Well makes for deep divisions

The Louisiana Supreme Court has cleared the way for a contested oilfield waste injection well project near downtown Houma to proceed over community objections, angering residents who fear the environmental consequences.

Local government officials say the move creates a dangerous precedent, by stripping localities of the power to regulate oil-and-gas facilities within their jurisdictions, and have vowed to fight state laws upon which the court decisions were based. If that happens, Terrebonne Parish will find itself in the midst of other tugs-of-war between local entities and the state on oilfield issues, most notably the on-going feud between the state’s executive branch and a local levee district that has filed suit against oil companies for alleged destruction of Louisiana’s great marsh.

At issue in the Houma case is a finding by the 1st Circuit Court of Appeal that a parish ordinance requiring a 1-mile buffer zone between injection wells and homes, churches or schools violates the state constitution and contradicts specific state statutes.

“Local government bodies have been denied the power to adopt local ordinances independently regulating or prohibiting the disposal of oil and gas waste,” the decision states. “The legislature has given authority over the location, design and operation of hazardous waste disposal facilities …  to the Office of Conservation through the Commissioner of Conservation. We conclude that the regulation of the disposal of any waste product into the subsurface by means of a disposal well including siting is within the exclusive jurisdiction of the Office of Conservation.”

In most matters of zoning and permits, Louisiana has historically yielded to local desires. But the case of Vanguard Environmental LLC vs. Terrebonne Parish takes state control to a new extreme, government officials and environmental advocates maintain.

At the crux of the argument is Louisiana’s classification of oilfield waste as non-hazardous, thanks to a wide loophole in federal law that lets states individually set the bar for what is regarded as hazardous and what is not.

“The state has by definition indicated that exploration and production waste is not hazardous,” said Terrebonne Parish President Michel Claudet. “That the court says the state is the only one that can direct it shows how the oilfield controls this state. There have been a lot of places where this well would not have been as egregious, rather than next to homes, schools, playgrounds and walking tracks right at the entrance to Houma.”

 

‘A BUNCH OF BULL’

The well is proposed for construction on the property of Vanguard Environmental LLC, a locally-owned and operated oilfield waste hauling company, located near the point where Williams Avenue meets North Hollywood Road. The well location is within a mile of St. Gregory Barbarigo Church and its school, as well as Legion Park Elementary School, several recreation fields and various single-family homes.

“It’s a problem,” said former parish councilman and long-time environmental activist Nolan Bergeron. “You have 18-wheelers coming through populated areas; off-loading from the truck to the tank is going to emit whatever volatiles is in that fluid. It has a lot more chemicals in there. What if they start handling fracking fluids? Those people living there have relatively clean air and are going to be contaminated with smells. Why should these people be able to build that site just because they own that land? That’s a bunch of bull. Fault lines could carry fluid into areas where you wouldn’t want it. That whole ordinance amounts to a zoning regulation. The state never turns down a permit; you can bring in any health issue you want. They are only looking out for the health of the tax dollar and the guy getting rich.”

“These people” – those who will benefit directly from the court decision – include Brandon Gawlik and his wife, Bridgette, daughter of former Terrebonne Parish President Teddy Duhe.

Among the entities associated with making the project happen is the Houma engineering firm, T. Baker Smith.

The Gawlicks did not wish to be interviewed about the project. But during a preliminary conversation one family member questioned why this project has drawn so much public attention, when there are dozens of injection wells throughout Terrebonne Parish, and many more throughout Louisiana. The company, as evinced by the court ruling, is acting within state law.

Louisiana is undoubtedly an oil-friendly state. And recent events show local communities to be highly tolerant of environmental risks from the oilfield

While the Deepwater Horizon well in the Gulf of Mexico was still spewing crude into the ocean, threatening local shorelines, devastating the fishing and tourism industries and menacing the health of cleanup crews, local officials spent far more time and energy criticizing the Obama administration for halting exploration – in the midst of one of the nation’s worst-ever environmental disasters – than other targets, including BP itself.

Although friendly to the oil industry, Terrebonne Parish found cause many years ago to protect communities from certain oilfield trends.

