Lawsuits Challenge Waste Dumping by Gas Drillers

Charleston Gazette
13 April 2011
By Ken Ward Jr.

CHARLESTON, W.Va. -- A federal judge in Wheeling this week issued a temporary restraining order against Chesapeake Energy in one of three pending cases that challenge widespread waste-dumping practices of northern West Virginia's growing natural gas industry.

U.S. District Judge Frederick P. Stamp blocked Chesapeake from hauling contaminated soil out of a waste pit it built on a Wetzel County couple's property while the couple pursues its demand for a more comprehensive cleanup plan.

Larry and Jana Rine allege that Chesapeake unlawfully disposed of drilling wastes in the pit, then buried it and planned to leave it on a 210-acre property the Rines use as a part-time home and hunting camp at Silver Hill, east of New Martinsville.

Now, they allege, the company is using repair of a slip on its well pad as an excuse to haul away the wastes and potentially cover up what was really dumped into the pit.

Preliminary testing found the soil contained diesel fuel, benzene and a variety of other contaminants, court records show.

In a suit filed late last year, the Rines argued that it's not "reasonably necessary" -- the legal test for activities allowed by state natural gas laws -- for Chesapeake to leave a buried waste dump in order to extract the gas it owns beneath the Rine property.

"These cases are just common sense and common law," said Brian Glasser, a Charleston lawyer who represents the Rines and has filed two other, similar cases against Chesapeake. "You can't bury a bunch of waste in somebody's yard. It's that simple."

If successful, the lawsuits could force major changes in the way companies handle the huge amounts of wastes generated as they rush to drill for natural gas in the lucrative Marcellus Shale formation.

Chesapeake denies any wrongdoing and, in court documents, says a permit issued by the state Department of Environmental Protection's Office of Oil and Gas authorized its activities.

Company officials declined to be interviewed, but Chesapeake spokeswoman Jacque Bland said in a prepared statement, "Chesapeake does believe that its activities are prudent and entirely within its lease and property rights."

In their push for more natural gas, drilling operators are increasingly using a process called hydraulic fracturing, or fracking, which shoots vast amounts of water, sand and chemicals deep underground to break apart rock and release the gas. West Virginia political leaders are hoping this practice expands as gas companies seek to tap into vast reserves in the Marcellus Shale, a formation that stretches from 95,000 square miles from southern New York and into eastern Ohio.

Even before the Marcellus Shale was targeted, many surface landowners in West Virginia complained about their dealings with oil and gas operators. When residents don't own the oil and gas beneath their land, companies that do can generally take whatever steps are "reasonably necessary" to drill for that oil and gas.

David McMahon, a Charleston lawyer who has long represented surface landowner interests, said dealing with drilling pit wastes that companies leave on their property is a complaint he hears frequently.

"We think leaving even the most benign thing in the ground is more than they should be allowed to do," McMahon said Wednesday. "They can haul it off, and take it to a landfill."

In the Rine case, Chesapeake in August 2009 graded five to 10 acres of the property and installed gas wells and related facilities to extract natural gas it owned beneath the land. Court records say the company also dug a large waste pond for disposal of waste materials from its fracking operation and its drilling.

"The waste pond was large and was lined on the bottom and sides with a black material," the Rines said in their lawsuit. "Chesapeake deposited foreign substances into the pond and the waste eventually filled the pond."

Sometime in mid-2010, the lawsuit says, Chesapeake began new work at the pond. The company brought in material by truck and dumped it into the pond, the suit says. It dug a new, unlined hole adjacent to the lined pond.

"Chesapeake then used heavy equipment to rupture and tear the earth and lining surrounding the waste pond," the suit says. "The lining was completely breached, allowing an unknown waste liquid to run over bare ground and into the newly dug hole.

"After the disposal of liquids into the unlined hole, a thicker material remained in the pond with the ripped liner," the suit says. "Chesapeake placed the lining material over the top of the remnant waste, then covered the entire pond and its remaining contents with soil."

About three weeks ago, the slip appeared at the edge of Chesapeake's well pad. The Rines gave the company permission to repair the slip, but instructed Chesapeake not to take any further actions until a more detailed review could be conducted. But, they said, Chesapeake began hauling away materials anyway, mixing wastes from the pit with uncontaminated soil from their yard. Chesapeake has already hauled away more than 400 trucks of materials, and has declined to tell the Rines where it was being taken, court records allege.

"Chesapeake's claim that it is engaged in slip repair is a ruse," the Rines' lawyers allege in court filings. "Removal of the black waste is simply an ill-considered attempt to mitigate the Rines' property damages, without determining the waste contents or the contamination footprint and without implementing the necessary handling, disposal and remediation.

"Chesapeake has essentially taken over the Rine property and refuses to leave, claiming that it is accountable to no one except itself."

Stamp has not ruled on the larger issues in the case, but the judge did block Chesapeake from removing more materials from the site, and set a hearing for next week to consider more evidence and arguments.

Reach Ken Ward Jr. at or 304-348-1702.