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Kentucky Coal Mine Belonging to W.Va. Governor Causes Flood Damage, Again

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The October flood damage the road near the Thacker house. Photo: Sydney Boles/Ohio Valley ReSource

The rain started around 10:30 p.m. By midnight, the creek in front of Elvis and Laura Thackers’ house had swelled to a mighty flood, uprooting trees, moving boulders and surging right up to the couple’s front steps. The Thackers decided to abandon their home. But when they got into their Jeep, they found the flood had washed the road away, leaving them trapped.

“Water was everywhere,” Laura Thacker remembered. “I said, ‘You don’t know how big it’s going to get.’”

The couple lay awake most of that night, afraid their whole house would be destroyed. That was October 4th, but it’s not the first time the Thackers have faced a situation like this.

Debris left by flood waters on the Thackers’ property. Photo: Sydney Boles/Ohio Valley ReSource

The Thackers live about a quarter-mile downhill from Bevins Branch, a surface mine formerly owned by West Virginia Gov. Jim Justice and now operated by his children. Justice ran for office on his experience as a coal businessman but has faced criticism for unpaid taxesfailure to pay suppliers, and poorly implementing mine safety requirements.

The Thackers were relieved to find their dog, which they feared had been swept away. Photo: Sydney Boles/Ohio Valley ReSource

Despite a history of reclamation violations and complaints by residents, Bevins Branch remains the subject of a years-long dispute between the Justice family and regulatory agencies. Originally scheduled to be completely reclaimed by 2015, Bevins Branch remains unfinished. And according to Kentucky’s Energy and Environment Cabinet, households downhill from the mine site have experienced multiple flooding incidents in the past two years in which the state’s inspectors found the Justice family companies were at fault.

Delayed Again

In the summer of 2014, the Energy and Environment Cabinet began negotiations with the Justice companies to resolve hundreds of outstanding reclamation violations and civil penalties at the companies’ numerous mines in Kentucky. Those negotiations led to an agreed order between the two parties, in which the Justice companies said they would resolve all outstanding issues by Sept. 1, 2015.

By that date, lawyers for the Justice companies were asking for an extension for projects including Bevins Branch. Lawyers for the Justice companies said, “In the fifteen months since the entry of the Agreed Order, the Defendants have performed and completed more reclamation and remedial work than any other mining company in Kentucky. … Amazing work by the Defendants in an economic environment which saw numerous publicly traded mining companies file bankruptcy and go out of business.”

Credit: Alexandra Kanik/Ohio Valley ReSource

A new completion date was set for March 1, 2016.

In a report produced for that deadline, state officials said they had “not observed any measurable progress on highwall reclamation” at Bevins Branch.

Highwall is an industry term for exposed cliffs that result from surface mining, which can put the environment and public safety at risk. Mine operators are responsible for abating highwall and returning the landscape to its approximate original contours.

In the same 2016 report, the state criticized the Justice companies’ analysis of their progress, saying, “It is apparent that the Defendants have essentially completed the easiest reclamation work first, with disregard for the priorities given by the Cabinet.”

On June 3, 2016, a heavy rainfall caused a diversion ditch to flood, sending torrents of water and debris rushing towards the Thackers’ house. That flood caused an estimated $148,000 in damage to the Thackers’ property alone.

More than two years later, Bevins Branch remains an active point of contention between the Justice companies and the state.

Denying Responsibility

The Energy and Environment Cabinet issued two violations in response to the October flood. Those violations required the Justice companies to complete on- and off-site cleanup work or risk a daily fine of $1,500. According to cabinet spokesperson John Mura, the company had begun work onsite, but had not helped restore damage downstream.

“We are anxious for the company to complete its work,” Mura said.

Richard Getty, a lawyer for the Justice companies, disputed the state’s finding that Bevins Branch had anything to do with the flooding downhill.

