Press Release: TESPA Issues Notice of Intent To Sue Permian Highway Pipeline For Contamination of an Underground Source of Drinking Water

For Immediate Release:  April 8, 2020

WIMBERLEY, TX Attorneys acting on behalf of the Trinity Edwards Springs Protection Association (TESPA) today issued a notice of intent to sue the Permian Highway Pipeline LLC (PHP) and its managing partner, Kinder Morgan, for contamination of an underground source of drinking water as a result of PHP construction operations in Blanco County on March 28, 2020.

Of primary concern, and contrary to public comments by Kinder Morgan, the Notice Letter 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. Investigation is ongoing by the TESPA legal team to evaluate the risks posed by this carcinogen in the water supply, as well as in the air.

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.

Two local advocacy groups, Wimberley Valley Watershed Association (WVWA) and TESPA, are now partnering 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. Well-­‐known trial attorney Jeff Mundy will head up the legal team for TESPA and WVWA 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 in to 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. If there ever was a good time and reason to take legal action against a toxic polluter, it is now. And we have just the team to do it.” 

Jim Blackburn sums up the legal case, “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.”

Press Release with Notice of Intent to Sue and Materials Safety Data Sheet (pdf, 4/8/2020)

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Media Coverage:

• • Hays County puts brakes on gas pipeline project, (Austin American Statesman, 4/23/2020)
  • Commissioners Court Votes to Rescind Road Permits for Permian Highway Pipeline (Hays Co. Press Release, 4/22/2020)
  • Accident Along Permian Highway Pipeline Construction Site Contaminates Hill Country Wells, (Spectrum News 4/20/2020)
  • Drilling fluid spill sparks pipeline lawsuit, (Wimberley View, 4/16/2020)
  • TESPA issues notice of intent to sue Permian Highway Pipeline, Kinder Morgan, (San Marcos Record, 4/12/2020)
  • Construction mishap worries landowners, (Fredericksburg Standard, 4/8/2020)
  • Permian Highway Pipeline LLC, Kinder Morgan to be sued for alleged contamination of drinking water, (KVUE, 4/8/2020)
  • Records: Pipeline company spilled 36,000 gallons of drilling fluid in Hill Country, (Austin American Statesman, 4/8/2020)
  • Water, pipeline companies at odds over future wells, (Hays Free Press, 4/8/2020)
  • Muddy Water: Pipeline construction mishap causes water to turn brown at three area properties, (Blanco County News, 4/8/2020)
  • Well water tests underway after pipeline crew hits Karst feature, (Hays Free Press, 4/3/2020)
  • Accident prompts Kinder Morgan to suspend Hill Country pipeline construction (Houston Chronicle, 4/3/2020)
  • SEE IT: Muddy water ends up inside homes, officials believe it’s tied to Permian Highway Pipeline construction (KXAN, 4/1/2020)
  • Permian Highway Pipeline drilling fluid contaminates Blanco County neighborhood’s drinking water, resident believes (KVUE, 4/1/2020)

Useful links:

• • TESPA
  • TREAD Coalition
  • WVWA’s Response to Court Rulings on the PHP (March 2020)
  • WVWA Resource page

TREAD Litigation Update:

March 23, 2020 Statement by TREAD Coalition re: Denial of Preliminary Injunction in City of Austin, et al v. Kinder Morgan Pipeline, LLC, et al

We are encouraged by much of the Court’s opinion, particularly its discussion of the merits of the plaintiffs’ legal complaints about the numerous and severe deficiencies in the secretive agency process and Kinder Morgan’s failure to implement critical protective measures.  An objective reading of the opinion should give Kinder Morgan pause and lead it to reconsider the process by which it is trying to push through this massive project without public involvement. It is time for Kinder Morgan to choose a path that follows established principles of environmental review under the National Environmental Policy Act and the Endangered Species Act. The Court’s ruling today, while a short-term setback for our efforts, signals trouble for Kinder Morgan if it continues its efforts to use a legal loophole to rush through its pipeline project while disregarding agency directives and environmentally necessary protective measures.