Case 1:20-cv-00651-RP Document 1 Filed 06/22/20 Page 1 of 44
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`UNITED STATES DISTRICT COURT
`WESTERN DISTRICT OF TEXAS
`AUSTIN DIVISION
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`
`
`
`
`DR. TERI ALBRIGHT
`DR. MILTON SHAW
`MAX FOWLER
`PAULA FOWLER
`TRINITY EDWARDS SPRINGS
`PROTECTION ASSOCIATION
`Plaintiffs
`
`
`v.
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`PERMIAN HIGHWAY PIPELINE LLC
`and KINDER MORGAN TEXAS
`PIPELINE LLC,
`
`Defendants
`
`
`§
`§
`§
`§
`§
`§
`§
`§
`§
`§
`§
`§
`§
`§
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`
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`CAUSE NUMBER: 1:20-cv-00651
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`
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`PLAINTIFFS’ ORIGINAL COMPLAINT
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`INTRODUCTION
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`Earth Without Water
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`Imagine earth without water. The soil, with no water in it and nothing growing on it, would be
`lifeless, dead, collapsed into dust, sand, clay or rock….
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`Now imagine the air without water. Clouds provide a buffer from the heating power of the sun.
`Without them it would pour down with no mercy…. There would be no sweet scents, since
`moisture is what conveys smells….
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`If, instead of commanding it, we could conceive of ourselves as a partner or an intelligent
`component of water's own rain and storage cycle, it might encourage us to be more respectful of
`what water can do and more careful of the way we utilize it.
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`With water, we thrive. Without water, there is no life. We must learn to value, conserve, and take
`care of the water we have.1
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`
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`
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`1 https://owlcation.com/stem/The-Importance-of-Water-to-Life
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`

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`Case 1:20-cv-00651-RP Document 1 Filed 06/22/20 Page 2 of 44
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`NATURE OF THE CASE
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`1.
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`Defendants pumped 36,000 gallons of drilling fluid containing at least seven different
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`Class 1 probable human carcinogens into the aquifer near Blanco, Texas.
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`2.
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`3.
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`4.
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`Defendants have not cleaned up the contamination.
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`There is no safe level of exposure to human carcinogens.
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`Contaminating the aquifer on which people depend for water along the Blanco River Valley
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`is not acceptable to the conscience of the community or the law.
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`5.
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`This case is brought against Defendants for alleged violation of the federal Safe Drinking
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`Water Act, 42 U.S.C. §§ 300h to 300h–8, which protects “underground sources of drinking
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`water.”
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`6.
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`The Safe Drinking Water Act prohibits the injection of “contaminants” into the
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`“underground sources of drinking water.”
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`7.
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`“Contaminant” means any physical, chemical, biological, or radiological substance or
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`matter in water. 42 U.S.C. § 300f(6).
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`8.
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`On March 28, 2020, workers attempting to drill under the Blanco River made serious errors
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`and as a consequence pumped 36,000 gallons of “AMC Gel” drilling fluid in the aquifer.
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`9.
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`The plume of drilling fluid moved away from the drilling site under the river and
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`contaminated home water wells a mile to mile and a half away ruining the drinking water of Dr.
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`Teri Albright, Dr. Milton Shaw, Max and Paula Fowler, and others.
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`10.
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`The AMC Gel Safety Data Sheet from the manufacturer of the product is attached. See,
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`Exhibit 1
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`11.
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`The Safety Data Sheet for AMC Gel drilling fluid states it contains two Class 1 human
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`carcinogens, Acrylamide and Silica, which were injected into the aquifer, which is an
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`2
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`Case 1:20-cv-00651-RP Document 1 Filed 06/22/20 Page 3 of 44
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`“underground source of drinking water,” which supplies water to Plaintiffs’ homes, as well as area
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`public water supplies.
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`12.
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`Later testing of this AMC Gel product by the lab at the Lower Colorado River Authority
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`found this material contained numerous undisclosed noxious metals, several of which also are
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`probable human carcinogens.
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`13.
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`Once providing pristine water, among the best in the State of Texas, Plaintiffs’ home water
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`wells remain cloudy months later from the injection of drilling fluid.