“The recent four-plus-inch rain that occurred in eastern Kentucky, including Bevins Branch, resulted in severe flooding in eastern Kentucky,” Getty said. “If there are problems that are our fault, we will correct them. If there are problems because of the heavy rain and an act of God that’s beyond our control, that’s not our responsibility.”

The term “act of God” carries particular weight in Appalachia, where in 1972 a Logan County, West Virginia, coal-waste dam on Buffalo Creek collapsed, killing 125 people and leaving thousands homeless. Inspectors found Pittston Coal Company, which owned the site, responsible for the disaster. But in legal filings, the coal company called the incident an “act of God” for which they could not be held responsible.

This state inspection image shows a failure of a water diversion ditch on the Bevins Branch mine. Photo: Kentucky EEC inspection documents

Getty added that the Justice family companies purchased Bevins Branch out of bankruptcy and inherited 504 violations from the previous owners. At the time of purchase, Getty said, there had been 40,000 feet of unreclaimed highwall at Bevins Branch. “Today, because of our ongoing efforts to clean these things up over the last several years, there is less than 2,000 remaining feet. I think it’s actually about 1,600 feet,” he said.

Billy Shelton, another Justice attorney, added that the Justice companies had challenged the state for what Shelton believed to be a wrongly issued citation. This comes after a 2017 lawsuit against Kentucky regulators for attempting to collect fines that the Justice companies argued were an overstep by the government into corporate affairs.

The daily penalty of $1,500 is a drop in the bucket compared to the $2.9 million the state says the Justice companies owe in reclamation penalties. Getty added that the Justice companies don’t believe they’re responsible for that amount.

The Justice companies blamed the October flood on an an “extraordinary” rain event. But state inspection records place the blame squarely on the poor reclamation of the mine land.

“Mining activities have adversely impacted the hydrologic balance,” an inspector wrote. By allowing diversion ditches to fill up with sediment and debris, the inspector concluded, the mining company caused an “uncontrolled discharge” of water runoff.

Environmental Impacts

The process of surface mining alters the contours of mountains, disturbs ecosystems and can increase the likelihood of landslides. Kentucky law requires mine operators to restore mountains to their original contour and reseed the land with native plants after mining is complete.

Dustin White, an activist with the Ohio Valley Environmental Coalition, which opposes mountaintop removal mining, said reclamation rarely goes according to plan. White quoted the Kentucky author and historian Harry M. Caudill, who famously referred to surface mine reclamation as “putting lipstick on a corpse.”

“What we typically find is, most of the topsoil is already destroyed and buried in valley fills, leaving only rocks and clay and dirt on the mine site,” White said.

Court documents show that Kentucky Fuel, the Justice-family entity that operates Bevins Branch, failed to do due diligence in preventing erosion. According to the 2014 agreed order, Kentucky Fuel “exceeded time limits specified in the approved permit application to complete Backfilling and Grading to approximate original contour.”

More recent inspection reports show that similar issues persist.

Getty, the attorney for the Justice companies, says his client has made significant progress in addressing violations that had been inherited from the site’s previous owners. “I believe the Justice companies should be applauded for all of this continuous efforts,” Getty said.

What’s Next

Betty Short is 81 years old. She lives alone in a brown house not far from the Thackers, across the road from the mouth of the hollow. In the 2016 flood, thick mud covered every inch of her property. Short slipped when she left the house in the morning, breaking her collarbone. Short said she got a lawyer, but had seen no money for her injury.

This time, Short was unharmed, and she didn’t think her house had sustained damage. Already she was making the best of the situation. “At least this time I know to stay out of the mud,” she laughed.

Elvis Thacker holds material swept down from the neighboring mine. Photo: Sydney Boles/Ohio Valley ReSource

Still, Short was grateful that neighbors came to check on her the morning after the flood. “You’re really afraid to lay down and go to sleep at night,” she said. “It’s like a nightmare. You never know what’s going to happen next.”

Elvis Thacker said he worried about what might happen, too. He and Laura Thacker had even considering moving so they no longer feel afraid when it rains.

