PA Grand Jury on Environmental Crimes Reveals Regulatory Failures

For the past two years, a grand jury empaneled by Pennsylvania Attorney General Josh Shapiro has been investigating what they see as an oil and gas industry that has run amok. The Attorney General admonished the Pennsylvania Department of Environmental Protection (DEP) and to a lesser degree, the Department of Health (DOH), both of which they claim have conducted insufficient oversight of the industry, allowing serious problems to happen over and over again since the arrival of fracking in the Marcellus Shale sixteen years ago.

Mr. Shapiro claims that Pennsylvania should know better, as it is still dealing with the health and environmental impacts of mining and oil and gas operations that have been shuttered for decades. In fact, it was almost 50 years ago that the state Environmental Rights Amendment was adopted to the Pennsylvania constitution by a nearly 4 to 1 margin of Pennsylvania voters. It states:

Article I, Section 27: The people have a right to clean air, pure water, and to the preservation of the natural, scenic, historic and esthetic values of the environment. Pennsylvania’s public natural resources are the common property of all the people, including generations yet to come. As trustee of these resources, the Commonwealth shall conserve and maintain them for the benefit of all the people.

As a part of the state’s constitution, it is a fundamental part of the law of the land.

Criminal Charges

The Attorney General said that the grand jury heard hundreds of hours of expert testimony and impacted residents, and charges have already been issued against two companies – Range Resources and Cabot.

These moves are not without their critics, however. Range Resources pleaded no contest to charges of environmental crimes at several sites, which was compounded by a pattern of not informing local residents about the mishaps and potential impacts. In one of these cases, the grand jury found that the company became aware of a contamination event stemming from a shredded liner in a wastewater impoundment, for which they proceeded to do nothing about for three years, resulting in a contaminated aquifer. The company was further accused of falsifying laboratory data related to the case to affect the outcome of related civil suits.

For all of incidents reviewed, the company was slapped with a modest $50,000 fine, and agreed to a $100,000 contribution to a watershed group in the area. This can hardly be considered a deterrent; for a multi-billion dollar company in an industry where each well costs millions of dollars to drill, this amounts to nearly nothing beyond the routine cost of doing business.

Cabot’s charges stem from an infamous incident in 2008 in Dimock Township, Susquehanna County, that was highlighted in the movie GasLand. One of the wells exploded, and soon afterwards, neighbors began to notice contamination of their well water. Contaminants included methane, arsenic, barium, DEHP, glycol compounds, manganese, phenol, and sodium – a toxic cocktail consistent with hydraulic fracturing operations. As is common with many drilling contamination events, residents lost their water supplies and began to experience a series of health effects from the chemicals that they were exposed to. To this day, Cabot denies responsibility.

Obviously, it is difficult to put an entire corporation in jail, but some hold that employees who engaged in negligence or subterfuge certainly could be, or perhaps executives who oversaw or authorized such activities. Another possible outcome would include placing serious restrictions on the offending companies’ activities within the Commonwealth. As a means of comparison, please take a moment to browse through a list of operators that are banned from drilling activities in Texas. Honestly, this may take a few moments, because there are so many of them. One wonders what it would take ban a company from drilling in Pennsylvania.

But the focus of the Attorney General’s presentation was on the government’s shortcomings. Case after case of water contamination, gumming up expensive well pumps, and making water undrinkable. Many people had similar health complaints, including rashes, respiratory issues, nosebleeds, as well as pet and livestock health concerns and deaths. Mr. Shapiro’s question was clear: how were these problems were allowed to keep happening?

There is a 2020 grand jury seated as we speak, so this is certainly not the end of the story.

This map of 15,164 unconventional violations in Pennsylvania speaks to the issues presented in the report.

View map fullscreen

Moving Forward

The grand jury developed a list of suggestions to move forward. They include:

• Enact a 2,500-foot setback from homes to well sites. This is a very large increase over the current 500-foot standard, which Mr. Shapiro says is clearly insufficient to protect Pennsylvanians, as is evidenced by 16 years of documented problems.
• Disallow secret injections of chemicals in hydraulic fracturing fluids. As FracTracker learned in our project with Partnership for Policy Integrity, companies injected 13,632 secret chemicals into over 2,500 wells in Pennsylvania just five years.
• Enact common-sense toxic waste transportation, so that first responders and the public at large can find out when oil and gas waste has been transported. We find it interesting that the Attorney General chose the words “toxic waste” rather than “residual waste,” which we consider to be a loophole term that was invented to sidestep more stringent regulations.
• Gathering lines for fracking wells need to be regulated based on risk, not size.
• Reporting for air pollution needs to be aggregated by site, rather than reporting dozens of emission sources separately. This will allow researchers to better understand the cumulative risk at such locations.
• A comprehensive public health study of the effects of exposure to contaminated air and water from fracking operations must be conducted. The Attorney General notes that the Department of Health has agreed with this recommendation, and preparations to conduct this study are underway.
• The revolving door between regulators and industry must be stopped. Mr. Shapiro notes that at the very least, this cozy relationship creates an appearance of impropriety, which in itself erodes the public trust. He then went on to mention an instance where an operator hired seven former DEP office employees all at once.
• The Attorney General’s office does not have original jurisdiction on environmental crimes, and must wait for a referral from a district attorney or the DEP. The DEP has not been making such referrals, considering civil penalties and fines to be sufficient. The Attorney General disagrees, and wants to hear directly from the people of Pennsylvania. To that end, a hotline has been setup.

PA Attorney General Hotline

Phone: (507) 904-2643

Email: fracking@attorneygeneral.gov

Mr. Shapiro then proceeded to take DEP to task for its response to the investigation itself. The Department refused to send top staff to testify, he said, fighting with the grand jury investigation every step of the way. They then attempted to mislead the public, saying that they had no opportunity for input. What’s more, the Attorney General said that they spewed industry talking points, claiming that hundreds of hours of testimony were based on hearsay, and that a variety of the serious health impacts experienced by Pennsylvanians were, “not significant.”

In contrast, the Department of Health sent Secretary Rachel Levine to participate in the proceedings, who saw this as an opportunity to uncover her department’s shortcomings with respect to fracking over the past 16 years, and to forge a path forward in which they could do a better job in upholding their obligations.

While Mr. Shapiro characterized the response from DOH as earnest, DEP received no such accolades. “The DEP – let me be clear,” he said, “they need to clean up their act.”

By Matt Kelso, Manager of Data & Technology, FracTracker Alliance