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Public Health and Safety Lawsuit Clears First Hurdle

June 1, 1997 | By Hans Voss
Great Lakes Bulletin News Service

"Okay, so my question is, who in the h- -- stands for the public health? What do we have? A total abdication in this state?" asked Manistee Circuit Judge James M. Batzer. Declaring also that he was "amazed and flabbergasted" that neither state government nor the energy industry "stands for the public health," Judge James M. Batzer ruled in April that a lawsuit brought by Filer Township can proceed.

Judge Batzer's ruling came in the first formal court hearing for the potentially precedent-setting case, which was filed against two energy companies in January. The goal of the Township's lawsuit is to protect residents from exposure to poisonous hydrogen sulfide (H2S), a byproduct of drilling in the deep oil and gas-bearing Niagaran Salina formation beneath Manistee County.

The lawsuit is seeking a court order to permanently plug one gas well that contains exceptionally high concentrations of H2S, and to ensure that a second well drilled earlier this year is properly closed.

The issues in the case have relevance statewide. The Department of Environmental Quality and the energy industry contend that state law gives the DEQ exclusive authority to regulate nearly every aspect of oil and gas development.

One defendant, Aztec Petroleum, sought to dismiss the lawsuit, claiming that Filer Township has no authority to oversee the company's operations. Filer argued that the powers granted under the Township Rural Zoning Act give local governments clear jurisdiction to protect public safety.

Judge Batzer ruled in favor of Filer Township.

The DEQ has taken the position that it has no statutory authority to safeguard the public from exposure to H2S. Testimony about the state's role in the case from Aztec's lawyer brought this courtroom outburst from Judge Batzer: "We're agreed that hydrogen sulfide is dangerous, even deadly. We're agreed on that, right?" he said. "Okay, so my question is, who in the h--- stands for the public health? What do we have? A total abdication in this state?"

The Township must cross several more legal thresholds before the lawsuit is tried or settled. If it prevails, said Jim Olson, the Township's lawyer, the case will clarify the ability of local governments to control, and perhaps ban, wells containing hazardous levels of H2S from populated areas.G

For more information, contact: Jim Olson, Olson, Noonan, Ursu & Ringsmuth, P.O. Box 2358, Traverse City, MI 49685-2358; Tel. 616-946-0044.

DEQ Responds to Growing Public Alarm by

Issuing New Safety Rule
Citizens Renew Call: No Poison Gas Facilities in Populated Areas

In June the state Department of Environmental Quality acknowledged for the first time that citizen concerns about hydrogen sulfide (H2S) exposure are "legitimate," and issued a special order to end the practice of venting the poison gas into the atmosphere.

The rule applies to one maintenance procedure, and is intended to prevent another accident like the one that occurred last summer in Manistee Township.

The DEQ action came after citizens, state lawmakers, and U.S. Senator Carl Levin repeatedly pointed out flaws in the agency's safety program. It is the first step in what public interest groups and local government officials hope will be a comprehensive state approach to protect public health from exposure to H2S.

The incidence of injuries and accidents involving hydrogen sulfide appears to be on the rise. Concerned citizens propose two explanations for this:

•The Engler Administration has allowed more wells, pipelines, and processing plants to be installed in populated areas without adequate safety studies.

•State regulators have not been properly overseeing the industry.

For example, after an H2S accident in Manistee Township last summer sent 11 people to the hospital, the state's top oil and gas regulator, Hal Fitch, stated that the concentrations of H2S were not high enough to cause the injuries reported by the victims.

Mr. Fitch, Chief of the DEQ Geological Survey Division, based his statement on the results of a computer model, and declined to conduct a complete investigation which would have included interviewing witnesses, emergency personnel, and victims.

Mr. Fitch also stated that the Department of Environmental Quality does not have the statutory authority to consider public health and safety when reviewing applications for oil and gas drilling permits.

Under intense criticism for failing to act in the Manistee Township accident, Mr. Fitch has since reconsidered his position. "Well, maybe I wasn't quite as clear about this as I should have been," he said in an interview. "We regard public safety as a valid area of oversight, and we will do everything necessary to protect it."

Responded Duane Marquand of the citizens' H2S Committee, "We welcome the DEQ's acknowledgment of public health and safety, and we urge the state to bring in professional health experts to provide oversight of future DEQ activities." G

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