The federal Office of Surface Mining, Reclamation and Enforcement on October 13 issued a violation of its own against Kentucky Fuel: an imminent harm cessation order. OSMRE spokesperson Chris Holmes said that since the cessation order was issued, Kentucky Fuel had moved equipment to Bevins Branch and begun repairing the diversion ditch.

Kentucky Fuel is now accruing $1,500 in state fines every day that it does not complete the required reclamation work. If the work remains incomplete after November fifth, state officials will likely take the company to court — again.

Energy Wars

When Fracking Companies Own the Gas Beneath Your Land

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Natural gas companies have cut down forests and paved over farms on West Virginia private lands, calling it “reasonably necessary” to access subsurface gas they own the rights to. A new ProPublica documentary chronicles the legal battles.

When Beth Crowder and David Wentz bought their 351-acre property in West Virginia in 1975, they knew that they would only own the surface land, not the minerals beneath it. But it didn’t bother them.

“They showed us gas wells, which were these two tracks in a field where a vehicle would go to, to check on them monthly or even less often,” Crowder recalled. “They were really very, very innocuous.”

At that time, Crowder and Wentz did not envision what future drilling technology might entail and the scale of disruption it would bring to their lives. (They subsequently divorced, but both continue to live on the land.)

Since the mid-2000s, however, drilling companies have crisscrossed West Virginia using a technique that allowed them to drill horizontally from one property into gas deposits across a wide area. The boom is reshaping how West Virginia looks and sounds, as the Charleston Gazette-Mail and ProPublica documented last year.

Before 2007, West Virginia issued only a few dozen permits for horizontal drilling. Over the last decade, the state has issued nearly 5,000.

A new documentary released today by ProPublica and CBSN Originals shows how Crowder and Wentz found themselves right in the middle of this boom.

In late 2010, Crowder ran into a survey crew on the dirt road leading to her home. She learned of plans for a large well site on the property, which would include a 13-well “pad.” Crowder and Wentz fought back against the gas driller on their property, Pittsburgh-based EQT. They hired a lawyer and sent letters telling EQT that it did not have the right to build the pad site.

EQT went ahead anyway, clearing 42 acres of forest, some of which Wentz had cultivated for years for timber. The company put in a road, a 20-acre well pad and a storage pond.

Drilling and fracking just one of the wells that EQT built on Crowder and Wentz’s property required almost 11 million gallons of water and 1.8 million pounds of sand, all of which had to be trucked to the site. By comparison, vertical wells drilled on the property previously used just 305,000 pounds of sand in total.

West Virginia law states that mineral owners have the right to do what is “reasonably necessary” to access their minerals. But the legal concept of “reasonably necessary” was developed at a time when gas wells were a few pipes sticking out of the ground.

The majority of gas that EQT extracted from the well site on the property did not come from beneath Crowder and Wentz’s land, but rather from neighboring properties. The 1901 lease gave the company the right to produce gas from beneath the land owned by Crowder and Wentz, but it did not give them permission to use their land to drill into neighboring tracts.

In 2014, they sued EQT for trespassing. In 2017, they won a $190,000 victory in Doddridge County Circuit Court. EQT later appealed to the West Virginia Supreme Court.

Filing a lawsuit against a gas company in West Virginia is a difficult decision. Judges are elected in the state and some, including Supreme Court justices, receive donations from the industry for their election campaigns. Natural gas companies are also valued in communities where work is scarce.

In the last decade, the number of jobs provided by the sector has risen from around 8,000 to over 18,000, with average salaries ranging from $67,000 to more than $117,000, compared with $45,000 for most private-sector jobs in West Virginia, according to an analysis of data collected by Workforce West Virginia.

In 2018, more than half of the natural gas jobs were in the highest paid category, pipeline construction. But those jobs will likely decline in the next few years as the need for new pipelines diminishes.

