Despite the videos and hundreds, if not thousands, of voices shouting above the din of shale gas plays everywhere, the true causes of the flaming water were unverified, uncorroborated or, following an energy company settlement for damages, confidential. Officially, the fracking process had an untarnished record. Some six or more years into the boom, even the EPA had yet to fully study its potential impact on groundwater.
When the agency investigators got a call about Lipsky's well, that all changed. The EPA thought it had the smoking gun that validated environmentalists' worst fears. Texas officials couldn't have disagreed more, and a deep-pocketed energy company would stop at nothing to prove the feds wrong.
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Jay Barker
Fire Marshal Shawn Scott has investigated the dumping of used fracking fluid into county ditches.
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On October 26, 2010, the EPA sampled water and gas from Lipsky's well and took samples from the two gas wells owned by Fort Worth-based Range Resources near his home. Three weeks later, the agency advised Lipsky not to use his water. The EPA was about to make a finding that would enrage lawmakers and the energy industry. Range, the agency agreed, had contaminated Lipsky's well.
On December 7, 2010, EPA regional administrator Al Armendariz sent an e-mail to anti-fracking blogger Sharon Wilson (known as Texas Sharon), Tom "Smitty" Smith of Public Citizen and others. "We're about to make a lot of news."
Over the Railroad Commission's protests, the EPA issued an incredibly rare order derived from its authority under the Safe Drinking Water Act. In a first for the Texas oil and gas industry, federal regulators declared that Range's wells had endangered the health of Lipsky and his neighbor, an oil and gas man named Rick Hayley. The EPA ordered the company to survey all private water wells within a 3,000-foot radius of its gas wells; provide replacement water; identify the contamination pathways to Lipsky's well; and stop them.
The EPA finding that most rankled the Railroad Commission and Texas politicos was this: "EPA has determined that appropriate State and local authorities have not taken sufficient action to address the endangerment described herein and do not intend to take such action at this time..."
The order made national headlines.
The response was immediate and flavored with anti-big government rhetoric. "This is Washington politics of the worst kind," Railroad Commission member Michael Williams thundered. "The EPA's act is nothing more than grandstanding in an effort to interject the federal government into Texas business."
Commissioner Elizabeth Ames Jones, who was about to replace commission Chairman Victor Carillo, said her agency would "not deny due process to the parties involved in spite of the false allegations made against our investigative actions."
The next day, the Railroad Commission scheduled its own hearing to determine whether Range "caused or contributed" to the contamination of Lipsky's well. Beginning January 19, 2011, over the course of two days, Range spent some $3 million — according to the company's figures — amassing evidence and hiring experts to prove its case. Both the Lipskys and the EPA declined to participate.
After nearly half a year spent waiting for the commission to act, Lipsky's faith in it was shaken.
"If I went to the Railroad [Commission], I didn't have a chance," he later told a reporter. "The gas companies own the Railroad Commission."
Lipsky might have had good reason to believe that. The state's Sunset Advisory Commission was about to recommend abolishing the Railroad Commission because its elected structure "[raised] potential questions of conflicts between the commission as a regulatory agency and the oil and gas industry it regulates..."
For example, Range Resources had financial interests in several oil wells owned by a company named Venus Exploration that, according to U.S. Securities and Exchange Commission filings, applied for Chapter 11 bankruptcy protection in 2004. Range Chief Executive Officer John Pinkerton was listed as a director of Venus. So was Will Jones, the husband of the Railroad Commission's chair, Ames Jones. Ames Jones's father, Eugene Ames, was Venus's CEO. Ames Jones was appointed to the Railroad Commission by Governor Rick Perry in 2005.
Today, Ames Jones is a candidate for the Texas Senate. When asked about the potential conflict of interest, her campaign released this statement from Ames Jones: "There was no conflict of interest. I had no interest in that company, financial or otherwise, ever. That company investing in my father's company, years before I was on the RRC, is absolutely no grounds for recusal, which is clear in RRC guidelines.
On March 22, 2011, Ames Jones and the other commissioners issued their conclusions: The gas in Lipsky's well was naturally occurring. Range was absolved.
The commissioners clearly understood what it would have meant to Range, to the entire industry, if it had found that fracking contaminated groundwater. It could have been the proof the anti-fracking movement seeks.
"We owe an enormous thank-you to Range Resources..." said Commissioner Williams, who is resigning his post this month to run for Lloyd Doggett's seat in the U.S. House. "The public may have a different view of natural gas drilling in the Barnett if the EPA had picked on...some small operator who didn't have the financial resources and did not have the sense of integrity to fight back."