Well, there probably aren’t a lot of North Dakotans who think they’d like to see a greater presence by the Environmental Protection Agency in our state right now. That’s unfortunate, because there are a lot of environmental problems here that aren’t being addressed. But fortunately, one of those who would welcome it, in the form of Special Agents from the agency’s Criminal Investigation Division, is our United States Attorney, Tim Purdon. Here’s why.
Nearly three years ago now, a company named Halek Operating, after hitting a dry hole in an oil drilling venture southwest of Dickinson, on the fringe of the North Dakota Badlands, turned around and began using the hole to illegally pump toxic saltwater back into the ground. This was no ordinary saltwater. It was flowback water produced by the fracking process, water which contains a host of fracking chemicals and is very, very salty. It is multiple times more salty than sea water, and much more toxic than oil itself, if spilled.
After inspectors from the state’s Oil and Gas Division busted the company, a fellow named Nathan Garber, who had actually done the dumping of the saltwater, was charged in state court with illegally putting more than 800,000 gallons of saltwater into the ground, threatening Dickinson’s drinking water source. Garber had done the dumping on behalf of his boss, Texan Jason Halek, who owns Halek Operating. Halek Operating was fined $1.5 million in a civil suit. Interestingly, during the dumping process, Garber thought it was such a fine way to make money—disposing of unwanted saltwater from other well-drillers’ operations—that he bought the well from Jason Halek for an undisclosed amount of money, so he could keep the profits from the illegal acts for himself. Subsequently, Halek then claimed he didn’t own the well, which is how he avoided a felony charge, and got off with only a fine, which he does not intend to pay.
In state court, the North Dakota Attorney General’s Office negotiated a guilty plea from Garber for “violation of North Dakota Industrial Commission rules,” in return for a two-year suspended sentence and a $2,500 fine. In essence, both Garber and Halek pretty much walked free, in spite of what Gov. Jack Dalrymple, who chairs the Industrial Commission said: “There will not be any exceptions or leniency when these things happen.”
Well, that was a load of manure, because Dalrymple and his fellow Industrial Commission members, Attorney General Wayne Stenehjem and Agriculture Commissioner Doug Goehring, knew they would never collect the $1.5 million from Halek They knew they were in line behind a Texas court settlement in which Halek owed investors more than $26 million, and Halek had already declared bankruptcy, which earned him the title “flim-flam man” from Texas news media.
Also, it should be noted that this was not Halek’s first run-in with state regulators. A year earlier, the Industrial Commission cited Halek for improperly cleaning up an oil spill, also near Dickinson. Halek faced more than $588,000 in potential fines, but was ordered to pay less than 10 percent of that, with the rest suspended. Well, history has indeed repeated itself. Halek has forfeited $40,000 worth of bonds against his $1,500,000 fine, and that’s it. The Industrial Commission should heed the old saying “Fool us once, shame on you. Fool us twice, shame on us.”
What the oil industry has learned from these incidents is that if they keep some pocket change handy to feed the monkey over in the Capitol building, they can pretty much break any of the rules.
But now there’s a new player involved. The United States Government, through its North Dakota U.S. Attorney’s office, has brought new charges which will send Garber to prison for a good long while, and it’s likely that soon new federal charges will also be filed against Halek. Federal officials were shaking their heads about how Halek had even gotten a drilling permit here, given his past record. But North Dakota is the “Wild, Wild,West” these days, and nothing is a surprise here anymore.
One federal official who was watching all this, and shaking his head, was U.S. Attorney Tim Purdon, our top federal cop in North Dakota.
“This was the largest saltwater-safe drinking water case in the history of the country, in terms of a disposal well incident,” Purdon said in an interview recently. Knowing that the federal government had significantly more resources and expertise in these kinds of cases than the state could provide, Purdon called in reinforcements, in the form of investigators from the Environmental Protection Criminal Investigation Division.
“As oil and natural gas development continues, it must be done in a way that ensures drilling byproducts are disposed of safely and legally,” said Special Agent in Charge Jeffrey Martinez of EPA’s criminal enforcement program in North Dakota. “(Garber’s) disregard of environmental regulation under the (federal) Safe Drinking Water Act put human health and the environment at serious risk.”
Thus the federal charges. And at the completion of Martinez’s investigation, Garber, through his attorney, pleaded guilty this fall to 11 felonies, and faces more than 50 years in prison (as opposed to the probation and $2,500 fine he received from the state). As part of his plea deal, though, the Associated Press reported that he is likely to serve about three years in a federal prison—but that will likely hinge on his willingness to testify against the big fish, Halek.
The timing of all this is interesting. The violations occurred between December 2011 and March 2012. The state first suspected “something fishy” in early February, 2012. The well was shut down on March 5, 2012. By that time, more than 800,000 gallons of toxic saltwater and oilfield waste had been pumped into the ground. It took the state about 16 months to haul Garber into court and Halek in front of the Industrial Commission. It was the end of September, 2013, before the Halek fine was approved by the courts and Garber reached a plea agreement with the state for his fine and probation.
“That’s what the state did, and called it good,” Purdon said. “But this demanded more.”
It didn’t take Purdon long to act. Less than two months later, on November 20, 2013, a search warrant was executed at the well site by the U.S. Environmental Protection Agency’s Criminal Investigation Division. Investigators found significant evidence that there were at least five violations of the U.S. Safe Drinking Water Act and a conspiracy to cover them up—charges a whole lot more serious than the state’s flimsy “violations of the rules” charges.