On June 5, the West Virginia Supreme Court unanimously ruled in favor of Crowder and Wentz. The court said that natural gas companies must get permission from surface owners to use their land to drill into minerals under neighboring properties.

“The right must be expressly obtained, addressed, or reserved in the parties’ deeds, leases, or other writings,” Justice John Hutchison wrote.

For Crowder, Wentz and their lawyers, the decision was grounds for celebration.

“The short answer is, we won. And we won big time,” David McMahon, the couple’s lawyer, told them over the phone.

“It isn’t April Fool’s Day, is it?” Crowder asked, while Wentz, usually taciturn, cheered.

Joshua Fershee, a West Virginia University law professor who followed the case, said that the decision is not going to stop the drilling, but it will cost drillers more. “This is just really about making sure that people are compensated for giving up their rights,” he said.

A representative from EQT said in a statement last month that since November 2018, a new management team has been in charge of the company, and it has undergone a “cultural transformation.” The company now seeks “to maintain more cooperative relationships with landowners and the residents of the communities in which we operate.”

This article was originally published by ProPublica. It was produced in partnership with the Charleston Gazette-Mail, which is a member of the ProPublica Local Reporting Network.

ProPublica is a nonprofit newsroom that investigates abuses of power. Sign up for ProPublica’s Big Story newsletter to receive stories like this one in your inbox as soon as they are published.

Charleston Gazette-Mail staff writer Ken Ward Jr. and ProPublica news applications developer Al Shaw contributed to this report.

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Energy Wars

A Resolution Condemning Pipeline Challengers Passed Easily. A Pipeline Lobbyist Wrote It.

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Protesters gather outside a public hearing in Harrisonburg, Virginia, for the Atlantic Coast Pipeline, a 600-mile-long project that will ship natural gas from Northern West Virginia into North Carolina. A West Virginia resolution praised the pipeline and sharply condemned the citizens’ groups that challenged the project in court. Photo: Nikki Fox/Daily News-Record via AP

A Dominion Energy lobbyist drafted the resolution and bought meals for its supporters in West Virginia’s legislature. He says there’s nothing unusual about it. The public wasn’t told.

CHARLESTON, W.Va. — It was getting late on March 7 in the West Virginia House of Delegates chamber.

There were only two days left in the 60-day legislative session, and lawmakers had been voting for hours.

By 8:30 p.m., delegates had moved past bills and onto resolutions — measures that don’t become law but express the legislative body’s sentiment. They acted on a batch of resolutions on a voice vote: One to name a Kanawha County bridge in honor of the late Charleston police Capt. Jerry Hill. Another proposed a study to see if struggling rural fire departments could be consolidated to save money. There was a resolution to designate the Mountain Cur (a medium-sized, rough-coated brown dog) as the state dog.

But one resolution seemed different from the others, Delegate Evan Hansen, D-Monongalia, said. He asked that House Resolution 11, titled “Recognizing the Importance of the Atlantic Coast Pipeline,” be read and voted on separately.

“I understand this is just a resolution and that it’s late, but I just want to make sure people have read this resolution,” said Hansen, one of two delegates to speak up against it.

House Resolution 11, sponsored by nearly half the delegates, praised the Atlantic Coast Pipeline, a major natural gas project. Then, the resolution sharply condemned the citizens’ groups that challenged the project in court, calling their legal challenge an “all-out assault” with the goal of “forcing its cancelation.”

The resolution passed 80 to 17.

What wasn’t mentioned on the House floor that night was that the resolution was drafted by the pipeline company itself. Bob Orndorff, a lobbyist for Dominion Energy, wrote the resolution and sent it to the House of Delegates, according to documents obtained through a public records request filed by the Charleston Gazette-Mail with the clerk of the House of Delegates.

At the end of January, as the resolution was being drafted, Orndorff took five Republican delegates — Eric Nelson; Jason Harshbarger, who works for Dominion Energy; Scott Cadle; John Hott and Chris Phillips — out to dinner at Fazio’s, an old-style Italian restaurant in Charleston, according to a disclosure filed with the West Virginia Ethics Commission. The bill: $575.

