Tribes, residents say EPA deserted them in ground water investigation east of Pavillion

Gas separators east of Pavilion, Wyoming. (Jeremy Buckingham/Flickr)
Editor’s  note: This story is reposted from 
By Ron Feemster and Dustin Bleizeffer, June 25, 2013

(East of Pavillion, Wyo.) – The Northern Arapaho tribe wrote a letter on Monday June 24 to the U.S. Environmental Protection Agency asking the agency to reconsider its June 20 decision to surrender to the state of Wyoming its lead role in the investigation of ground water quality outside of Pavillion in Fremont County.

After a series of state and national stories, the gas and oil fields near Pavillion, which are located within the Wind River Indian Reservation, have become synonymous with hydraulic fracturing, a controversial method of extracting oil and natural gas by injecting a mixture of water, chemicals and sand into the earth. Conservationists and oil industry advocates hotly debate the effects of “fracking” on groundwater quality. An EPA draft report completed two years ago suggested a link between fracking and groundwater pollution in the area outside Pavillion.

Wes Martel, member of the Eastern Shoshone Business Council (Ron Feemster/WyoFile — click to enlarge)

Wes Martel, member of the Eastern Shoshone Business Council (Ron Feemster/WyoFile — click to enlarge)

“EPA’s recent action violates clear federal policy requiring agencies to engage in meaningful consultation with Tribes before taking action affecting tribal property or other interests,” wrote Darrell O’Neal, Sr., co-chairman of the Northern Arapaho Business Council. “We request that EPA place its recent decision on hold until it fulfills its obligation to consult with the Northern Arapaho Tribe.”

Both the Northern Arapaho and Eastern Shoshone tribes say that when Howard Cantor, a deputy administrator at the EPA’s Region 8 office in Denver, traveled to Fort Washakie on June 17, he informed the Eastern Shoshone and Northern Arapaho Joint Business Council of a decision that was already a done deal.

“I have to give Cantor credit,” said Wes Martel, a member of the Eastern Shoshone Business Council. “At least he came up and let us know face to face that a decision was made.” But Martel, like O’Neal, says the information came too late. The EPA had already given up its lead role in the investigation.

“Cantor just told us what was going to come out in the press release from the state,” Martel said. “There was no meaningful consultation with the tribes.”

Shifting from EPA to Wyoming

EPA launched its investigation in 2009 at the request of residents who said they didn’t trust EnCana and said the state of Wyoming had moved too slowly and had too few answers about water wells that had gone bad. In some cases, residents claimed their wells went bad in the course of one day while EnCana performed well-stimulation activities in the area.

Under the new plan, the Wyoming Oil and Gas Conservation Commission and Wyoming Department of Environmental Quality will lead the investigation in consultation with EPA and EnCana. It will be paid for by a $1.5 million grant from EnCana to the Wyoming Natural Resource Foundation.

The state will hire third party experts to help conduct reviews of wellbores, surface pits and other aspects of the investigation, while tribes and residents will be able to participate through the Pavillion Working Group, which includes all stakeholders.

The state has committed to completing two reports in its investigation by fall 2014. No portion of the state’s investigation will be peer-reviewed.

Last year, the Wyoming legislature set aside $750,000 to install cisterns for residents who ask for one. So far about 26 of 35 households have opted for a cistern, according to Renny MacKay, a spokesman for Gov. Matt Mead. MacKay added that EnCana has also made $72,000 available for its ongoing assistance in providing potable water to households in the area.

Enough mistrust to go around

For the tribes, the federal government has played a unique and important role in the investigation of groundwater near Pavillion because the land, water and minerals on the reservation are held in trust for the tribes by the federal government.

“It’s up to the federal government to uphold their treaty and trust obligations to us,” Martel said. “And while they have obligations and responsibilities to the state and to industry, we’re the only ones who have that treaty and trust relationship. The EPA has a very strong obligation to Shoshone and Arapaho tribes.”

Martel said that he does not trust the state of Wyoming to lead the investigation.

“I wish we had the technical and scientific wherewithal within the tribes to lead it ourselves,” Martel said. “But since we don’t have that, the federal government has to lead it. The EPA and the BLM have to be our people to do that.”

In a press release to document on Thursday of last week, the Northern Arapaho Tribe noted that the Wyoming State Oil and Gas Conservation Commission was permanently enjoined from regulating tribal minerals in 1969. The tribe asked the governor to be mindful of that fact in any agreement between the state and the EPA.

“The Tribes are an important partner,” Gov. Matt Mead said Friday in a quote provided in an email from MacKay, his spokesman. “And we will continue to seek to proceed cooperatively with them. Under the state-led investigation, the Oil and Gas Conservation Commission will compile two reports by the end of the year, but is not regulating minerals.”

WyoFile received a copy of the Northern Arapaho Tribes letter to the EPA late in the day Monday after much of this story had been written. MacKay declined to comment immediately. “We’ll wait and see the letter before we comment,” he said.

The EPA Region 8 office in Denver referred questions about Pavillion to a media affairs person in the Washington, D.C. office. She declined to speak on the phone and did not respond, even by email, to specific questions about how and why the EPA agreed to turn over leadership of the investigation to the state.

Like the tribes, the Pavillion area residents who originally complained about water quality issues are disappointed by the EPA decision. They say they are considering their options now that the EPA has said it will not seek peer review of its 2011 findings, which suggested a link between groundwater pollution and hydraulic fracturing.

