Leaked EPA Document Showing Water Contamination Could Be Smoking Gun in Federal Lawsuit

Cross-Posted from DeSmogBlog

A PowerPoint presentation obtained from a source and published by DeSmog in August 2013 has made its way into a major hydraulic fracturing ("fracking") related legal case, which is set to go to trial soon in the U.S. District Court for the Middle District of Pennsylvania. 

That document was presented as a legal exhibit on December 30 as part of a motion by the plaintiffs in opposition to exclude some evidence during the jury trial made by the defendant, Cabot Oil & Gas. The motion cites the exhibit to reveal how the Obama Administration's U.S. Environmental Protection Agency (EPA) ignored the evidence of its own staff scientists in declaring the contaminated water safe to drink in Dimock, Pennsylvania.

Cabot had previously argued to the judge in its November 30 Motion in Limine (a motion to exclude evidence) that certain pieces of evidence should not be presented to a jury when the case goes to trial.

Among the pieces of evidence Cabot requested get kicked to the curb are the "so-called 'off-the-record' statements allegedly made by representatives of the EPA regarding the quality/safety of Plaintiffs’ water supplies after EPA had completed its evaluation in Dimock and concluded there were no health related concerns to the residents of Dimock."

The Cabot legal team argued that such statements amount to "inadmissible hearsay" with no place in a jury trial. 

Image Credit: U.S. District Court for the Middle District of Pennsylvania

The off-the-record conversations referenced by Cabot in its legal motion were first reported by Laura Legere in July 2012, then working with the Scranton Times-Tribune and now with the Pittsburgh Post-Gazette.  Just over a year later, Los Angeles Times reporter Neela Bannerjee (now with InsideClimate News) exposed the existence of a never-published EPA PowerPoint presentation linking fracking to groundwater contamination in Dimock.

Another prominent scientist deposed for this case, Cornell engineering professor Anthony Ingraffea, said in sworn testimony that he believes that Cabot's drilling for shale gas in Dimock can be blamed as the culprit for the contamination.

In a July 2015 deposition for this case, Ingraffea stated that "with a reasonable degree of engineering certainty, I assert that it's more likely than not that it is one or more of those three wells that has directly caused" the groundwater contamination of Dimock's wells.

Cabot: EPA PowerPoint "Hearsay"

That LA Times article, though, did not publish the presentation it referenced. A source subsequently supplied it to DeSmog and we published it here just days after the LA Times piece went to print.

"Any so-called EPA 'leaked document'...allegedly referencing a position contrary to the EPA’s July-August 2012 public pronouncement that there are no health risks to residents of Dimock from the water," should not be shown to a jury, argued Cabot's attorneys.

Cabot's attorneys then referred to the EPA PowerPoint presentation, again, as "impermissible hearsay."

Image Credit: U.S. District Court for the Middle District of Pennsylvania

The plaintiffs' attorney, Leslie Lewis, responded by saying that Cabot can't have its cake and eat it too. If it wants to cite the July 2012 EPA desk statement, she argued, the company should also allow the jury to view the PowerPoint.

"On the one hand, Cabot and its experts have embraced certain reported EPA findings, notably an official report issued in 2012 announcing that Dimock water was safe to drink and the Agency was wrapping up its investigation," Lewis wrote.

"[And] on the other hand, they reject the veracity and the relevance of a leaked internal EPA PowerPoint questioning the safety of the water and expressing the need for further study of the water...This Court should not allow Cabot witnesses to rely on EPA findings to suit their message, while excluding EPA findings that do not fit with their defense strategy."

History Repeats

This is not the only recent incident in which the EPA's political appointees have claimed the drilling technique does not cause groundwater impacts.

The EPA's Science Advisory Board recently disputed the EPA's take on its June 2015 study, concluding that fracking does not lead to "widespread, systemic impacts on drinking water resources in the United States."

“The SAB finds that this statement does not clearly describe the system(s) of interest (e.g., groundwater, surface water) nor the definitions of ‘systemic,’ ‘widespread,’ or ‘impacts,’" the EPA science advisers said, further noting that the conclusions are "inconsistent with the observations, data, and levels of uncertainty presented and discussed in the body of the draft assessment report.”

PowerPoint Authors to Testify?

The December 30 court filing by the plaintiffs in the case also reveals that the authors of the PowerPoint presentation, unlisted on the document, may testify at the trial. In so doing, they would authenticate the source of the presentation itself, Lewis concluded.

"The statements in the PowerPoint throw into question the findings of the EPA disclosed earlier in 2012," Lewis wrote. "Plaintiffs will have the subject leaked PowerPoint authenticated by the EPA by the time of trial, and are taking steps to obtain the voluntary presence at trial one or both of the EPA agents who authored the PowerPoint document."

It appears the jury trial will take place not too far down the road, according to an October scheduling order filed by the judge for the case. That order has the trial start date slated for February 22 in Scranton, Pennsylvania. 

Cabot did not respond to repeated requests for comment for this story.