TESPA Issues Notice Of Intent To Sue PHP For Drinking Water Contamination

Staff Reports

Attorneys acting on behalf of the Trinity Edwards Springs Protection Association (TESPA) Wednesday issued a notice of intent to sue the Permian Highway Pipeline LLC (PHP) and its managing partner, Kinder Morgan.

The lawsuit is over contamination of an underground source of drinking water as a result of PHP construction operations in Blanco County on March 28, 2020.

The notice of intent identifies a class 1A carcinogen on the Material Safety Data Sheet (MSDS) for the drilling mud that contaminated the aquifer and the water supply of area homeowners.

According to TESPA, the organization’s legal team is investigating to evaluate the risks posed by this carcinogen in the water supply, as well as in the air.

Last week, at least two Hays County residents in the area around Chimney Valley Road reported their tap water had turned brown

According to a statement from Kinder Morgan, Permian Highway Pipeline (PHP) experienced an underground drilling fluid loss during construction in Blanco County, Texas; the drilling fluid is comprised of bentonite clay and water. Bentonite is a naturally occurring, non-hazardous, non-toxic clay.

Kinder Morgan said they strive for zero incidents and minimal environmental impacts in all of their construction projects. 

The Notice Letter identifies four federal environmental laws that may have been violated by the contamination of an aquifer that is the sole source of drinking water for rural residents.

Among the allegations are:

1) A violation of the Safe Drinking Water Act by injecting fluids into an underground source of drinking water,

2) Creating an imminent and substantial endangerment to the public under the Resource Conservation and Recovery Act,

3) Discharging pollutants in violation of the nationwide permit #12 issued by the U.S. Army Corps of Engineers, and

4) Discharging pollutants into waters of the United States without a permit. All of these acts have citizen suit provisions but require advance notice of intent to sue in order to establish jurisdiction in the federal court system.

Wimberley Valley Watershed Association (WVWA) and TESPA, have partnered under a memorandum of agreement to pursue this legal action against PHP and Kinder Morgan and to work together more generally for protection of groundwater throughout the karst geological region of Texas.

WVWA has been working on conservation and water issues in the Texas Hill Country since 1996, and TESPA is a legal advocacy group with a strong record of fighting to protect groundwater rights in Hays County.

According to TESPA, Trial Attorney Jeff Mundy will lead the legal team with legal assistance from Houston attorney Jim Blackburn, TESPA board president.

According to David Baker, executive director of WVWA, “When Kinder Morgan announced the Permian Basin Highway back in 2018, I said it was the worst thing to ever happen to the Texas Hill Country and that even the construction would cause harm to our fragile karst aquifers. But this recent event and the discovery of cancer-causing products flowing into drinking water is beyond what I feared most. The residents and landowners in the path of this pipeline are not going to stand down; we will continue to fight tirelessly for our precious water supply. This legal action is essential for the very essence of what we hold dear.”

TESPA executive director, Patrick Cox, PhD, added, “All of us who depend on groundwater for our drinking water supply have been alarmed by the pipeline for almost two years now, but for this contamination incident to happen in the midst of the COVID-19 pandemic and affect the only water we have to drink and bathe in — it is unconscionable.”

Blackburn said, “Kinder Morgan was granted permission to construct this pipeline, and they have violated the trust of the agencies and of the people. What we have witnessed is a worst-case scenario for the people of Blanco and all Hill Country landowners and well owners in the path of Kinder Morgan’s Permian Highway Pipeline. It is unsafe and unwise to continue this project through our karst region, given this huge failure, and we will work to secure such a resolution either through discussions or through litigation.”