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`Defendants have made no effort to clean up the pollution they created.
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`The Defendants have not delineated the size of the plume or all areas impacted by the
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`14.
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`15.
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`plume.
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`16.
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`The plume remains in the aquifer.
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`17.
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`The plume presents a continuing danger of contamination to this underground source of
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`drinking water upon which 10,000 people depend.
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`18.
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`This case is brought by homeowners for damages for violations of the federal Safe
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`Drinking Water Act, as well as Texas state law causes of action.
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`19.
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`Further, plaintiff TESPA seeks forward-looking injunctive protections on a broader scale
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`to protect the aquifer, which is an “underground source of drinking water,” which is supposed to
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`be strictly protected, before it suffers more and greater irreparable damage.
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`PLAINTIFFS
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`20.
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`Plaintiff, Dr. Teri Albright, is a resident of Blanco County, Texas. Dr. Albright owns
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`property with a drinking water well, owns the groundwater under her property, and is a member
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`of TESPA.
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`3
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`Case 1:20-cv-00651-RP Document 1 Filed 06/22/20 Page 4 of 44
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`21.
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`Plaintiff, Dr. Milton Shaw, is a resident of Blanco County, Texas. Dr. Shaw owns property
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`with a drinking water well, owns the groundwater under his property, and is a member of TESPA.
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`22.
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`Plaintiff, Max Fowler, is a resident of Blanco County, Texas. Mr. Fowler owns property
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`with a drinking water well, owns the groundwater under his property, and is a member of TESPA.
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`23.
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`Plaintiff, Paula Fowler, is a resident of Blanco County, Texas. Ms. Fowler owns property
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`with a drinking water well, owns the groundwater under her property, and is a member of TESPA.
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`24.
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`Plaintiff, Trinity Edwards Springs Protection Association is a Texas non-profit with its
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`principal place of business in Hays County, Texas. TESPA has members in Blanco and Hays
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`counties with drinking water wells, and ownership of their groundwater.
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`DEFENDANTS
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`25.
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`Defendant, Permian Highway Pipeline, LLC is a Delaware corporation with its principal
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`place of business in Houston, Harris County, Texas. It may be served through its registered agent
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`for service of process: Capital Corporate Services, Inc., 206 E. 9th Street, Suite 1300, Austin,
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`Texas 78701-4411.
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`26.
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`Defendant, Kinder Morgan Texas Pipeline, LLC is a Delaware corporation with its
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`principal place of business in Houston, Harris County, Texas. Kinder Morgan is the managing
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`partner of the Permian Highway Pipeline project. It may be served through its registered agent for
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`service of process: Capital Corporate Services, Inc., 206 E. 9th Street, Suite 1300, Austin, Texas
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`78701-4411.
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`27.
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`The events giving rise to this action occurred in Blanco County, Texas, which is in the
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`VENUE
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`Austin Division of the Western District of Texas. Therefore, venue is proper in this court pursuant
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`to 28 U.S.C. § 1391.
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`4
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`Case 1:20-cv-00651-RP Document 1 Filed 06/22/20 Page 5 of 44
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`PERSONAL JURISDICTION
`OUT OF STATE INCORPORATED DEFENDANTS
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`28.
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`The Court has specific jurisdiction as the events made the basis of this action occurred in
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`Blanco County, Texas, which is this division, and general jurisdiction as the corporations have
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`their principal places of business in this state. See, Bristol-Myers Squibb Co. v. Superior Court of
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`California, San Francisco County, --- U.S.---, 137 S. Ct. 1773, 1779–80, 198 L. Ed. 2d 395, 2017
`
`WL 2621322 (2017).
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`29.
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`This Court has original jurisdiction over this matter brought pursuant to the federal Safe
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`SUBJECT MATTER JURISDICTION
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`Drinking Water Act, 42 U.S.C. §§ 300h to 300h–8.
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`30.
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`Plaintiffs bring this action pursuant to the federal Safe Drinking Water Act, “SDWA”
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`which allows for enforcement through a “citizen suit” such as this case and provides the basis for
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`federal question jurisdiction. 42 U.S.C. § 300j-8.
