The Texas Railroad Commission (RRC) voted unanimously on Monday to give the proverbial middle finger to the Environmental Protection Agency. 

The Railroad Commission, the oil and gas regulator for the state of Texas, sided today with a gas industry giant, Range Resources, over a case of drinking water contamination due to an invasive gas drilling process, hydraulic fracturing. The process was made exempt, due to something known as the Halliburton Loophole, from the obligations of the Safe Drinking Water Act (SDWA) after the 2005 Energy Policy Act granted exceptional status to the practice when used for oil and gas drilling. This exemption has hindered the EPA from fully investigating the dangers of hydraulic fracturing and adequately responding to complaints of drinking water contamination.

But when EPA investigations discovered that hydraulic fracturing in the Barnett Shale area of Texas had caused or contributed to drinking water contamination in Parker County, they decided to get heavy handed. The contamination of two private water wells with cancer-causing benzene and explosive methane was enough for the EPA to invoke the SDWA and issue an Imminent and Substantial Endangerment Order to protect the area’s drinking water.

Superseding the authority of the state Commission, on December 7, 2010, the EPA issued the emergency order compelling Range Resources to supply clean drinking water to two families and monitor their homes for methane. In confined spaces, methane can act as an asphyxiant, leading to brain damage or death, and is tremendously explosive.

Both Range Resource and the Commission argue that the contamination originated naturally from the Strawn formation, a shallow bed of underlying rock. The company’s drilling, they say, occurs thousands of feet down, far from the aquifer supplying the homeowner’s water wells.

However, isotopic analyses of the contaminated water suggest that the contamination is related to the nearby drilling. Range Resources, which denied both the accusation and refused to comply with the EPA’s order, was drilling within 30 miles of Forth Worth, the area containing the water wells. Although complaints of water contamination have grown rampant in other states, this is the first official case brought against the gas industry in Texas. The Commission ruled 3-0 in favor of Range Resources, with chairwoman Elizabeth Jones adding that operations “have not and will not contaminate” the homeowners’ water.

This decision lifts the EPA’s order placed on Range Resources, meaning they will not have to deliver potable water, monitor for methane, or conduct further investigations into the cause of the contamination.

State Commissioner Michael Williams told the Associated Press that he sees the EPA’s involvement as a “cavalier attempt by the federal government to reach its arms into our state’s jurisdiction” which he says will “adversely affect the domestic energy industry.” Commissioner Williams will leave his post in April to run as a Republican for the U.S. Senate. 

Sharon Wilson, Texas organizer for Earthwork’s Oil and Gas Accountability Project, told DeSmogBlog yesterday “the EPA seems to be putting the burden of proof back on the industry where it belongs instead of the private citizen. This is an important and necessary step to protect citizens.”

Wilson, who lives atop the Barnett Shale in Texas, says that even if people could afford to test their water, there are still barriers that prevent adequate testing, like chemical disclosure. 

The secrecy of chemical components used in hydraulic fracturing operations, like the ones performed by Range Resources, is at present federally condoned. Without federally mandated disclosure there is little to ensure the full public awareness needed to protect affected homeowners. 

The EPA requested a federal court to intervene in January and is still awaiting a court date. According to a reported statement, the EPA “stands by the order issued to Range Resources and seeks to secure Range’s full compliance.” Despite the strong ruling handed down by the state Commission, the EPA is taking an even stronger stance against the decision. The state decision is “not supported by the EPA’s independent, scientific investigation, which concluded that Range Resources Corporation and Range Production Company have contributed to the contamination of homeowner’s drinking water wells” the EPA continued in that statement.

The EPA has also accused the Railroad Commission of failing to adequately respond to the initial complaints over the water contamination. The citizen, ignored by the state, eventually turned to the EPA for help. The EPA, however, failed themselves to properly conduct a full investigation, leaving essential studies unperformed and instead asking Range to conduct them.

Range Resources used this against the EPA, responding to the contamination charge by asking EPA officials to identify the specific pathway the contamination took underground. These types of investigations are burdensome to perform because the underground migration of methane or other contaminants is a notoriously difficult thing to determine. In this specific case, the EPA did not conduct a study to determine the migration pathway the contaminants took, and instead ordered Range to “conduct a study to determine if the exact pathway and cause could be defined.” 

In a recent deposition, EPA official John Belvins said the EPA “doesn’t believe that we need to do the work” because they can legally “ask a company…we believe may have cause or contributed [to water contamination] to do the work, to collect the date, and that’s what we’ve done.”

If the tide of water contamination is to ebb, however, we need a stronger force of oversight, monitoring and enforcement than the EPA has been able to muster. In order for this to happen, federal agencies will need the Congressional backing capable of overturning exemptions and reinstating EPA authority.

According to Wilson, the Texas Sunset Advisory Committee recommends that the Railroad Commission be replaced with a more effective group. “Some people call them industry lap dogs,” she says. “I’ve always called them paid protectors of industry because the commissioners receive huge campaign contributions from the oil and gas industry. I don’t think they even pretend to protect the public or our vital natural resources. Their interest is in promoting Texas energy.”