 

WHEN HAZARDOUS IS NOT

Injection wells and the federal rules concerning them came about due to issues with how waste salt water and other substances relating to drilling for oil and gas were disposed of.

At one time – 40 years ago and more – such fluids were disposed of in marshes and other inappropriate areas.

Injection of these fluids deep into the earth – below the water level for aquifers – was deemed the safest route.

The U.S. Environmental Protection Agency, under provisions of the Clean Water Act of 1974, developed a series of rules for fluid disposal. The most widespread system consisted of setting up wells near sites of exploration or extraction, allowing for the least-intrusive methods of collecting sea water and related fluids, injecting them deep into the ground. The creation of injection wells was itself a conversation measure.

At the same time, Congress sought to establish rules for identification and treatment of wastes, and in 1978 the first set of hazardous waste management standards was proposed by the EPA, including a proposal to free certain wastes from the designation of “hazardous.” These included “oil and gas drilling muds and oil production brines.”

Adjustments were made, and eventually, the federal rules maintained that “wastes generated during the exploration, development, and production of crude oil, natural gas, and geothermal energy … are exempt from federal hazardous waste regulations.”

However, federal officials have cautioned, that does not mean all substances which might be found in brine or other drilling waste are themselves non-toxic or non-hazardous to humans. Acting on concerns related to these rules, Terrebonne Parish developed certain rules for permitting of injection wells.

Most injections wells were on-site, and so the parish provision that they should not be located within a mile of homes, schools or churches was not seen as particularly onerous by the industry, which generally had no reason to locate such wells near residential areas.

 

COMMERCIAL DIFFERENCE

Louisiana Department of Natural Resource records show a total of 72 injection wells or related facilities permitted in Terrebonne Parish. All of those are what are referenced as “community” wells, meaning they are related to some location where oil and gas are being or have been extracted from the earth.

A separate database lists two commercial injection well locations, where the operator charges a fee to inject liquids from other companies operating at any site, after transporting it to those locations.

If the Vanguard well is completed, it will be a third.

The plan is for vacuum trucks that have picked up the liquid from various locations to pump it into holding tanks at the Vanguard site. State records show plans for a total of 20 of the tanks. Solids will settle at the tops of the tanks, while the liquid will be pumped out at high pressure.

Estimates are for nearly a quarter-million gallons of brine per day to be pumped from tanks to the well, reaching a depth of nearly a mile beneath the surface. Once there, below the water table, the brine will spread into subsurface cracks, nooks and crannies.

Vanguard began its quest for a well in 2009, submitting an application to the Louisiana Office of Conservation of the Department of Natural Resources. Specifically, the request was for a “Class II Type B injection waste disposal facility,” to handle “E and P” or “exploration and production” waste fluids.

According to state procedure, notices were published. A written comment period was established and public hearings were held.

 

IN COURT SYSTEM

Court records show that during the comment period Claudet, as parish president, sent a letter to the Office of Conservation “informing it that the Terrebonne Parish Consolidated Government’s preliminary review of the Vanguard permit application revealed that the proposed site of the facility did not comply with a Terrebonne Parish ordinance that requires all waste disposal facilities such as Vanguard to be set back one mile from any structure used as a residence or business.”

The letter further indicated that Vanguard had not submitted any parish permit application for such a facility to the parish government, which would hold any permit application issued by the Commissioner “to the letter of the law.”

On May 25 2011 the Commissioner of Conservation issued Conservation Order No ENV 200121 CFB, authorizing Vanguard “to locate construct and operate its commercial nonhazardous waste injection facility in Terrebonne Parish in accordance with the Office of Conservation permitting process.”

Seven days later Vanguard received a letter from parish government informing Vanguard that its proposed facility falls under parish jurisdiction “and that the location of the facility would be subject to the one mile setback provision.”

Vanguard notified the commissioner, and asked that the state bring suit against the parish, to block any actions the parish might take. Vanguard maintained that the state, not the parish, was the appropriate authority for granting permits or otherwise restricting injection wells.