All of those delegates would sponsor House Resolution 11, which was introduced one week later. 

Harshbarger said he normally goes out to dinner with Orndorff during the legislative session, and that the dinner was “more as a social thing than anything.” 

(The other legislators did not return phone calls seeking comment.)

Then, the day before the resolution passed on the floor, Orndorff, the West Virginia Oil and Natural Gas Association and Antero Resources, the state’s largest gas producer, hosted a luncheon that cost $830 for the House Energy Committee, in the office of Delegate Bill Anderson, R-Wood, the resolution’s lead sponsor and chairman of the committee, another disclosure filing shows.

On the floor the night the resolution passed, Anderson called natural gas pipelines “absolutely necessary.”

It’s not abnormal for a lobbyist to provide insight or help draft legislation. But Orndorff’s resolution was different from other pieces of legislation because it singled out a specific group. It sheds light on the close relationship between West Virginia’s growing natural gas industry and its legislative branch, as the Gazette-Mail and ProPublica chronicled last year.

“What I was trying to communicate to some legislators, what I thought was odd, was how it was directed at citizens who were pursuing mechanisms to make sure that laws are enforced. It seems almost like they were undermining their own authority at the Legislature,” said Angie Rosser, executive director for the West Virginia Rivers Coalition, which lobbies on behalf of environmental groups.

Orndorff confirmed that he wrote the resolution but said it was because Anderson asked him for a draft. There’s nothing unusual about that, he said — legislation has to start somewhere.

“I gave them a draft and they took the draft and rewrote it, and they asked me for a resolution, so I said, ‘I’ll give you some talking points,’ and they took it from there,” Orndorff said in an interview.

He also said: “I take delegates out to dinner all the time. I don’t think there’s a correlation between me feeding them and passing a resolution. It’s relationship-building.”

Orndorff said he didn’t actually lobby for the resolution after it was introduced. Any other group was welcome to write its own resolution, too, he said.

Anderson, however, said he didn’t know that Orndorff wrote it. “I had no knowledge of it,” he said. As for the luncheon in his office paid for in part by Orndorff, Anderson said such events are commonly sponsored by energy lobbyists. The resolution, Anderson said, “was not discussed at that luncheon. I don’t do business that way.”

Anderson also noted that the draft he first saw, which a reporter told him was written by Orndorff, was not identical to the resolution that passed. But the wording changes were minor. One changes “the Atlantic Coast Pipeline” to “the Atlantic Coast Pipeline and others”; another deleted the words “extremist environmental” from the description of the groups that challenged the project.

The Atlantic Coast Pipeline is a 600-mile-long project primarily being built by Dominion Energy that will ship natural gas from Northern West Virginia into North Carolina. Although developers say the project is key to transporting gas to the Mid-Atlantic region, citizens’ groups argue that regulators were hasty in their approval of the pipeline. In December, a federal appeals court sided with the citizens’ groups and vacated a key permit, saying the U.S. Forest Service had abandoned its responsibility to protect national forests. Earlier that month, the 4th U.S. Circuit Court of Appeals also issued a stay to the project’s permit from the U.S. Fish and Wildlife Service.

By March, construction on the project had been stalled for three months after the court’s decisions. Developers blamed the environmental groups’ “assaults and delaying tactics.”

“These unwarranted attacks have resulted in regulatory and legal proceedings that have repeatedly delayed both the Atlantic Coast Pipeline and the related Supply Header Project,” the resolution said.

Dominion Energy is among several companies trying to tap into the booming Marcellus Shale formation by building a natural gas pipeline. The work stoppage forced the company to lay off about 4,500 workers and pushed the project’s completion date back by about three years, according to a Dominion spokesman. Originally projected to cost about $4.5 billion, the Atlantic Coast Pipeline might now cost $7 billion. Its developers are appealing to the U.S. Supreme Court.