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`31.
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`“The district courts shall have original jurisdiction of all civil actions arising under the
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`Constitution, laws, or treaties of the United States.” 28 U.S.C. § 1331.
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`32.
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`Plaintiffs have issued the necessary citizen suit notices of intent to sue and have waited
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`more than sixty days to file this litigation as required by 42 U.S.C. § 300j-8(b)(1)(A). Exhibit 2.
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`33.
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`This Court has jurisdiction to grant declaratory relief concerning violations of the Safe
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`Drinking Water Act pursuant to 28 U.S.C. §§ 2201 and 2202 of the Declaratory Judgment Act.
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`34.
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`This Court has supplemental jurisdiction of the state law causes of action as they arise out
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`of the same event. 28 U.S.C. § 1367(a).
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`5
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`Case 1:20-cv-00651-RP Document 1 Filed 06/22/20 Page 6 of 44
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`FACTS APPLICABLE TO ALL CAUSES OF ACTION
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`35.
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`Kinder Morgan Texas Pipeline, LLC and Permian Highway Pipeline, LLC, hereafter
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`“Kinder Morgan,” are constructing a 42-inch diameter, 430-mile long, high pressure major
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`natural gas transmission pipeline, typically called the “Permian Highway Pipeline” or “PHP,”
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`through the Central Texas Hill Country.
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`36.
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`This pipeline is one of the largest natural gas transmission pipelines in the entire State of
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`Texas.
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`37.
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`38.
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`The pipeline route in Blanco County seeks to cross the Blanco River at two locations.
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`At these two river crossing locations, Defendants planned to use horizontal directional
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`drilling (“HDD”) to drill under the river to avoid the need for an open cut on the surface.
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`39.
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`Boring under a river, rather than open cutting across the surface, is often undertaken in the
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`pipeline industry in an attempt to avoid additional regulatory oversight and Clean Water Act
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`permits required from the United States Army Corps of Engineers.2
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`40.
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`The site of this discharge is the “disappearing” stretch of Blanco River at a location where
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`the river water drains into the aquifer.
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`41.
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`This water flows into the aquifer and then later moves back above surface into the Blanco
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`River.
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`42.
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`The location of this injection of drilling fluid under the Blanco River and adjacent aquifer
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`is part of the Edwards Aquifer Contributing/Drainage Zone.3
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`43.
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`This area is unique in the State of Texas due to the pristine water that permeates this karst
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`region.
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`2 Plaintiffs do not agree with this interpretation of the Clean Water Act.
`3 https://www.edwardsaquifer.org/eaa/history/jurisdiction/
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`6
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`Case 1:20-cv-00651-RP Document 1 Filed 06/22/20 Page 7 of 44
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`“A Karst Aquifer
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`The Edwards Aquifer's geological structure is that of limestone karst. In particular, it consists
`of Edwards limestone. This highly permeable limestone means that large amounts of water can
`be held within the aquifer. In addition to permeability, there are several faults. Water going
`into the aquifer will find its way into the crevices, which dissolves the limestone. To understand
`this, sand aquifers are permeable, but have small pores for water to enter. Aquifers made of
`limestone, such as the Edwards Aquifer, have larger pores for water to go through and remain.
`Water often makes these limestone pores even larger, creating more room for the storage of
`subterranean water.4
`
`Source of Drinking Water
`The Edwards Aquifer is not just a source for rivers and springs, it is an important source of
`drinking water for the people living in the area where the aquifer lies. The state of Texas is
`home to 3 of the USA's top ten largest cities. One of those cities is San Antonio, home to
`1,492,510 people. Located near San Antonio is the capital of Texas, Austin. The city of Austin
`has a population of 947,890 people. At least 2 million people depend on the Edwards Aquifer
`for their water supply. At one time, the Edwards Aquifer was the only source of water that San
`Antonio received its drinking water. The aquifer continues to be a source of drinking water for
`millions of people in Central Texas.5”
`
` The World Atlas, What is the Edwards Aquifer?
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`As of 2019, the Texas Railroad Commission reports that 469,7376 miles of pipeline are in
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` -
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`44.