While it’s the Safe Drinking Water Act violations that will send Garber to federal prison, the conspiracy charge is more interesting, because a conspiracy has to involve more than one person. And that other person is Halek. All Purdon will say about that right now is that the investigation continues, but statements made in Garber’s lengthy plea agreement clearly implicate Halek as the man who told Garber to “keep on pumping” the toxic waste into the ground, even when Garber and Halek both knew what they were doing was illegal.
As for the 800,000 gallons of saltwater lying beneath the ground southwest of Dickinson, well, it is still down there, pending completion of the EPA investigation. The state’s top regulator, Lynn Helms, head of the North Dakota Department of Mineral Resources (DMR), has said “It takes many, many years to clean it up, if it can be done at all.” I’ll monitor that and keep you posted. A spokesperson in Helms’ office told me recently “DMR believes the well does not pose any environmental risk in its current status.” We need to hope they are right.
Purdon’s learned a lot from this. Most importantly, he’s learned that he is going to have to stay involved in oilfield work, because the state just doesn’t have the expertise to do what needs to be done out there.
“When there’s a problem, the state sends in inspectors, and in good faith, they do what they can,” Purdon said. “But what’s needed is skilled investigators, trained experts who know what to look for. We solved this case because of the skill and expertise of these investigators. We brought in the first team. The result was a conviction on 11 felony charges.”
Purdon will continue to make his case for a permanent presence of federal investigators here in North Dakota. The nearest office now is Helena Montana, eight hours away. “We need permanent Environmental Protection Agents here in North Dakota,” he says. “We need them to develop a relationship with the state, to handle cases like these.”
Purdon is not critical of the state’s efforts. They do what they can do. But they need more help. The Garber case is clear evidence of that. The Halek case, still to come, will provide more. Purdon needs the Governor’s office to use its clout to pressure the state’s Congressional Delegation—Congressman Kevin Cramer and Senators John Hoeven and Heidi Heitkamp—to send in federal help. And he needs the Delegation to listen. Heitkamp should be especially attentive and helpful—her first job out of law school was working as an attorney for the EPA, during the Carter administration. She knows how important the agency is.
I think this is the fifth or sixth time I have reported on this story. I’m going to go looking. Okay, here’s the first story–you have to scroll down a ways to find it. Here’s the second story. Scroll down past the raspberries (and notice how naive I was at the time). Here’s number three–scroll down past the bus tour and the wildlife stories. Here’s the fourth one. And number five. You don’t have to go read them all. But you can bet Tim Purdon has. And Purdon won’t say it, but I will. The state has been lackadaisical about enforcement of environmental laws. The oil industry pretty much runs amok here, and millions of dollars of political contributions to state officials help ensure that will continue.
This isn’t the first time Purdon has stepped in and provided federal assistance—generally welcomed, I think—to the state. He brought the Attorney General of the United States here earlier this year to talk about the drug and crime problems in the Oil Patch, and it wasn’t long before our Congressional Delegation was announcing federal financial help in those areas—a bit of an irony in the richest state in America. But if the state won’t do it . . .
Purdon was also instrumental in forcing the change in state law banning open waste pits at oil well sites, when he called attention to the problem by charging six oil companies under the Migratory Bird Treaty Act when their waste pits killed 28 ducks back in 2011. It was the U.S. Fish and Wildlife Service that investigated that incident, not the state Game and Fish Department. Although the charges were later dropped, the state moved quickly to ban open waste pits, to solve the problem. What they didn’t anticipate was that the waste material was going to get pumped into the ground by fellows like Garber and Halek.
And Purdon isn’t the first federal official to express concern about what’s going on in the Oil Patch. Just last month, retiring Theodore Roosevelt National Park Superintendent Valerie Naylor said in a Dakota Country magazine article the state “needs to be honest about what is happening in western North Dakota and address the environmental and social problems. The state needs to do more to protect special places that North Dakotans hold dear and that others come to North Dakota to experience. Otherwise, there will be nothing left of North Dakota after the energy boom ends. There has to be a more measured and conscious approach to development.”
Here on the prairie, it’s not popular to defend the actions of federal agencies. There’s an anti-federal culture here, and that’s unfortunate. The EPA, particularly, has been a popular whipping boy for both our state officials and our Congressional Delegation. Recently, all our state and federal elected officials have been blasting the EPA for a new proposed rule which tries to more accurately define “navigable waters.” The EPA is trying to get a handle on pollution of surface waters across the country. That’s the EPA’s job, and men and women who spend time in the outdoors should be cheering the agency on. Instead, all that comes out at public meetings are things like “It’s a clear example of federal government overreach,” from our Governor. And threats from our Attorney General to “sue the federal government” if they enact the rule. It’s time for outdoor enthusiasts to speak up, like U.S. Attorney Purdon, an enthusiastic hunter, has been doing.
I remember well the day President Richard Nixon signed the National Environmental Policy Act, which created the EPA, and a nation cheered. It was a New Year’s Day bill-signing, and America’s 1970 New Year’s Resolution was to care for our environment. I long for those days, when the EPA officials were seen as the good guys, not the bad guys. I fear for our state when those who are trying to protect us, at a time when we need their help more than ever, are chastised for their work. At a time when our state officials have dollar signs in their eyes, blinding their ability to see how fragile our precious North Dakota outdoors is, in the face of overwhelming development. If it takes the Environmental Protection Agency to do that, well, that’s their job—to protect the environment. If it takes U.S. Attorneys and federal investigators to get the job done, well, then, I’m for ’em.
“Restoring nature to its natural state is a cause beyond party and beyond factions. It has become a common cause of all the people of this country. Clean air, clean water, open spaces—these should once again be the birthright of every American. If we act now, they can be.” –President Richard M. Nixon, January 1970