“Forty-eight hundred men and women lost their job a week before Christmas. Now, your paper doesn’t seem to be sensitive to that,” Orndorff said when asked about his role in the resolution. “Obviously, you will write a story saying that Dominion Energy is trying to influence the process. Yes, that’s our right to do that.”

Some of those workers were able to find new jobs quickly; some were out of work for longer, said Steve White, director of the Affiliated Construction Trades Foundation.

“What I would say is, it was our workers that got hurt when this project was put on hold,” White said. “We really wish that, whatever the problems are, they would be resolved and that our workers would not be the ones to bear the brunt of the legal battles.”

The Atlantic Coast Pipeline isn’t the only multibillion-dollar project that has been stopped after an appeals court ruled that federal agencies had neglected to follow their own rules. The Mountain Valley Pipeline, a 300-mile-long pipeline that will run from Northern West Virginia into Virginia, also was temporarily halted last year after the court said the Forest Service and the Bureau of Land Management ignored rules that protect rivers and forests. That pipeline also is under federal investigation for possible violations of the Clean Water Act. Construction is still underway, with a targeted completion by the end of this year.

A review last year by the Gazette-Mail and ProPublica showed how federal and state agencies tasked with enforcing the nation’s environmental laws repeatedly cleared roadblocks and expedited natural gas projects like the Mountain Valley and Atlantic Coast pipelines.

“It concerns me that, even with all the consequences we’ve seen because of this hasty process or shortcutting process, we still have a resolution where they’re pushing it aside and saying, ‘As quickly as possible, let’s get this done,’” Rosser said. “That remains distressing and really not considering the communities and peoples’ properties being damaged when laws are skirted.”

A Resolution Two Months in the Making

According to records obtained by the Gazette-Mail, the groundwork for the resolution began in January.

On Jan. 8, a day before the regular legislative session resumed, Orndorff stood in front of the Joint Committee on Natural Gas Developmentin a Senate committee room.

He had a request.

“I think it’s important for the Legislature to stand up to these rogue environmental groups to say, ‘You’re going to impact our economy in West Virginia, you’re going to impact job growth in West Virginia,’” Orndorff said, referring to the citizens’ groups that had challenged the Forest Service and Fish and Wildlife in federal court.

“Do a resolution supporting condemning them,” Orndorff said. “I think it’s important for West Virginia to go on record that the end result of their tactics hurt the state economy of West Virginia.”

A simple resolution, like House Resolution 11, is read over once before it’s adopted or rejected, and it doesn’t require action by the other house or the governor. A bill, on the other hand, is formally introduced in the House or Senate before it’s considered in committees, read three times and sent to the other house where it’s subject to the same process. It can also be vetoed by the governor.

A few hours after the committee meeting, Orndorff sent an email to two staffers and another Dominion lobbyist with a note: “Attached is the resolution” we “spoke about today” and a copy of his draft, dated Jan. 7 — the day before he presented to the joint committee.

The resolution he wrote said the Legislature “categorically condemns these irrational, counterproductive and economically damaging assaults on the Atlantic Coast Pipeline and other urgently needed energy infrastructure” and said “some extremist environmental groups have launched an all-our [sic] assault on the Atlantic Coast Pipeline project, with the ultimate aim of forcing its cancellation.”

Almost three weeks later, Robert Akers, the chief lawyer for the House Energy Committee and staff on the Joint Committee, wrote back to Orndorff. The resolution draft Akers sent wasalmost identical to Orndorff’s first draft.

On the night the resolution was considered, which was one night after the luncheon Orndorff hosted for the House Energy Committee, Hansen, the delegate who opposed it, contrasted this resolution with one read right before. The other resolution, adopted on a voice vote without any debate, recognized “the importance of West Virginia’s energy resources and critical energy infrastructure to support economic development and national security.”

Hansen, who is an environmental scientist, didn’t have any problem with the message or language of the other bill, he later said.