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`operation in Texas.
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`45.
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`This pipeline is the largest constructed to date in this state at 42” diameter and moving over
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`2+ billion cubic feet and millions of dollars of value of gas a day.
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`46.
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`Defendants decided to be the first to build a major pipeline where others would not and
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`moved forward aggressively as the first to put in a major transmission pipeline through this
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`geologically sensitive karst area of pristine waters of the Blanco River Valley between Blanco to
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`Wimberley to Kyle, Texas.7
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`4 https://www.worldatlas.com/articles/what-is-the-edwards-aquifer.html
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` 5
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` 6
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` 7
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` https://www.worldatlas.com/articles/what-is-the-edwards-aquifer.html
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` https://www.rrc.state.tx.us/pipeline-safety/reports/texas-pipeline-system-mileage/
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` https://rrc.texas.gov/about-us/resource-center/research/gis-viewers/
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`7
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`Case 1:20-cv-00651-RP Document 1 Filed 06/22/20 Page 8 of 44
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`47.
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`On March 31, 2020, Dr. Teri Albright turned on her kitchen sink and the water went from
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`previously crystal clear to mud color. Then, the same happened to the nearby Fowler’s home water.
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`48.
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`Others in this same area have been impacted.
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`49.
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`50.
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`The size of the drilling fluid plume is unknown at this time.
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`Kinder Morgan has acknowledged the milky discharge in the water at the Albright/Shaw’s
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`home and Fowler’s home is from the drilling fluid from their boring activity.
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`51.
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`The homeowners reported the cloudy/milky discharge in the water left a greasy film on the
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`kitchen sink and their skin, which persisted even using soap and scrubbing.
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`52.
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`53.
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`The contamination persists in the aquifer at this time.
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`Defendants explained the event in a statement to the Texas Railroad Commission as
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`follows.
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`“On Saturday, March 28, 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. We strive for zero incidents and minimal
`operations have been suspended while the team evaluates the cause of the loss and
`determines the best path forward. We are working with affected landowners to
`address their needs. We are also consulting with our karst expert and the local
`water district manager to determine the best way to mitigate any current and future
`impacts. All of the appropriate regulatory agencies have been notified.”
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`54.
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`In their statement to the Texas Railroad Commission and public press releases, Defendants
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`concealed the whole truth about what they injected into the aquifer.
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`8
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`Case 1:20-cv-00651-RP Document 1 Filed 06/22/20 Page 9 of 44
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`THE DRILLING FLUID – AN ADMITTED HUMAN CARCINOGEN
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`The workers were using a drilling fluid product called “AMC Gel.”
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`The AMC Gel Safety Data Sheet in Section 11, Toxicological Information, expressly
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`55.
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`56.
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`states: “On the basis of epidemiological data, the material is regarded as carcinogenic to
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`humans. There is sufficient data to establish a causal association between human exposure to
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`the material and the development of cancer.” See, Exhibit 1 (emphasis added).
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`57.
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`This statement in the Safety Data Sheet appears to be based on two additives, Acrylamide
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`and Silica.
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`58.
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`“The International Agency for Research on Cancer (IARC) classifies acrylamide as
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`a “probable human carcinogen.” (emphasis in original). The National Cancer Institute
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`explains: The National Toxicology Program’s Report on Carcinogens considers acrylamide to be
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`reasonably anticipated to be a human carcinogen, based on studies in laboratory animals given
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`acrylamide in drinking water. However, toxicology studies have shown that humans and rodents
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`not only absorb acrylamide at different rates, they metabolize it differently as well.”8
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`59.
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` Silica is an additive in the mix and the International Agency for Research on Cancer,
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`commonly known as “IARC”, creator of the classification system, classifies silica as a Class 1,
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`human carcinogen.9
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`60.
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`Bentonite, apparently the major constituent component of the AMC Gel, is not a benign,
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`inert material as Kinder Morgan portrayed in the public media. Attached to the Notice of Intent
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`as just a recent example is a study of Bentonite by Masoudi, et al., Journal of Toxicology &
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`Industrial Health, Vol. 36, Issue 1, Feb. 25, 2020.