The residents had asked the EPA to get involved in the first place to ease their mistrust of state and industry officials.

“It really came as quite a blow to us because we’ve been working toward getting this EPA thing peer-reviewed and getting some (finalized) data,” Pavillion area resident John Fenton told WyoFile on Monday. “We’re not sure what our options are. This was just a bolt out of the blue for us.”

Fenton said he and his neighbors were the last to be notified of the decision on Thursday. They take offense at the fact that they were left out of negotiations while EnCana Oil & Gas USA was party to the discussions between state and federal officials that led to EPA shifting control of the investigation back to the state of Wyoming.

The governor’s office acknowledges that the residents were not consulted.

“It was a collaborative process between EPA and EnCana (and the state of Wyoming), and it had to come together before we announced it,” said MacKay, Gov. Mead’s spokesman.

EnCana officials say they will remain intimately involved in the investigation.

“As you know, we’ve been a stakeholder in this process throughout. As the efforts transition to the State of Wyoming, we will continue to be involved through the aspects that involve integrity of our wells and legacy pits,” EnCana public relations director Doug Hock told WyoFile via email.

Hock added, “Landowners have a choice of whether or not to participate in this part of the process. Through this process, the proper steps can best be determined to ensure questions regarding water quality are answered.”

Jeff Locker leaned on an EPA test well a 100 yards away from an Encana gas well on his farm east of Pavillion. (Ernie Over,  photo)

Jeff Locker leaned on an EPA test well a 100 yards away from an Encana gas well (top left) on his farm east of Pavillion. (Ernie Over, photo)

Jerimiah Rieman, natural resources policy advisor to Gov. Mead, met in person with several Pavillion area residents at about 3 p.m. on Thursday — more than an hour after reporters began hearing about the news of Wyoming taking over the investigation. Gov. Mead had planned on attending the meeting, according to his staff, but he was feeling under the weather upon returning from a week-long trip to Canada. He joined the meeting via phone.

According to MacKay, some Pavillion area residents at the Riverton meeting welcomed the news, but Gov. Mead acknowledged that that was not the consensus of the group.

Deb Thomas of the Clark Resource Council — an affiliate of the Wyoming landowner advocacy group Powder River Basin Resource Council — said it is devastating to all citizens of Wyoming that EPA has decided to hand control of the investigation back to Wyoming’s Oil and Gas Conservation Commission, just as EnCana had demanded of EPA.

“It should terrify everyone in this country that the industry has so much power, and the state is so dependent on these revenues they take into consideration industry’s concerns before the citizens of this state,” Thomas said in a phone interview.

A rocky road

In 2007, EnCana hired geology and hydrology consultant Anthony Gorody to study the Pavillion oil and gas field and offer his analysis to local residents. At a community meeting in Pavillion hosted by EnCana, Gorody told residents, “I think, frankly, you’re all concerned for nothing.”

But residents were not convinced. With help from the Powder River Basin Resource Council, several citizens traveled to the EPA Region 8 office in Denver and asked for help. EPA launched its investigation in 2009.

At the request of EPA, the Agency for Toxic Substances and Disease Registry conducted a health risk analysis based on EPA’s sampling of domestic water wells from 2009 and the summer of 2010. The analysis found high sodium and sulfates that were likely naturally-occurring but in high enough concentrations that EPA recommended that residents stop drinking from about 20 domestic wells.

That analysis also found petroleum compounds that experts believe should not have been in the drinking water wells, but no determination was made as to the source.

EPA then drilled two test wells attempting to detect any link between the shallow drinking water wells and deeper zones that might have been impacted by oil and gas development. That led to the EPA’s controversial draft report made public in December 2011. An accompanying press release by EPA stated, “The draft report indicates that ground water in the aquifer contains compounds likely associated with gas production practices, including hydraulic fracturing.”


The Environment Protection Agency collects groundwater samples in Pavillion, WY, in January 2010. (EPA)

The Environment Protection Agency collects groundwater samples in Pavillion, WY, in January 2010. (EPA)

Wyoming and EnCana officials had reviewed the draft report a month earlier and tried to convince EPA not to issue the report at all, claiming that EPA’s drilling and sampling methods were seriously flawed. Gov. Mead did manage to convince EPA to delay issuing the report so that state officials could prepare to respond.

Wyoming and EnCana kept pressure on EPA in the following months, and an Associated Press story in 2012 featured emails that revealed state officials worrying about the potential implications of EPA’s draft report to the future use of fracking nationwide.

For several Pavillion area residents it solidified their mistrust of Wyoming and EnCana’s intentions.

More mistrust went on public display in June 2012 when Wyoming Oil and Gas Conservation Commission supervisor Tom Doll commented to his colleagues while at a meeting in Vancouver, British Columbia, he believed the Pavillion area citizens were motivated by “greed.”

Doll was forced to resign later that month.

On Monday, Gov. Mead’s spokesman Renny MacKay told WyoFile he understands “folks are skeptical. But Wyoming has the responsibility to lead the investigation in a way that will address those concerns.”

“If the state has an agenda here, it’s to follow the science,” MacKay added. “That’s what the governor has said, is let’s follow the science.”

The Eastern Shoshone and Northern Arapaho tribes, like the residents of Pavillion, welcome the governor’s commitment to science. Like the state, they also rely on revenue from oil and gas. But that may not be their biggest concern in the long run. “We can live without oil and gas,” said Martel, member of the Eastern Shoshone Business Council. “We can’t live without water.”

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