As for House Resolution 11, he said: “I just thought this was such an irresponsible issue, I had no choice but to speak up. It was essentially the legislative branch saying we don’t want pipeline companies to follow the law, and that’s a very irresponsible stance for the Legislature to take.”

“The real attack is in the resolution itself,” Delegate John Doyle, D-Jefferson, said on the floor.

Delegate Andrew Byrd, D-Kanawha, voted for the resolution. He said he didn’t realize Orndorff wrote it.

“Ideas can come from your constituents, but drafting is usually put together by a delegate and reviewed by a delegate,” Byrd said. “I’m kind of shocked to hear that” the resolution was drafted by a lobbyist.

Asked whether he’d vote again in favor, he looked at the resolution.

After a pause, Byrd said he would — the “overall concept” was enough to outweigh the harsh language.

This article was originally published by ProPublica. It was produced in partnership with the Charleston Gazette-Mail, which is a member of the ProPublica Local Reporting Network.

ProPublica is a nonprofit newsroom that investigates abuses of power. Sign up for ProPublica’s Big Storynewsletter to receive stories like this one in your inbox as soon as they are published.

Kate Mishkin covers the environment, workplace safety and energy, with a focus on coal and natural gas for the Charleston Gazette-Mail. Email her at kate.mishkin@wvgazettemail.com and follow her on Twitter at @katemishkin.

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Energy Wars

PA Prosecutors Eye Potential ‘Environmental Crimes’ of Oil and Gas Companies

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In this 2015 file photo, people demonstrate against fracking at Gov. Tom Wolf’s inauguration. Eight people were arrested, but charges were later dismissed. Photo: Marie Cusick/StateImpact Pennsylvania

When he ran for attorney general in 2016, Josh Shapiro promised to prosecute the state’s fracking industry. In a campaign ad, he said regulators in Pennsylvania were being too soft on polluters.

“All they’ve ever gotten is a slap on the wrist. It’s time for that to change,” Shapiro promised. “I’ll hold the oil and gas companies criminally liable for poisoning our air and our drinking water.”

Shapiro appears to be living up to his campaign promise. He’s summoned witnesses before an investigative grand jury in Pittsburgh to look into possible “environmental crimes” related to oil and gas activities. Close to Philadelphia, he’s helping Delaware County prosecutors investigate the troubled Mariner East pipeline project, which has caused sinkholes, contaminated well water and leaked gasoline into waterways.

And Shapiro isn’t the only prosecutor in the state looking into the oil and gas business.

Chester County District Attorney Tom Hogan has launched a grand jury investigation of his own on the Mariner East.

“Somebody’s got to step in,” he said in January. “Our citizens are very concerned. As soon as our prosecutors and investigators started digging into this, they said, yes, there are significant problems. Yes, some of them could fall into criminal charges.”

A spokeswoman for Energy Transfer — the company behind the Mariner East, declined to be interviewed. But in a statement, she said there was no “legitimate basis” for an investigation and that the company would “aggressively” defend itself.

After years of complaints from residents living near fracking sites, pipelines and other oil and gas infrastructure, prosecutors are looking into whether any actions taken during the state’s fracking boom crossed the line of criminality.

This wouldn’t be the first time the AG’s office has pursued charges against the oil and gas industry. In 2013, it charged XTO, an ExxonMobil subsidiary, with violating state laws for a spill of fracking wastewater in Lycoming County. In 2011, the state charged a Greene County man with illegally dumping oil and gas wastewater throughout Southwestern Pennsylvania.

Legal experts say it’s too early to say what will happen with these investigations, but they can end in penalties like fines for companies, or probation and even jail time for individuals.

Typically, these prosecutions involve proving the intent or the mental state of an individual or corporation, says David Uhlmann, a former environmental crimes prosecutor for the U.S. Department of Justice. Uhlmann, who’s now a law professor at Michigan, says companies can’t plead ignorance of the laws they’re accused of breaking.