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`8 https://www.cancer.gov/about-cancer/causes-prevention/risk/diet/acrylamide-fact-sheet
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` 9
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` https://monographs.iarc.fr/wp-content/uploads/2018/06/mono100C-14.pdf
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`9
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`Case 1:20-cv-00651-RP Document 1 Filed 06/22/20 Page 10 of 44
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`THE LCRA TEST RESULTS OF AMC GEL
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`61.
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`62.
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`Further, Defendants made a sample of the AMC Gel available to Plaintiffs for testing.
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`Kinder Morgan made some AMC Gel available to Plaintiffs’ consultants for testing, which
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`was sent to the Lower Colorado River Authority, hereafter “LCRA,” lab for testing.
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`63.
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`The LCRA is well respected and widely used by water quality professionals, water districts,
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`and regular citizens to test water quality.
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`64.
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`LCRA’s test results received on June 18, 2020, on the sample of AMC Gel diluted to
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`approximate the concentration of mix in the drilling fluid as it would be at the release point from
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`the drill bit found the following metals present in the AMC Gel sample:
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`Aluminum 146 mg/L
`Arsenic 0.0484 mg/L
`Barium 10.3 mg/L
`Beryllium 0.0472 mg/L
`Cadmium 0.00155 mg/L
`Chromium 0.0604 mg/L
`Copper 0.240 mg/L
`Lead 0.0986 mg/L
`Manganese 3.07 mg/L
`Nickel 0.0460 mg/L
`Selenium <0.00500 mg/L
`Silver <0.00100 mg/L
`Thallium 0.00198 mg/L
`Zinc 0.197 mg/L
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`The following materials found in the AMC Gel, but not disclosed on the Safety Data
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`65.
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`Sheet or Kinder Morgan’s statements to the public and enforcement agencies, also are human
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`carcinogens as determined by IARC, the foremost recognized authority on cancer research in the
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`world.
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`66. Arsenic is a Group 1/Class 1 probable human carcinogen.10
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`10 https://www.cancer.org/cancer/cancer-causes/general-info/known-and-probable-human-
`carcinogens.html
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`10
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`Case 1:20-cv-00651-RP Document 1 Filed 06/22/20 Page 11 of 44
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`67. Beryllium is a Group 1/Class 1 probable human carcinogen.11
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`68. Chromium VI such as hexavalent chromium is Group 1/Class 1 probable human carcinogen.12
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`The specific form of the chromium in the AMC Gel was not identified by LCRA in its test
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`result.
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`69. Nickel is a Group 1 probable human carcinogen.13
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`70.
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`Arsenic is identified in recent research by Evans, et al., as one of the most guilty culprits
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`in 100,000 or more cancers annually due to drinking water, which meets EPA drinking water
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`standards.14 Here, the Arsenic as measured at the point of release/injection into the aquifer was
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`approximately 4x the EPA drinking water standards. Evans and co-authors concluded, “Overall,
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`state- and national-level cumulative cancer risks due to carcinogenic water contaminants are
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`similar in magnitude to the risks reported for carcinogenic air pollutants. Thus, improving water
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`quality at the tap and investing in measures for source water protections represent opportunities
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`for protecting public health and decreasing potential disease incidence due to environmental
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`pollution.”
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`NO SAFE LEVEL OF EXPOSURE TO CARCINOGENS
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`There is no safe level of exposure to a carcinogen.
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`71.
`
`
`11 https://www.cancer.org/cancer/cancer-causes/general-info/known-and-probable-human-
`carcinogens.html
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`12 https://www.cancer.org/cancer/cancer-causes/general-info/known-and-probable-human-
`carcinogens.html
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`13 https://www.cancer.org/cancer/cancer-causes/general-info/known-and-probable-human-
`carcinogens.html
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`14 https://www.cell.com/heliyon/pdf/S2405-8440(19)35974-
`2.pdf?_returnURL=https%3A%2F%2Flinkinghub.elsevier.com%2Fretrieve%2Fpii%2FS240584
`4019359742%3Fshowall%3Dtrue
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`
`
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`11
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`Case 1:20-cv-00651-RP Document 1 Filed 06/22/20 Page 12 of 44
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`72. Former Assistant Surgeon General of the United States Richard Lemen has testified:
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`Lemen testified:
`Q: And isn't it true that this principle that we don't know of any safe level of exposure is true
`for any carcinogen?
