Second of two parts
Re “Shale Development and Fracking-Litigation Trends”
[img]1503|left|Murray Kamionski||no_popup[/img] The Future: Statutory Claims
Plaintiffs have a more limited right to assert statutory claims in connection with fracking, as evidenced by the fact that only a few such claims have been asserted to date. The right to file a claim under a state or federal environmental statute must be specifically set forth in that statute or it cannot be alleged. This is in contrast with a plaintiff's ability to assert a common-law claim of negligence per se for the alleged violation of a statute. See Fiorentino v. Cabot Oil and Gas Corp., et al. (M.D. PA, Docket No. 3:2009-cv-02284).
In general, environmental statutes permit plaintiffs to file two types of claims. For example, plaintiffs may file claims under the citizen-suit provisions of federal and state statutes such as the Air Pollution Prevention and Control Act, 42 U.S.C. §§7401 to 7671q, and the Pennsylvania Clean Streams Law, 35 P.S. §691.1. The only citizen suit relating to fracking that has been filed to date was filed by Citizens for Pennsylvania's Future against Ultra Resources Inc. in July 2011. See Citizens for Pennsylvania's Future v. Ultra Resources , (M.D. PA, Docket No. 4:2011-cv-01360-RDM). The basis for Penn Future's claim is not that fracking in and of itself causes harm, but rather that Ultra violated the Clean Air Act when it failed to obtain a permit prior to constructing and operating the natural gas wells, pipelines, compressor stations and associated equipment that Ultra refers to as the “Marshlands Play.” Penn Future has asked the court to order Ultra to comply with the Clean Water Act and to pay civil penalties. This case is still pending as of press time.
A plaintiff may also assert a private right of action to recover damages for alleged environmental violations, including the recovery of remediation costs, under statutes such as the Pennsylvania Hazardous Sites Cleanup Act, 35 P.S. 6020.701. See Armstrong v. Chesapeake Appalachia , (Bradford County Court of Common Pleas, Pennsylvania).
While the majority of existing plaintiffs have not asserted private rights of action to recovery of remediation costs, there are a few exceptions. For example, in Armstrong, the plaintiffs have alleged that they have been harmed by the release of combustible gases, hazardous chemicals and industrial wastes from the defendants' drilling, construction and operation of natural gas wells near the plaintiffs' homes. The plaintiffs specifically seek to recover costs to remediate the contamination of their water supplies.
It is likely that defendants may be subject to increased claims for the recovery of response costs by individuals and government agencies if and when the EPA, as a result of its ongoing studies, makes a determination as to the impacts of fracking on groundwater. Until that time, agencies will continue to have uncertain success in asserting their authority to require remediation of contamination under statutes such as the Comprehensive Environmental Response, Compensation and Liability Act (CERCLA), 42 U.S.C. §9601. For example, on Jan. 19, 2012, the EPA sought approval to conduct an emergency removal action under CERCLA to investigate claims of contamination at four residential water wells in Dimock, Pa. Although the EPA initially concluded that elevated levels of arsenic, manganese and sodium (as well as several other hazardous substances) were present in the targeted water wells, it later reversed its position. As of May, the EPA determined that the water was safe to drink, after testing 61 homes. At issue was whether arsenic, manganese and sodium, which are CERCLA-regulated hazardous substances and which were found in some wells, were naturally occurring. CERCLA prohibits the EPA from using its authority to conduct a removal action in response to a release of a naturally occurring substance through a naturally occurring process.
More recently, the National Institute of Occupational Safety and Health released preliminary results from a field study in support of its position that exposure to silica during fracking is the most significant known health hazard to workers at oil and gas sites. NIOSH recommended that operators evaluate their employees' exposure to silica dust during fracking operations that involve the use of sand as a proppant. Surely, the continued evaluation of this potential health issue will generate more toxic tort claims — just a different variety.
Questions Still Unanswered
Fracking litigation is in its infancy and there are many questions that still need to be resolved. One of the most significant questions at this time centers on the potential impact of increased chemical disclosure requirements and the results of the EPA's groundwater contamination studies on fracking litigation. These two issues alone have the potential to derail fracking litigation in its entirety, or to provide the significant basis for plaintiffs to assert their claims of harm from fracking that is otherwise missing at this time.
Mr. Kamionski has operated a successful solo law practice in Los Angeles for the past 10 years, representing individuals and companies on a variety of civil and criminal matters. He has litigated in federal and state courts in Californiaand serves on several appellate panels. He also practices in Washington, D.C., represemting clients on matters before the D.C. Circuit Court of Appeals. He is Of Counsel to Andrew Hale and Associates, the top police defense firm in Chicago, and maintains the firms presence in California. He may be contacted at mkamionski@yahoo.com