“Ignorance of the law generally is not a defense in the United States and it’s not the case that companies can say ‘Oh well. I had no idea that the law applied to my conduct,’ or, ‘I didn’t realize what the law required,’” he said.

Subpoena power a key prosecution tool

Prosecutors have a high bar to clear — proving a case beyond a reasonable doubt. But they also have tools that other government agencies don’t, says Mark Freed, a former prosecutor in the Pennsylvania Attorney General’s office who’s now in private practice.

Chief among them is the ability to convene a grand jury.

“They have the power to subpoena, so they are very useful in conducting investigations, gathering the evidence that’s needed then for the prosecuting agency to decide they have enough information to make a charge,” Freed said.

Having subpoena power means prosecutors can talk to people who’ve signed non-disclosure agreements with oil and gas companies.

Shapiro and his deputies have used that power to talk with Stephanie Hallowich, a western Pennsylvania woman who testified before the grand jury in Pittsburgh in February. Hallowich, at one time an outspoken critic of fracking, has not talked publicly about her case since signing a settlement with Range Resources in 2012.

Stephanie Hallowich with her children. The Hallowich’s sued after they say drilling activity made their children sick. The drilling companies say there is no medical evidence to link the illness to gas drilling. Photo: Mark Schmerling / Protecting Our Waters

In the lawsuit that preceded the settlement, Hallowich claimed Range Resources and two other oil and gas companies contaminated the air and water at her Washington County home. A letter from Shapiro asked attorneys involved in the case between Range Resources and Washington County resident Stacey Haney to preserve documents and evidence.

So is Range a target of Shapiro’s?

That’s tough to say, said Jamie Colburn, a former EPA attorney who’s now a Penn State law professor.

“You don’t open a grand jury investigation because you know who is guilty. You open a grand jury investigation to find out if anybody is guilty,” Colburn said.

Spokesmen for Range Resources didn’t respond to multiple requests for comment.

The attorney general’s office won’t even confirm there is an investigation, let alone discuss details of the case, though Shapiro has acknowledged (on Twitter) accepting a referral from Delaware County District Attorney Katayoun Copeland to investigate the Mariner East pipeline project.

Can a regulator be a target of an investigation?

Before Hallowich’s lawsuit was settled, it named the Department of Environmental Protection as a defendant. In other high-profile contamination cases, public agencies tasked with safeguarding water supplies have become targets for prosecution.

In Michigan, the state attorney general has charged 15 officials for their roles in the Flint Water crisis, and three have pleaded guilty. Shapiro himself charged Pittsburgh Water and Sewer Authority with more than 150 counts related to lead in Pittsburgh’s drinking water.

So far, there’s been no indication that Shapiro is investigating DEP’s role in regulating oil and gas companies.

Chris Carusone, a former chief deputy attorney general in Pennsylvania, says he wouldn’t bet on that happening.

“I can’t imagine a scenario where the attorney general’s office could investigate the DEP for failing to do its job,” Carusone said.

He says that typically, environmental crimes are reserved for individuals or companies — not government agencies.

“You could have a scenario where a state employee is charged with conspiring with a business entity or other individuals outside of the agency to violate the law,” Carusone said.

Uhlmann, the former Department of Justice lawyer, says prosecutors can only enforce laws already on the books. Criminal investigations, he said, are no substitute for regulation of industry by legislatures and state agencies.

“You can’t go in through the back door and sort of regulate through litigation conduct that you haven’t regulated at the front end,” Uhlmann said.

Most agree on one possible outcome of the investigations: Prosecutors could go through all this and decide they don’t have enough evidence to bring charges. Grand juries in Pennsylvania can last up to 24 months. When they’re done, they can release their findings in a report.

This story is produced in partnership with StateImpact Pennsylvania, a collaboration among The Allegheny Front, WESA, WITF and WHYY to cover the commonwealth’s energy economy.

This article was originally published by The Allegheny Front. The Allegheny Front is produced in Pittsburgh and reports on the environment. More at alleghenyfront.org.

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