`A: At the present time, we aren't able to identify the carcinogenic compounds, what is safe
`and what is not safe. And that is true pretty much across the board for things that cause
`cancer.
`Q: So for anything on this list of carcinogens that we'll talk about later, your answer is true
`that if it is on the list of carcinogens, it's not just asbestos, it's the entire list that you would
`say we know of no safe level of exposure to it, correct?
`A: Basically that's correct.
`Q: Even if it's used even today day-in and day-out in industrial and consumer products?
`A: That's correct....
`
`
`
`
`
`Bostic v. Georgia-Pac. Corp., 439 S.W.3d 332, 340 (Tex. 2014)(fn. 28), see also, Bonnette v.
`Conoco, Inc., 837 So. 2d 1219, 1232 (La. 2003).
`
`73.
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`The Bostic court was analyzing a different issue than presented here, and which is not in
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`issue in this case, which exposures to a carcinogen in personal injury case could be held to be a
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`“substantial factor” in causation of a plaintiff’s cancer, where he was exposed to numerous
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`different asbestos-containing products. This case does not present personal injury claims or
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`similar product liability causation issues.
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`74.
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`The Supreme Court of Arkansas specifically held related to exposures to Arsenic, “With
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`reference to general causation, arsenic is a potent cancer promoter in adults and a complete
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`carcinogen in the fetus (Waalkes 2004). There is no safe level of exposure to a carcinogen. The
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`difference between a low dose of arsenic and a high dose is the amount of cancer it causes in the
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`exposed population. The acute short-term exposure to arsenic overwhelms the body's defense
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`systems and there is resulting injury to the body. The arsenic leaves the body but only after the
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`damage is done.”
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`Green v. Alpharma, Inc., 373 Ark. 378, 391, 284 S.W.3d 29, 39 (2008)(emphasis added).
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`12
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`Case 1:20-cv-00651-RP Document 1 Filed 06/22/20 Page 13 of 44
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`75.
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`“And as far as I know, there is no safe level of exposure to a carcinogen. What we do with
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`our quantitative risk activity is try to define the level which we consider to carry with it a so-called
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`acceptable level of risk, is a very low risk; but I don't know of any-well, any evidence that there is
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`a threshold for cancer effects. So then the answer to your question is that any exposure is going to
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`increase the risk. The higher the exposure, the higher the risk....” Beck v. Koppers, Inc., 3:03 CV
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`60 P D, 2006 WL 270260, at *8 (N.D. Miss. Feb. 2, 2006)
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`76.
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`Best management practices in public health, industrial hygiene, and general medicine
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`emphasize that a person’s exposure to carcinogens should be kept “as low as reasonably
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`attainable,” also known as “ALARA,” or also termed “at the lowest as technologically feasible
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`level.”
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`77. The Supreme Court of the United States has confirmed this best management practice is
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`OSHA’s Cancer Policy. “Wherever the toxic material to be regulated is a carcinogen, the
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`Secretary has taken the position that no safe exposure level can be determined and that § 6(b)(5)
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`requires him to set an exposure limit at the lowest technologically feasible level that will not
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`impair the viability of the industries regulated.” Indus. Union Dep't, AFL-CIO v. Am. Petroleum
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`Inst., 448 U.S. 607, 613, 100 S. Ct. 2844, 2849, 65 L. Ed. 2d 1010 (1980)(emphasis added).
`
`78.
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`There was no amount of this drilling fluid that was or is permited to be discharged into this
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`underground source of drinking water.
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`79.
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`There are methods of boring that are called “dry boring,” which do not need to use products
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`such as this AMC Gel.
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`80.
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`Thus, exposure at “lowest technologically feasible level that will not impair the viability
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`of the industries regulated” is zero for the use of this product in the Blanco to Wimberley to Kyle
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`Case 1:20-cv-00651-RP Document 1 Filed 06/22/20 Page 14 of 44
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`segment of this pipeline as there are acceptable alternatives that can be utilized without the use of
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`this product.
