In 2009, Lewis was convicted of a felony charge for gaming the safety tests on Roseclare's wells and was sentenced to 3 years probation and a $5,000 fine. He maintains his innocence, saying the wells were rigged by his father, who ran the company's local operations until his death, but said such practices were typical in Kentucky's oil and gas industry. "I'd say it's pretty common," said Lewis, whose probation was commuted in 2011. "But it's not something people go around talking about either."
From Lewis' perspective, injection well operators sometimes have little choice but to try to fool inspectors. Many wells are decades old and were drilled before the current regulations were written. Some are decrepit, their cement aging and cracked. They also can't be easily – or cheaply – repaired.
Lewis, who is now a part-owner of Roseclare and continues to run its operations, said that before wells were due for EPA inspections he would pretest them himself. If one failed, he'd enter problem-solving mode, prepping the site for the EPA's arrival. Two of his employees testified that he ordered them to fabricate and install the diverters.
"You go and work in it and try to get it to hold and it won't hold," Lewis said of the wells. "What are you going to do? It's kind of a ‘Don't ask, don't tell.'"
Randy Ream, the Assistant U.S. Attorney for Kentucky's Western District who prosecuted the case against Lewis, called his scheme unusually elaborate but agreed that efforts to get around the rules for injection wells are common. Sometimes, he said, they result in the contamination of private drinking water wells.
"We have people who have constructed wells that are not certified injection wells, or we have people who will put their brine in a tank and carry it over and put it in somebody else's well," Ream said. "One guy, he's got oil coming out of his shower head."
"There is just so much brine," Ream added, "and you have to get rid of it."
So Many Wells, So Few Inspectors
One obstacle to more effective enforcement in Kentucky and elsewhere, Ream said, is that regulators cannot always keep up with well tests and inspections.
According to EPA records, Kentucky has 3,403 Class 2 wells, which are supposed to be tested for mechanical integrity once every five years. But since 2007, an average of just 253 wells a year have been tested, less than half as many as there should have been to remain on schedule.
A spokeswoman for the EPA's regional office in Atlanta said in an email that only half of Kentucky's injection wells are actively used and only active wells can be tested. She said mechanical integrity tests are performed on each well every 36 months, but did not address the discrepancy between this schedule and the number of tests reflected in EPA data.
The EPA employs just six people to check its wells across the southeast, not just in Kentucky, but in Tennessee and Florida, too. Those same people are also responsible for working with state inspection programs in North and South Carolina, Georgia, Alabama and Mississippi, which have their own inspection staffs.
Most states aim to visit injection sites at least once a year, and some meet or exceed that schedule, EPA records show. Ohio, for example, recently added staff dedicated exclusively to injection oversight and visits its active injection sites every 12 weeks. (Ohio also insists that Class 2 wells meet many of the more stringent testing and permitting regulations it uses for Class 1 hazardous waste wells.)
"Ohio's [rules] are based on what we felt we needed to develop to continue to alleviate any concerns," said Tomastik, of Ohio's Department of Natural Resources. "Obviously without regulatory presence in the field, the operator is not concerned about operating within the requirements."