The commissioner took no action, so Vanguard went ahead on its own, petitioning District Judge George Larke to declare that the parish ordinance was unconstitutional. Vanguard also sought an injunction preventing the parish from enforcing its ordinances pertaining to Vanguard; the parish responded in court papers, and a hearing was held before Larke.

On Aug. 1, 2012, Larke ruled in favor of Vanguard and the parish sought relief from the 1st Circuit Court of Appeal.

In addition to technical issues concerning Vanguard’s right to seek an injunction, the parish argued that Larke erred by broadly striking down the constitutionality of its ordinance rather than looking at it as a proper exercise of local policing power.

“The Louisiana Constitution establishes environmental preservation as the public policy of the state,” the 1st Circuit decision reads. “It directs that the natural resources of the state are to be protected conserved and replenished Moreover it mandates that the legislature enact laws to implement this policy. “

 

PARISH HAS NO SAY

Pursuant to that mandate, the court found, “the desire to protect the health and safety of the state’s citizens, the growth of the state’s industrial activity and the need to coordinate environmental control regulations with the federal program have prompted the legislature to act in a number of significant ways in the field of environmental regulation at the state level.”

State law extensively addresses every phase of the oil and gas exploration process from the initial exploration and drilling phases to cleanup and disposal of wastes, the court found, expressing the opinion that those statutes mandate “the disposal of any waste product into the subsurface by means of a disposal well and the regulation of all surface and subsurface waste facilities incidental to oil and gas exploration and production are virtually entirely vested in the Office of Conservation … (whose) authority includes but is not limited to the power to regulate by rules the drilling, casing, cementing disposal interval monitoring, plugging and permitting of disposal wells which are used to inject waste products in the subsurface and to regulate all surface and storage waste facilities incidental to oil and gas exploration and production.”

The parish, the court ruled, has no say in such matters as regards the allegedly “nonhazardous” substance – which the oilfield brine is determined to be.

The state requires a setback of 500 feet from residences; the parish ordinance requires a mile. So the state won out as regulator, and Vanguard won out as the party that is allowed to go ahead with its plans.

The parish appealed to the Louisiana Supreme Court, which let the 1st Circuit ruling stand without comment by refusing to grant the writ that would have led to argument.

The neighborhood that surrounds the well site includes schools, playing fields and homes – some owner-occupied and some rented out to tenants – and homeowners made aware of the final outcome are not happy.

 

UNSETTLING

Nicole Lirette, a professional landscaper, lives near the proposed well and rents nearby houses she owns to tenants.

“It’s very unsettling,” Lirette said. “Some people say it is not going to be as devastating as everyone thinks it is going to be.  But I am actually thinking about moving as a a result, even though I have been in this neighborhood all my life. If it’s just seawater and it isn’t toxic, then why does it have to go into a well? Why go through any of this at all?”

Lirette and others think about the recent contamination of water in West Virginia due to a chemical leak, the unexpected and certainly not predictable explosion of the Deepwater Horizon well in 2010 and the claims of cancer in a nearby community, Grand Bois, site of another fight concerning oilfield waste disposal.

Louisiana-based environmental chemist and activist Wilma Subra notes that even if the brine itself is non-hazardous, a number of factors make Lirette’s concerns valid.

“The waste comes in from sites by trucks and makes for increased truck traffic,” Subra said. “And the drivers are going to tend to not really pay attention to the people in the area. Then there is the dust, and the other safety aspects. It gets to the facility and it offloads into storage tanks. Hopefully, they will have some kind of a drain system if it leaks when they hook it up.  The storage tanks have vents so the material is allowed to vent out the tanks. There will be toluene, benzene, coming out of the storage tanks. There will be leaks and spills, with the potential for some of it to vaporize in the air and impact the people around it. The motors that inject material down the well create nitrogen oxide along with the hydrocarbons, which reduce the ozone and can cause respiratory problems.”

Subra suggests that since the 500-foot state mandated buffer concerns only the well itself, that the parish find a way to address the plant overall in terms of what restrictions it can lawfully bring to bear.

Nolan Bergeron said that certainly the gestalt of overall operations of an injection well – and what problems that might visit on residents – was behind the enactment of the parish ordinance years ago.