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`81.
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`Prior to Defendants the contamination event, plaintiff homeowners drank water from this
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`aquifer from their water wells without treatment as it was excellent quality.
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`82.
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`In addition to the impacted homeowners, this action is brought in the public interest to
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`pursue exactly what is recommended in the Evans study above. This action seeks to protect source
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`water through enforcement of the SDWA for the past violation, and to seek forward-looking
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`protection through enjoining the use of this and other similar carcinogenic drilling fluid materials
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`in areas in which there is potential for it to contaminate sources of drinking water.
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`THE BORING EVENT GONE WRONG
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`83.
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`The Defendants injected the drilling fluid while attempting to bore a pathway for their
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`pipeline under the Blanco River.
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`84.
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`85.
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`The Blanco River does not have a impervious “bottom” at this location.
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`The water in the Blanco River in this area flows from the surface below ground through
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`porous rock, cracks, faults, fissures, and voids out into the aquifer. Hence, this area is known as
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`the “disappearing segment” of the Blanco River.
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`86.
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`In horizontal directional drilling, “HDD,” a comparatively small pilot hole is drilled
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`underground at a shallow angle of attack and comes back to the surface hundreds of yards, or more,
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`away.
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`87.
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`Then, progressively larger boring tools are used in multiple passes back and forth over the
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`several hundred yards to ream open the diameter of the bore until the opening is sufficiently wide
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`to accommodate the 42” diameter high pressure pipeline Defendants sought to install in the hole
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`Case 1:20-cv-00651-RP Document 1 Filed 06/22/20 Page 15 of 44
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`bored under the river. Just to be very clear, it goes from surface, below ground below the river,
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`then back upward to the surface on the opposite side.
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`88.
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`The HDD equipment looks somewhat similar to a small oil drilling rig turned on its side at
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`an angle.
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`89.
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`This HDD bore hole meets the definition of a “well”, which is defined as: “Well means: A
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`bored, drilled, or driven shaft whose depth is greater than the largest surface dimension; or, a dug
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`hole whose depth is greater than the largest surface dimension; or, an improved sinkhole; or, a
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`subsurface fluid distribution system.” 40 C.F.R. § 144.3
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`90.
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`If allowed to proceed to bore under this river, the danger to the water is present with each
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`pass of which there would be multiple passes to ream the hole out to sufficiently large diameter to
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`fit the 42” diameter pipeline.
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`91.
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`The HDD works similar to an oil drilling rig pumping drilling fluid, also often called
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`“mud,” under pressure to pass through the interior of the drill pipe and out the front end through
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`the drill bit which cuts the pathway.
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`92.
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`The fluid then is supposed to pass between the exterior of the drill bit and pipe along the
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`wall of the bore back to the surface where it carries the cuttings back to the surface.
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`93.
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`Here is a graphic illustrating the general pattern of the flow of drilling fluid and illustrating
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`how it flows back towards the surface against the bore wall, the karst in this area.
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`Case 1:20-cv-00651-RP Document 1 Filed 06/22/20 Page 16 of 44
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`94. Without the sufficient wall strength or resistance in this karst zone to contain the drilling
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`fluid, the HDD method here failed to contain the fluid pumped out of the drill bit.
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`Case 1:20-cv-00651-RP Document 1 Filed 06/22/20 Page 17 of 44
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`95.
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` Thus, the drilling fluid flowed into the soft surrounding structure of the karst permeated
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`with water into a near surface layer of water of the aquifer, which then flowed to the Plaintiffs’
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`home water wells within the next few days.
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`96.
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`The Albright/Shaw and Fowler water wells are approximately one mile to one a half miles
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`away from the release point of the drilling fluid.
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`97.
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`The act of boring/drilling under the Blanco River was the proximate cause of the injection
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`of 36,000 gallons of drilling fluid into the aquifer, which contaminated the water which supplied
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`the Plaintiffs’ homes with drinking water.
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`98.
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`There was no authorization, and could be no authorization, to permit the Defendants’
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`injection of this drilling fluid into this “Underground Source of Drinking Water.”
