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The Trillion-Gallon Loophole: Shockingly Lax Rules for Drillers that Inject Pollutants Into the Earth

Despite huge dangers, injection wells have proliferated because they are the fastest, cheapest way to take care of industrial waste.

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“You go and work in it and try to get it to hold and it won’t hold,” Lewis said of the wells. “What are you going to do? It’s kind of a ‘Don’t ask, don’t tell.’”

Randy Ream, the Assistant U.S. Attorney for Kentucky’s Western District who prosecuted the case against Lewis, called his scheme unusually elaborate but agreed that efforts to get around the rules for injection wells are common. Sometimes, he said, they result in the contamination of private drinking water wells.

“We have people who have constructed wells that are not certified injection wells, or we have people who will put their brine in a tank and carry it over and put it in somebody else’s well,” Ream said.  “One guy, he’s got oil coming out of his shower head.”

“There is just so much brine,” Ream added, “and you have to get rid of it.”

So Many Wells, So Few Inspectors

One obstacle to more effective enforcement in Kentucky and elsewhere, Ream said, is that regulators cannot always keep up with well tests and inspections.

According to EPA records, Kentucky has 3,403 Class 2 wells, which are supposed to be tested for mechanical integrity once every five years. But since 2007, an average of just 253 wells a year have been tested, less than half as many as there should have been to remain on schedule.

A spokeswoman for the EPA’s regional office in Atlanta said in an email that only half of Kentucky’s injection wells are actively used and only active wells can be tested. She said mechanical integrity tests are performed on each well every 36 months, but did not address the discrepancy between this schedule and the number of tests reflected in EPA data.

The EPA employs just six people to check its wells across the southeast, not just in Kentucky, but in Tennessee and Florida, too. Those same people are also responsible for working with state inspection programs in North and South Carolina, Georgia, Alabama and Mississippi, which have their own inspection staffs.

Most states aim to visit injection sites at least once a year, and some meet or exceed that schedule, EPA records show. Ohio, for example, recently added staff dedicated exclusively to injection oversight and visits its active injection sites every 12 weeks. (Ohio also insists that Class 2 wells meet many of the more stringent testing and permitting regulations it uses for Class 1 hazardous waste wells.)

“Ohio’s [rules] are based on what we felt we needed to develop to continue to alleviate any concerns,” said Tomastik, of Ohio’s Department of Natural Resources. “Obviously without regulatory presence in the field, the operator is not concerned about operating within the requirements.”

But understaffing seems to be endemic across drilling states, especially where state regulatory agencies are responsible for checking both producing oil and gas wells and injection wells for waste or to enhance production.

In Montana , EPA auditors noted that inspectors are choosing which wells to inspect and have a “significant” workload.  In North Dakota, EPA auditors  also noted the pressures of “exponential” growth and an “increasing workload.” 

To meet the goal of inspecting each well annually, Texas inspectors would have to visit eight wells a day, every day, including Sundays and Christmas. That’s after Texas’ Railroad Commission hired 65 staffers last year to help inspect the state’s 428,000 wells.

Nye, the commission’s spokeswoman, said the state had sufficient funding and inspected each of its commercial disposal wells twice last year.

“The Commission has a stringent and comprehensive review process for these wells,” Nye wrote in an email.  “Railroad Commission staff work diligently to ensure saltwater disposal wells are not and will not be a problem.”

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