The presumption of accountability

Two weeks ago, we printed a Q&A with a Pennsylvania Department of Environmental Protection (DEP) official in which he cited a law supposedly designed to protect home-owners in the case of water well contamination by natural gas drilling activities. Section 208 of the Pennsylvania Oil & Gas Act establishes that, with certain specific exceptions, the drilling company will be presumed to have caused that contamination and must restore or replace the water supply.

The first four of the five exceptions listed in this section are sensible, but the last one is a hole you could drive a truck through—in fact, as we see it, it undermines the whole point of the provision. That point is presumably to guarantee that homeowners whose water supplies are contaminated by gas drilling can get the problem fixed without being forced into expensive legal battles with big corporations whose pockets are a lot deeper than theirs.*

Admittedly, one can’t have a law that lets everybody who has a problem with their water supply blame it on a gas drilling company. That’s why we think it’s sensible that the section makes some exceptions to the presumption of causality. The first exception is the case that the water has been tested before drilling activity begins, and found to be contaminated already at that time. This is fair enough, and has the added bonus of putting the burden on the drilling company to pay for such tests if it wants to avoid liability. The second exception is also fair: there is no presumption of cause if the homeowner has prevented the company from doing such preliminary testing. The third and fourth exceptions establish thresholds in space and time beyond which drilling is not presumed to be responsible for pollution. That’s certainly fair in principle, though the validity of the particular thresholds chosen—1,000 feet from the well and six months after drilling has ceased respectively—is probably open to debate.

But the real problem is exception number five: “The pollution occurred as the result of some cause other than the drilling or alteration activity.”

In other words: the pollution shall be presumed to be caused by the gas drilling company, unless it’s not.

Huh? We thought the whole point here was to prevent the companies and their lawyers from going into some kind of tricky fan-dance to explain how pollution isn’t their fault even in cases where there is a clear correlation. Exception 5 opens that whole can of worms again. Even without bothering to test ahead of time, the drilling corporations can dig up experts to argue that the pollution is due to something or somebody else—perhaps agricultural runoff, as alleged in the case of Ron Gula in Hickory, PA.

So, the companies get the best expert testimony money can buy, saying that the boogie man did it, and offer it to the court; the court says the presumption of Section 208 does not apply in the case in question, and all of a sudden the landowner is confronted with a mountain of legal fees to get access to clean drinking water.

We applaud the basic idea of Section 208 of the Oil & Gas Act, but we feel that exception number five must be stricken for it to be effective. The law then would simply say that if a water well within 1,000 feet of a gas well cannot be shown to have been polluted before drilling, then becomes polluted during drilling or up to six months afterward, the presumption is that the drilling is responsible. We can’t imagine anybody but an industry lobbyist objecting to this common-sense formulation, and would like to see someone—Pennsylvania State Senator Lisa Baker, maybe?—introduce legislation that amends the Pennsylvania Oil & Gas Act to remove exception 5 from Section 208.

*Whether it is actually possible to “fix” contaminated aquifers is a separate question, as discussed in the editorial “Shoving Humpty Dumpty” in our March 26 issue.

Dr. Punnybone

Down Town