Today’s personal story was originally published by Laurel Peltier on her excellent blog greenlaurel.com and on the environmental web site Ecowatch in February 2013. It is a powerful story, and Laurel has graciously allowed me to use and edit it for this blog. She’s also explained what happened after the story was published, so read on to find out.
As powerful as this story is, Laurel’s analysis of how oil and gas industry exemptions to federal environmental laws designed to protect people like the Hagys is outstanding. To include this I’ve divided the post into two parts. Here’s the second part.
You can read other personal stories on this blog by clicking here.
All photos in this post were taken by Dusty and Tamera Hagy, and the video was created by Laurel Peltier.
Dusty and Tamera Hagy, Jackson County, West Virginia
In 1989, Dusty and Tamera Hagy bought their dream house on 81 rural acres in Jackson County, West Virginia. Twenty-one years later, the Hagys abandoned their home and sued four drilling firms, alleging the wells drilled on their property in 2008 contaminated their drinking water and caused physical harm.
The results of the Hagys’ water contamination lawsuit demonstrates how the natural gas industry has built a near-perfect “federal legal exemptions framework” that when combined with lax or absent state regulations and the legal system’s high costs, inherently approves of citizen collateral damage with no restitution.
In this system the burden of proof is placed on plaintiffs who, at best, are forced to settle with natural gas companies, thereby sealing the case from public scrutiny, scientific examination and legal precedence. Because the Hagys didn’t sign a non-disclosure agreement with the natural gas companies involved, their legal case gives the public a rare window into how fracking lawsuits play out in reality.
The landman cometh
Dusty and Tamera Hagy unwittingly fell into the trap the day they bought their land in 1989.
“We loved our 81-acre property. It was our life. We had paid off the mortgage and spent a lot of money fixing the place up. We raised our two boys there, buried our animals there and were planning to give our boys some property,” said Dusty Hagy.
Mineral rights, fracking chemicals and federal environmental laws were far from the Hagys’ minds when a pleasant Equitable Production Company representative visited the couple in October 2007.
The representative told the Hagys that four wells were going to be drilled on their property about 100 feet up the hill from their home.
As in Montana, surface ownership is separate from mineral ownership in West Virginia. The Hagys owned their surface estate, but someone else owned the minerals underneath. The Hagys received no royalties and didn’t sign a formal leasing contract, although they did sign plenty of documents because the nice landman told them they had no choice.
The drilling begins
On November 11, 2007 trucks, backhoes, tree cutters and workers converged on the Hagy property uphill and upstream from their home. Equitable outsourced the drilling to BJ Services and for the next six months, the “holler,” or enclosed valley, was flattened for a six-acre well pad.
As Tamera describes it, life during this period “was nothing like what I had expected. This was a huge operation that lasted day and night for eight months. Trucks went up and down the road 24 by 7. The smell of fumes would make you sick. One night we heard something like a giant drill bit drilling and vibrating under our house.”
Dusty visited the well pad often and learned from the job crew that the job wasn’t going smoothly. One worker mentioned that they had hit a lake of water and were moving the rig. Another worker shared in this audiotaped recording how the cement casing “went bad” and was re-cemented.
Of the four open and lined wastewater ponds, one overflowed and later broke, spilling the produced water into the nearby creek that flows from the well pad past the family home. In March 2008, Dusty noticed that the wastewater from another pond was emptied by hose into the woods. After finding foam and oil slicks in the creek next to their well, and then when their large pond turned green, the Hagys knew something wasn’t right.
Dusty lodged a formal complaint with the West Virginia Department of Environmental Protection (DEP) on November 17, 2008, a year after drilling began. DEP records reveal a gas inspector visited the site at the well’s completion and issued no citations. DEP records also reveal the three wells began producing in July 2008 and the wells today continue to produce about 3000 mcf of gas per month.
Dusty recalls the Equitable representative: “We liked him, and he was a nice enough guy in the beginning and we believed everything he told us at face value.” Equitable said the drilling was simple and would cause minimal damage on 1.5 acres of the Hagys’ land. When Dusty asked if the the process used anything dangerous, they were told that only water and sand were used. No chemicals were mentioned. Baseline water testing done prior to drilling supported the Hagys’ belief that their water well was clean and safe.
On October 22, 2007, Equitable paid the Hagys $19,000 to cover surface damages to their land and trees. “I believed the Equitable guy when he said the check was just for surface damages. My property was valued at nearly $200,000. It was stupid to sign that paper. I should have gotten a lawyer,” he ruefully recalls. Because the well pads used more than the original 1.5 acres, Equitable paid the couple another $10,000 for damages on an additional four acres.
