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End of the Road for DISH

TexasBarToday_TopTen_Badge_SmallThe Texas Supreme Court has refused to allow DISH, a small town in Denton County north of Fort Worth, and several of its residents, to proceed with its suit against four companies who operate gas compressor stations near the town. The plaintiffs alleged that they were harmed by the noise, odors, light and chemicals from the compressors. The Court held that their claims were barred by limitations, reversing an opinion by the Amarillo Court of Appeals that would have allowed the case to proceed.

DISH caused quite a stir beginning in 2010, out of proportion to its size (it had a population of 201 in the 2010 census). Originally named Clark, the town changed its name to DISH as part of a deal with Dish Network in which all residents received free basic television service for ten years.

DISH first made headlines when its mayor, Calvin Tillman, started complaining about health problems in the town caused by the gas compressors.  Four compressor stations were built together just outside the town in 2005-2008, operated by Enbridge, Atmos Energy, Energy Transfer and Texas Midstream. The compressor stations mark the intersection of eleven gas transmission lines. Compressors are powered by very large combustion engines and used to compress natural gas so it can be transported through pipelines. These very large engines emit exhaust fumes and are quite loud if sound-abatement – such as housing in insulated buildings – is not used. Residents began to complain of the noise and fumes as soon as the compressors were installed, and the residents hired an environmental firm, Wolf Eagle, to conduct an environmental study in 2009. The town complained to the Texas Railroad Commission, the Texas Commission on Environmental Quality, the Texas Department of Health, and the Environmental Protection Agency. The residents’ complaints were featured in a story broadcast on National Public Radio. The TCEQ conducted an air sampling program and the Texas Department of Health Services collected blood and urine samples from some 50 DISH residents.

In January 2010, Mayor Tillman testified about his town’s complaints at an open meeting of the RRC. Then-State Rep. Ron Burnam of Fort Worth asked the RRC to place a moratorium on well permits in the Barnett Shale around Fort Worth until the TCEQ finished its study, and the RRC asked the Attorney General whether it had authority to impose such a moratorium. But the Commissioners also attacked the veracity of the Wolf Eagle environmental study and told Tillman that air quality was not within its jurisdiction. The TCEQ subsequently reported that its three days of air sampling in the Fort Worth area did not find elevated levels of volatile organic compounds. The Chairman of the TCEQ, Bryan Shaw, published a letter in the Fort Worth Star Telegram in June 2010 defending the TCEQ’s study.

The Dallas office of the EPA also got involved. The head of that office was Al Armendariz, formerly a professor at Southern Methodist University, who published a study in 2009 concluding that increased drilling activity in the DFW area would greatly increase pollution and ozone levels. That study resulted in a large debate over the effect of oil and gas activity on air quality in the Barnett Shale. Armendariz threatened to revoke the TCEQ’s delegated authority to regulate air emissions under the Clean Air Act, and in return the Texas Attorney General threatened to sue the EPA. Armendariz later resigned from his EPA post amid congressional criticism of remarks he made about EPA enforcement policies and his fight with Range Resources over alleged contamination of groundwater by Range Resources wells in Parker County.

DISH and its residents filed their suit on February 28, 2011. The statute of limitations for their claims is two years from when the claim “accrues.” The Court said that “a permanent nuisance claim accrues when the condition first substantially interferes with the use and enjoyment of land by causing unreasonable discomfort or annoyance to persons of ordinary sensibilities.” After reviewing the evidence, the Court concluded that the plaintiffs had filed their claim too late.

Calvin Tillman moved out of DISH in 2011, after his five-year-old son awoke with a sever nosebleed that Tillman attributed to the compressor emissions. He co-founded ShaleTest, offering to conduct testing of air and water around oil and gas sites. He was elected to the city council in the town of Aubrey, Texas, north of Dallas, but declined to run again this year.




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