Gov Mead must deliver answers to fracking question in Pavillion pollution

— June 27, 2013

Last week, Pavillion area residents and tribal representatives of the Wind River Indian Reservation were caught flat-footed when Gov. Matt Mead announced that the U.S. Environmental Protection Agency had agreed to turn over control of the Pavillion groundwater pollution investigation to the state.

The last they knew, EPA was still pursuing a peer review of its 2011 draft report, to be assembled by the Science Advisory Panel. That’s no longer the case. The state will oversee the investigation and produce two reports in 2014, which all stakeholders are invited to analyze with their own hired consultants.

It took both the tribes and the residents a few days to take in the news and to consider the state’s new plan before they could officially respond to the governor.

“At this time our main concern is that we were not consulted during your planning process and your plan does not give us any process for input as the investigation moves forward,” the Pavillion Area Concerned Citizens group wrote in a June 24 letter to the governor.

(The governor’s staff disagrees with the latter point, claiming that citizens have input through meetings of the Pavillion Working Group, among other avenues.)

Tribal representatives responded in similar fashion, and asked that EPA reconsider its decision and retain the lead on the investigation.

This is not a good “reset” on an investigation mired in the politics of hydraulic fracturing — the controversial practice of injecting a mixture of water, sand and chemicals into geologic zones under high pressure to break up tight sands and rock to free oil and natural gas.

Without buy-in from all stakeholders — especially the tribes and the Pavillion area residents — there can be no true resolution. It’s difficult to imagine consensus without a peer review of the findings, which has been swept off the table at Gov. Mead’s insistence.

By wresting control of the Pavillion groundwater pollution investigation from EPA, Gov. Mead and the state agencies involved are now obligated to deliver a definitive, scientifically—defensible explanation of the source of any pollution.

In the case of Pavillion, and with the backdrop of the national debate over “fracking,” there is no room for vagaries or mystery. Too much is on the line. The technology does exist to gather the necessary forensic evidence.

Whether the true source of pollution is fracking or surface spills from oil and gas activity, or whether it’s related to agriculture or a rogue polluter, or whether Mother Nature is to blame, anything short of the definitive truth will be an injustice to residents who have lived with the consequences of the pollution for too many years.

If some human activity is the cause of the pollution, there must be accountability.

Gov. Mead has taken upon himself the responsibility of finding the answer — and he did so against the wishes of the very citizens most affected by the pollution, and without consulting with them face-to-face about it. That’s not a good start to gaining buy-in from the tribes and Pavillion area residents.

Residents who live in the rural area east of Pavillion do not have to beg forgiveness for their skepticism over the ongoing groundwater pollution investigation. Neither do Native Americans on the Wind River Indian Reservation. Both parties were purposely cut out of recent negotiations between EPA, Gov. Mead’s office and EnCana Oil & Gas USA — that’s right, the very party that may possibly have contributed to groundwater pollution in the first place — in the recent decision to shift control of the pollution investigation from EPA to the state of Wyoming.

Why were citizens and the tribes left out of the negotiation?

“It was a collaborative process between EPA and EnCana (and the state of Wyoming), and it had to come together before we announced it,” Gov. Mead’s spokesman Renny MacKay told WyoFile on June 24. In a follow-up to this question, MacKay wrote to WyoFile, “… this discussion about an ongoing investigation has been public over the last few years. Residents have been engaged in that process. The decision about who is best positioned to lead the further investigation required discussions between Wyoming and the EPA.”

Not if you ask the parties who feel left out: “The Tribes and residents of Pavillion have had scant opportunity to be fully involved in the consultation process, which has been mainly directed by state and industry representatives,” wrote Wes Martel, a member of the Eastern Shoshone and Northern Arapaho joint Business Council, in an email to WyoFile. “The Joint Business Council (JBC), in its duty to protect tribal authority and jurisdiction, must always take special efforts to ensure true consultation and deliberation takes place. In this instance, it is the viewpoint of the JBC that this did not occur.”

Martel goes on to say that the federal government failed to meet its treaty and trust obligations to the tribes, whose interests and resources should receive priority consideration under the terms of the treaty that created the Wind River Indian Reservation.

True, Gov. Mead and EnCana have made their similar positions known publicly all along — that EPA’s sampling methods were flawed and the state should lead the investigation. Local residents made their position known publicly, too: that fracking was too politicized, and that the state is too beholden to the natural gas industry to earn residents’ trust in the investigation. The citizens’ position is that EPA has the expertise and the science-based peer review process necessary to conduct the most trustworthy investigation.

Gov. Mead chose to not include tribal and Pavillion area residents in this final round of negotiations with EPA.

It just so happens that the work of Gov. Mead’s office and EnCana to strike a deal with EPA won out. The citizens and tribes were ineffective (for now) in their effort to convince EPA to maintain the lead and complete the peer review. Gov. Mead and EnCana contend that the best plan for moving forward won the day, while others may see this latest development as evidence about who holds sway in these matters.

Did Gov. Mead serve EnCana’s desires or the citizens’ desires highest in this negotiation? Who is he elected to represent?

And why would EPA spend nearly five years of time, money and resources to investigate groundwater pollution, initiate a peer-review of its draft study, and then abandon leadership and the peer review?

EPA refuses to answer that question directly and instead says, “While EPA stands behind its work and data, the agency recognizes the State of Wyoming’s commitment to further investigation and efforts to provide clean water and does not plan to finalize or seek peer review of its draft Pavillion groundwater report released in December 2011.”

If state officials and EnCana are certain that EPA’s work was flawed, then prove it. Wouldn’t a peer review of scientists assembled by the Science Advisory Panel be the best way to determine the validity of the work? Wouldn’t the results of a peer review of scientists assembled by the Science Advisory Panel earn the most buy-in from all stakeholders, and even create a solid legal argument in the event of litigation?

What are the chances of a definitive determination of the source of pollution under the state’s plan? Is allowing each party to hire its own consultant the best way to analyze the results? If we stop short of finding truth and consensus in this matter, then citizens will be robbed of rights to health and property.

As for the question of political influence, there’s a great divide. Who is the least vulnerable to political influence in determining the truth? Wyoming or EPA?

“If the state has an agenda here, it’s to follow the science,” Gov. Mead’s spokesman Renny MacKay told WyoFile. “That’s what the governor has said, is let’s follow the science.”

The state of Wyoming and EnCana should be commended for providing temporary access to drinking water, and for efforts toward long-term water supply for the Pavillion area residents. Meanwhile, tribes and residents have every right to be skeptical and ask for a more direct role in the investigation. They deserve conclusive evidence.

Now that Gov. Mead has control of the investigation, it falls on his shoulders to produce the best, scientifically defensible explanation for the source of groundwater pollution in the rural Pavillion community. That result is the best hope for consensus and accountability.

— EPA is still accepting public comment on its draft work until September 30, 2013.

— Dustin Bleizeffer is WyoFile editor-in-chief and a former Powder River Basin coal miner. He has written about Wyoming’s energy industries for 15 years. You can reach him at (307) 267-3327 or email dustin@wyofile.com. Follow Dustin on Twitter at @DBleizeffer

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