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`99.
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`The drillers who normally work in this area drill water wells, which similarly are shallow
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`and go into this water filled karst. They know that the karst will make drilling fluid/mud difficult
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`to impossible to contain, so they do not use any drilling fluid such as AMC Gel in drilling in this
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`area.
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`100. Drillers drilling a water well in this area use plain water and a food grade surfactant safe
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`for human ingestion.
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`101. Rather than seeking out drillers familiar with “best management practices” to protect the
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`waters in this area, Defendants proceeded as if they were drilling in West Texas or South Texas,
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`which do not have this karst hydrogeology.
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`102. What remains unknown is why when the drilling operation lost fluid pressure, they
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`continued to pump more and more and more drilling fluid into the aquifer until they had pumped
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`36,000 gallons by their own self-reported account.
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`Case 1:20-cv-00651-RP Document 1 Filed 06/22/20 Page 18 of 44
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`103. Such acts constitute the failure to exercise ordinary care that a reasonably prudent person
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`in the same or similar circumstances would have exercised.
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`104. Such failure was a proximate cause of the injection of 36,000 gallons of drilling fluid into
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`the underground source of drinking water, and the plume impacting and destroying the previously
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`high quality water at the homes.
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`105. Water from the faucets at the Albright home on March 31, 2020:
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`106.
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`Case 1:20-cv-00651-RP Document 1 Filed 06/22/20 Page 19 of 44
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`107. Water from the faucets at the Fowler Home in April 2020:
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`Case 1:20-cv-00651-RP Document 1 Filed 06/22/20 Page 20 of 44
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`108. Water from the well at the Albright Home on June 14, 2020, shows that the contaminants
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`remain in the aquifer.
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`109. The size or exact location of the underground plume of contaminated aquifer has not been
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`delineated at this time.
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`110. All facts are incorporated by reference into each cause of action.
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`111. All causes of action are pled cumulatively and also in the alternative.
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`112. Plaintiffs reserve their right to an election of remedies.
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`Case 1:20-cv-00651-RP Document 1 Filed 06/22/20 Page 21 of 44
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`CAUSE OF ACTION 1
`ALL PLAINTIFFS
`SAFE DRINKING WATER ACT
`UNAUTHORIZED INJECTION OF CONTAMINANTS
`INTO “UNDERGROUND SOURCES OF DRINKING WATER”
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`113. The SDWA was enacted to protect the nation's drinking water by regulating public water
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`supply systems to ensure they meet minimum national standards to protect public health. 42 U.S.C.
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`§§ 300f et seq.
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`114. The purpose of the SDWA also specifically is to prevent underground injection which
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`endangers underground sources of drinking water. The EPA has prepared a helpful overview
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`summary of the SDWA.15
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`115. This Court has jurisdiction to grant declaratory relief concerning violations of the Safe
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`Drinking Water Act pursuant to 28 U.S.C. §§ 2201 and 2202, of the Declaratory Judgment Act.
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`116. Plaintiffs seek a determination that Defendants through their agents violated the SDWA
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`due to injecting 36,000 gallons drilling fluid, which are “contaminants,” into an “underground
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`source of drinking water” without authorization or a permit.
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`117. This contaminant, the drilling fluid, may pose health risks to humans and underground
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`sources of drinking water as there are at least seven different probable human carcinogens in this
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`mixture and there is no safe level of exposure to carcinogens.
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`118. Part C of the SDWA, 42 U.S.C. § 300h-300h-8, created the Underground Injection Control
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`(“UIC”) program, which is overseen by the EPA and may be implemented in part by the states,
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`who can create their own UIC program subject to EPA approval.
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`15 https://www.epa.gov/sites/production/files/2015-04/documents/epa816f04030.pdf
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`Case 1:20-cv-00651-RP Document 1 Filed 06/22/20 Page 22 of 44
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`119. The UIC program protects potential and actual underground sources of drinking water from
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`contamination by underground injection wells. See H.R. Rep. No. 1185, 93rd Cong., 2d Sess.
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`(1974), reprinted in 1974 U.S. Code