“We wanted to protect people who had built their homes and make sure someone wouldn’t buy property next to the subdivisions so that they wouldn’t contaminate the land or what they breathed,” Bergeron said. “You never know what types of vapors will be emitted from the exhaust of tanks or trucks unloading. And there are other things we still don’t know. How much do people have to sacrifice for people to haul in slop from somewhere so they can get rich? The oil people have enough political pull in this state they can get anything they want. If we can’t as a community with a home rule charter control our destiny we are in a sad, sad place. Benzine. It is a hazardous product, unless it is in the oilfield. Then it is not hazardous.”

 

MOVING FORWARD

The effect of the Vanguard decision on the ability of local governments to govern themselves is, to Terrebonne officials, crippling. Even if it can’t affect what happens with the Vaguard site, they are in the process of networking with other local governments for discussions on the subject, and to determine how legislation might help create change for the future.

“Terrebonne argued that we are authorized to regulate the siting of injection wells through our zoning power, but the courts ruled that state regulation is pervasive and completely preempts all local regulation including any regulation of waste facilities siting via zoning and land use regulations,” is how Terrebonne Parish attorney Courtney Alcock, who represented the local government in the Vanguard case, sums it up. “I argued that solid waste and hazardous waste are also highly regulated by the state; state hazardous waste laws expressly provide that they pre-empt local laws.  However the state legislature recognized zoning and provided an express statutory exemption for the ‘initial siting of hazardous waste facilities pursuant to general land use, planning, zoning or solid waste disposal ordinances.’ I am preparing for the parish president’s consideration a request to the local legislative delegation and possibly to solicit the endorsement of the Louisiana Police Jury Association that our legislators introduce a similar ‘land use and zoning’ exemption for E&P waste facilities that would statutorily permit local land use regulations to apply to such facilities.”

The parish president says he is determined to press the issue, and that it is a priority of his administration.

“Terrebonne Parish’s hazardous waste ordinance was enacted in order to protect the ‘healthy, safety and welfare of the parish’s residents’ and the ‘fragile environment of the parish’ and authorized by the state constitution and local charter,” Claudet said. “The siting provisions of the Terrebonne Parish hazardous waste ordinance have been in place, unchallenged, for over 30 years and are within the zoning authority of Terrebonne Parish Consolidated Government. A company should not be allowed to invalidate a longstanding zoning ordinance or zoning designation to the detriment of the surrounding compliant community.”

According to Vanguard’s preemption theory, Claudet said, any business which could acquire a 500-foot area –  for example, should a block of buildings burn down in the French Quarter – and obtain a Department of Conservation exploration and production disposal permit in that location, would be entitled to install an injection well without regard for local zoning laws.

“A local court would be forced to determine that an existing R-1 designation or an Historic District designation was illegal and unconstitutional,” Claudet said, envisioning a scenario that many good government advocates say is untenable.

Encouraging discussion within organizations representing local governments, as suggested by Claudet, would seem a good next step, according to Robert Travis Scott of the Public Affairs Research Council of Louisiana.

“I don’t know how frequently this might come up but it is possible it could come up again,” Scott said. “This is a warning shot for local governnments who may feel it important to put up any kind of resistance in the form of zoning or ordinances. That would be an obvious next place I would go to see if there is any sense of concern that is shared all around.”

Barry Erwin of the Council for a Better Louisiana agrees that the issue is important for local governments and their people.

“It hit me as something we may need to keep an eye on,” Erwin said. “I think broadly speaking, there are a lot of good reasons why you might put some of these things in the hands of the state. But there are important questions that can be raised about what a local community can and cannot do. These rules could impact a community’s quality of life and make for something that is not a comfortable fit. The community, or the parish leaders, could now see what mechanisms other communities have that they do not have.

If parish officials deem approaching the issue legislatively the best solution, they may want to start bending the ears of lawmakers well in advance of the upcoming March session.

Legislators interviewed for this story said they are only vaguely familiar with the issue, and that they will need to time to review the contested court decision, so that they can determine if legislative involvement is warranted or desirable.

Evening walkers exercise and take in the air near the proposed site of an injection well a mile from downtown Houma. 

By JOHN DESANTIS