Posted on July 26, 2011 by Chester Babst
The increasingly controversial issues surrounding the extraction of natural gas by “fracking” took an unusual turn on May 2, 2011 when the Attorney General for the State of Maryland notified Chesapeake Energy Corporation and its affiliates of the State’s intent to sue for violations of the Clean Water Act (“CWA”) and the Resource Conservation and Recovery Act (“RCRA”). The notice letter followed from the alleged release of “thousands of gallons” of hydraulic fracturing fluids (“frack fluids”) from the failure of a natural gas well located in Bradford County, Pennsylvania on April 19, 2011. The frack fluids reportedly entered Towanda Creek, a tributary of the Susquehanna River, which eventually flows into Maryland and empties into the Chesapeake Bay. According to the May 2, 2011 press release from the Attorney General’s office, “at the close of the required 90-day notice period, the State intends to file a citizen suit and seek injunctive relief and civil penalties under RCRA for solid or hazardous waste contamination of soils and ground waters, and the surface waters and sediments of Towanda Creek and the Susquehanna River. The State also intends to seek injunctive relief and civil penalties under the CWA for violation of the CWA’s prohibition on unpermitted pollution to waters of the United States.” The press release noted that “the Susquehanna River supplies drinking water for approximately 6.2 million people and sensitive fish populations like the American shad and striped bass are moving into the Susquehanna flats at this time of year. Exposure to toxic and carcinogenic chemicals in unknown quantities creates a risk of imminent and substantial endangerment to humans using Pennsylvania and Maryland waterways for recreation and to the environment.”
The notice of intent to sue is another example of the increased scrutiny directed toward hydraulic fracturing activities associated with the Marcellus Shale, an enormous geological formation underlying much of Pennsylvania and portions of West Virginia, Ohio and New York. Hydraulic fracturing refers to the process by which water, sand and a limited amount of chemicals are injected into a rock formation to fracture it, allowing the natural gas to be released and extracted. Much attention has been directed toward the chemicals used during the fracking process. U.S. EPA recently issued its plan to study the effects of fracking, with the initial report due in 2012 and the final report due in 2014. It also issued information requests earlier this month to six large natural gas producers in Pennsylvania, asking for information regarding how wastewater will be recycled or disposed. In addition, plaintiffs’ lawyers and citizens have begun filing toxic tort claims for alleged property damages and personal injuries caused by fracking, and Marcellus Shale activities in general.
Bradford County is located in north central Pennsylvania and borders New York State. The prospect of a suit by Maryland for a release in Pennsylvania at a significant remove from Maryland raises many novel issues, not the least of which is the question of standing.