicals (“EDCs”) can be found in a wide array of materials, including those used in oil and gas operations.[1] EDCs are associated with altered reproductive functions in males and females, breast cancer, abnormal growth patterns and developmental delays in children, and changes in immune function.[2] Pregnant women and children are considered the most vulnerable populations to EDC exposure, and EDCs can pass through the placenta and breastmilk to a developing fetus or a breastfeeding child with the negative health impacts not becoming evident until later in the child’s life.[3]
The USGS studies took place in Fayetteville, West Virginia, at the headwaters of Wolf Creek, where drinking water intakes are located just a few miles from the injection site. This case demonstrates one scenario where a citizen suit under the Safe Drinking Water Act (“SDWA”) may be an effective means to challenge a wastewater disposal injection site.
The SDWA establishes certain protections for current and potential underground sources of drinking water through its Underground Injection Control Program (“UICP”). The federal UICP establishes a general prohibition on injection activity that may threaten underground sources of drinking water, and sets forth requirements for permissible underground injection activity. The SDWA authorizes states to administer their own underground injection control programs “to prevent underground injection which endangers drinking water sources,” so long as they meet certain requirements.[4] Both West Virginia and Ohio administer their own programs.
A state UICP must prohibit any underground injection activity that is not authorized by permit or rule.[5] The applicant for a permit to inject must satisfy the State that the injection will not endanger any drinking water, and no rule may be promulgated that will authorize an injection that endangers drinking water sources.[6] Pursuant to the Act, “[u]nderground injection endangers drinking water sources if such injection may result in the presence in underground water which supplies or can reasonably be expected to supply any public water system of any contaminant and if the presence of such contaminant may result in such system’s not complying with any national primary drinking water regulation or may otherwise adversely affect the health of persons.”[7]
The SDWA’s implementing regulations prohibit any injection activity that “allows the movement of fluid containing any contaminant into underground sources of drinking water” if the presence of that contaminant may “adversely affect the health of persons.”[8] While the USGS study in Fayetteville, WV does not elaborate on the pathway by which the contaminants from the injection well entered the surface waters that feed downstream drinking water intakes, underground drinking water sources may have been affected. The studies do demonstrate the migration of contaminants out of fracking wastewater injection disposal wells. In cases where that migration is into or through a potential or current underground source of public drinking water, the injection activity will be in violation of the requirements of the SDWA.
Under the citizen enforcement provision of the Act, “any person” may bring a civil action against “any person” who is alleged to be in violation of the SDWA.[9] The Act defines “person” as “an individual, corporation, company, association, partnership, State, municipality, or Federal agency (and includes officers, employees, and agents of any corporation, company, association, State, municipality, or Federal agency).”[10] Therefore, the citizen suit provision provides a means for affected individuals, businesses, or non-profit organizations to enforce the SDWA’s prohibition on any injection that endangers underground drinking water sources.
According to the U.S. Environmental Protection Agency, there are over 36,000 disposal wells in operation across the United States, and the volume of wastewater requiring disposal continues to increase despite the slowing of drilling and production of natural gas. In Ohio, underground injection wells accepted 1.2 billion gallons of oil and gas wastewater for disposal in 2015 alone, double the amount received in 2011. Where potential or actual public underground drinking water sources are affected, citizens suits under the Safe Drinking Water Act may provide a way for people to defend their environment from contamination by wastewater injection.
The above paragraphs are intended for general educational purposes and are a brief introduction into some aspects of the Safe Drinking Water Act. If you are looking for legal advice regarding underground injection or other water contamination matters, you should contact an attorney who can provide advice tailored to your specific circumstances. The attorneys at Hunter & Hunter LLC have experience in environmental citizen suits and environmental litigation and permitting and can be reached by email at megan@hunterfirm.org or phone at (234) 281-2528.
Notes
[1] In addition, EDCs are common in metals, pesticides, personal care products, and food additives. World Health Organization, Endocrine Disrupting Chemicals; Christopher D. Kassotis, et al. (2016), Endocrine Disrupting Chemicals and Oil and Natural Gas Operations: Potential Environmental Contamination and Recommendations to Assess Complex Environmental Mixtures, 124 Environmental Health Perspectives 156.
[2] World Health Organization, Endocrine Disrupting Chemicals.
[3] Id.
[4] 42 USC 300h(b)(1).
[5] 42 USC 300h(b)(1)(A).
[6] 42 USC 300h(b)(1)(B).
[7] 42 USC 300h(d)(2).
[8] 40 CFR 144.12(a).
[9] 42 USC 300j-8.
[10] 42 USC 300f(12).