Pennsylvania Attorney General files crimial charges against ExxonMobil; EPA forces cleanup of fracking spill that dumped ‘toxic soup’ into tributary of Susquehanna River

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Guest Commentary on The Bay
By John Messeder

Pennsylvania Attorney General Kathleen Kane may be the first state attorney general to file criminal charges against a company drilling for natural gas in the Marcellus Shale. A recently announced grand jury presentment detailed eight counts against XTO Energy, a subsidiary of ExxonMobil, stemming from a November 2010 leak that dumped nearly 60,000 gallons of toxic “flowback,” some of which was found in a tributary of the Susquehanna River.

Flowback is the toxic soup pumped into a well hole under pressure to fracture natural gas-bearing shale a mile and a half below ground, and then returned to the surface by the gas that has been released. EPA documents say the XTO spill was reported Nov. 16, 2010.

Earlier this year, the Environmental Protection Agency and XTO reached an agreement involving the spill. XTO, would pay a $100,000 civil penalty, and spend about $20 million to bring its flowback storage system into compliance with the federal Clean Water Act.

To determine the amount of the sanction, the EPA used a 1995 formula that weighs how much money the company made while not complying with the Clean Water Act, how much harm to water was caused by the offense, and the company’s ability to pay.

Under the agreement with the federal agency, XTO would not admit any wrongdoing or fault in the event. It may continue to say it has not been the source of any proof that fracking can be a hazard to drinking water.
The settlement was the latest in a string of out-of-court agreements that, for the shale drilling industry, amount to “hush money” paid to keep their operational hazards out of the courts and out of the press.

Marcellus Shale drillers claim they are drilling “responsibly,” but seem to define that adjective as “don’t get caught.” And part of “don’t get caught” involves out-of-court settlements that effectively silence publicity surrounding fracking hazards.

So far, the ploy has worked.

And so far, the Susquehanna River Basin Commission has said no components of the spill have been detected at the commission’s river testing stations.

“Even at the high-end estimate of (about) 57,000 gallons released, the likelihood of impact to the (river’s) mainstem is remote,” SRBC Executive Director Andrew Dehoff said recently.

Dehoff pointed out the flowback fluid is about 95 percent water, and whatever part of a spill is not filtered by the soil would be diluted by the waters of the various streams and, eventually, the massive volume of the Susquehanna River.

But “so far” are the operative words. It may take several years before contamination caused by fracking becomes obvious. History displays ample illustration that by the time we have proven a problem exists, we have waited too long to fix it.

There are three EPA Superfund sites within a few miles of my home, the result of industrial solvents being illegally buried. Pollution plumes have stretched hundreds of yards from the dump sites, at depths normally reached by municipal drinking water wells, and likely has been picked up by nearby creeks, which eventually carry it, with whatever effluent they have collected elsewhere on their routes, to the Chesapeake Bay and millions of consumers between.

The EPA has estimated that drilling, pumping and spraying begun in the late 1990s to cleanse the fouled water from these sites will still be ongoing in 2030.

Clearly, while a single fracking fluid spill likely causes little or no apparent immediate harm, a multitude of such accidents, whether from leaking surface storage facilities or leaking well casings, eventually will be extremely expensive for future water users.

Consider abandoned coal mines. “As far as DEP has seen, there is no option for treatment because of how many places the discharges come out of,” Pennsylvania Department of Environmental Protection spokeswoman Lisa Kasianowitz said recently of the century-old coal mine drainages affecting one Susquehanna River tributary.

Fracking, though largely out of sight of most of us driving along the state’s highways, is widespread, involving thousands of wells. It could pose a similar threat, as companies concentrate on profits and ignore violations with seeming impunity. According to EPA documents, XTO was aware – or should have been aware – of the leak 65 days before it was “discovered.”

While companies are allowed to hide their environmental and human health risks in out-of-court settlements and minimal “civil penalties,” history provides ample illustration that delays in recognizing environmental problems typically lead to expensive mitigation efforts, and to even more costly replacement of the water supplies.

We watch with great interest the prosecution begun by Kane. It is about time this issue gained wider visibility, and demanded more responsibility from the companies extracting huge profits from beneath our feet.

John Messeder writes often about the collisions between water and energy production. He lives in Adams County, Pennsylvania. Contact him at Distributed by Bay Journal News Service.

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