Later in 2008, Dustry learned the papers they had signed were actually damage release contracts attempting to exempt Equitable, and all drilling providers, from any and all damages associated with the drilling. “Other than shooting the family dog, this ‘contract’ covered near everything,” says Dusty.
The family gets sick
The family drank, bathed and cooked with their well water form November 2007 to November 2008 during the drilling period. The Hagys were proud of their pristine well water. Even after the adult sons moved out, the boys brought jugs of well water back to their homes.
The Hagys began to notice changes to their water in early 2008. Their water volume was dropping and the water color changed from clear to brown. Often black particles were floating in water drawn from the well. Despite this evidence, Equitable never reported any issues that might explain the contamination.
Beyond this, both Dusty and Tamera said they were oddly tired, and woke up with “bad headaches, like a hangover.” Both smelled an “acid” odor in the house and their eyes would burn in certain rooms.
The Hagys didnt’ make the connection until their youngest son went to his family doctor in Columbus, Ohio in October 2008. The son had complained of nausea and was spitting up blood. His doctor treated him for acid reflux, a disorder he’s never experienced before, and suggested he stop drinking water from the family well. The son’s symptoms disappeared shortly after he discontinued drinking the well water.
Tamera developed a rash that her primary care physician diagnosed as contact dermatitis, a skin inflammation caused by a foreign source. Expert medical testimony in court documetns reveals that the Hagys’ health symptoms were consistent with chemical exposure.
Water testing reveals significant change
Based on the Hagys’ complaints, Equitable re-tested the Hagy water well on November 8, 2008 and the results showed that their water had clearly changed. The turbidity was six times greater after a year of drilling, and levels of iron, manganese and calcium increased significantly. Dusty replaced one water heater during this time because of calcium build up.
Water tests conducted later also revealed arsenic, lead, barium and Bis(2-etheyhexyl)phthalate, an organic compound linked to fracking wastewater. The radon levels of the Hagy well were markedly higher than the eight other nearby wells tested by the US Geologic Survey. The well was never tested for volatile organic compounds (VOCs) or chemicals known to be associated with fracking.
In November 2008 Equitable told the couple “the water was bad” and they should no longer drink it. The company then began supplying bottled water for the family’s use.
Home abandonment and lawsuit
On January 13, 2009 the Hagys vacated their home and have never moved back. “We thought we were going to die,” recalls Dusty.
The family’s relationship with Equitable deteriorated. Dusty began recording phone conversations. Tje company did not respond to the Hagys’ repeated requests for a list of the chemicals used in fracking.
Equitable admitted “your water’s been affected because of our drilling process.”
Dusty assumed Equitable would fix the water issue based on phone conversations he had with the company’s representative, and recorded.
The representative stated,
“for whatever reason the water’s been affected because of our drilling process. But the horizontal portion of it I don’t think had anything to do with it. Something we did had something to do with it. We have done something ito the water, and no one was doubting that, but it wasn’t the horizontal part. I’m not doubtin’ that fact and I don’t think anybody’s doubtin’ that, the horizontal portion wouldn’t affect it.”
Equitable offered to drill a new water well which the family declined because they believed the aquifer itself was contaminated. This belief stemmed from a neighbor’s claim that 30 of his animals had died in 2008 during the drilling. Equitable insisted that any restitution to the couple be tied to signing a non-disclosure agreement, or gag order, meant to silence the Hagys and negate any future claims.
The family hired a lawyer in March 2009, as detailed in a taped audio conversation, and all contact with Equitable ceased.
Bottled water deliveries and hotel payments stopped. While the couple searched for a rental home, they lived in their unheated camper. Their negative health symptoms dissipated the longer they lived away from their property.
The Hagys sued Equitable, BJ Well, Halliburton and Warren Drilling in October 2009. In short, even with the taped calls, drilling records, photos, videos and water tests, the Hagys lawsuit was dismissed in August 2012. Hagy et al v Equitable Production et al stated, “The case presents no genuine issue of material fact for a jury to determine.” The Hagys legal costs as of the date of Laurel Peltier’s article were $175,000.
You can see a chronology of the recorded phone coversations and listen to them by clicking here.
Here is Laurel Peltier’s video summarizing the Hagy’s case:
Update: I recently spoke to Laurel Peltier, the author of the story, and she told me they Hagy’s have exhausted their appeals and they have lost the case.
Coming next: Tomorrow we’ll look at the Hagy’s story as a cautionary tale of how the oil and gas industry has become exempt from the federal laws designed to protect the Hagys, and how those exemptions leave families like the Hagys without recourse to protect themselves from predatory contracts.