Cross-Posted from Public Herald

By Melissa A. Troutman

Over the past seven months, Pennsylvania’s Attorney General has received an influx of phone calls from residents alleging that officials at the state’s Department of Environmental Protection (DEP) have ignored or covered up drinking water contamination, illness, animal deaths, and other impacts they relate to oil and gas operations.

According to agents within the Office of the Attorney General (OAG), the calls began pouring in after a Public Herald report in February revealed over 100 cases of official misconduct were committed by DEP oil and gas staff during investigations of citizen water complaints since 2004.

By May, agents with the OAG added that their office was “getting between three to six calls a day” from residents with DEP fracking-related grievances.

Since June, Public Herald has received reports from residents who have been visited by Shapiro’s agents, but Attorney General Shapiro’s office has yet to announce an official investigation.

Some of the residents who contacted Shapiro’s office have told Public Herald they are hopeful – after all, Shapiro campaigned on the promise to defend Pennsylvanians against pollution from oil and gas operations.

Others are skeptical.

“I don’t hold out any hope for justice for what’s going on,” said Jennifer Lisak, who was visited at her home in Jefferson County by one of Shapiro’s agents in June. “Too many people have been harmed for too many years, and nothing has been done. It just keeps getting worse.”

Shapiro’s agent assured Lisak that her concern would not be ignored and someone would be in touch to follow-up.

After four months, she has not yet heard back from the OAG.

Subjects of Investigation

Over the summer, an agent from Shapiro’s office also visited former dairy farmer Mike Buckwalter, who lives next to a natural gas well pad in Tioga County. According to Buckwalter, the agent seemed very interested in his case and told him they were “looking into possible criminal and civil charges against DEP.”

He told the agent about his experience, which began shortly after his cows stopped drinking their water, became ill, and lost weight.

After the fracking company, Shell, didn’t help, Buckwalter called the DEP.

“Before he even looked at the water, the guy from DEP said that he knew it wasn’t polluted by the gas company,” recalled Buckwalter. “He said, ‘You farmers, your cows get sick all the time. That’s just the dairy business.’

“I couldn’t believe it. This guy is here to test my water, and he tells me what’s happening with my cows is normal.”

Buckwalter says DEP refused to do a full water test and instead tested for a very limited group of contaminants. DEP later determined the company was not at fault for his water problems.

“I know it’s the water. When I moved the cows upstream of the well pad, they drank normally and started gaining weight.”

Buckwalter’s herd was ultimately too sick to keep. He has since stopped farming.

Julie Lalo, Director of DEP’s Communications, sent the following response regarding the Buckwalter investigation:

“DEP thoroughly investigated this matter and sampled the property’s water supply on two different occasions, and also sampled a stream that runs through the property, and did not find evidence that oil and gas activities were impacting either the water well or the stream.” [Response sent on 11/01/17. Public Herald has submitted follow-up questions regarding why the Department will not return to test for all drilling related analytes in the water well.]

Public Herald has received reports from other sources who say that OAG agents told them the opposite of what Buckwalter recalls regarding any investigation of DEP.

Craig Dean from Crawford County told Public Herald that OAG agents informed him they were only investigating oil and gas companies, not the DEP.

When asked for clarification, the OAG responded, “[W]e cannot publicly discuss the status of any investigation once it begins.”

Justice vs. Jurisdiction

Two years ago, in a campaign ad aimed at the oil and gas industry, Shapiro blamed corporate influence over Pennsylvania’s politicians as the reason for lax enforcement of environmental laws.

“The last eight years, the fracking industry has spent over $40 million dollars on lobbying in Pennsylvania. So it’s no surprise that, even though they’ve had over 4,000 violations, all they’ve ever gotten was just a slap on the wrist. “It’s time for that to change…I’ll hold the oil and gas companies criminally liable for poisoning our air and our drinking water. I’ll be an Attorney General who always works for you.” – Josh Shapiro Campaign Video, 2016.

Shapiro campaigned on holding the oil and gas industry accountable, but that didn’t explicitly include a promise to take on the public officials in charge of policing it.

In an email to Public Herald, Chief Deputy Attorney General Steven Santarsiero wrote, “As we’ve discussed, the OAG does not have criminal jurisdiction in oil and gas matters absent a referral from a relevant state agency or from a district attorney’s office.” (emphasis added)

But neither Santarsiero, nor the Attorney General’s Communications Officer Joe Grace, would confirm or deny whether a referral is also required to investigate the actions of public officials.

As previously reported by Public Herald, OAG Director of Communications Joe Grace wrote via email that, “By law, the Office of Attorney General has authority to investigate state officials or employees for criminal conduct affecting the performance of their public duties, whether the matter involves the environment or any other issue.”

But Grace would not elaborate about what kind of DEP “criminal conduct” the OAG could pursue. Would they, for example, prosecute DEP for refusing to investigate a citizen’s water complaint or test drinking water? DEP is mandated to do both according to state law, but has ignored some citizen’s requests for help.

(Examples of this are included in our February report. This evidence was mailed to the Attorney General in April, and his office confirmed receipt.)

“I spoke with [an OAG agent] just last week,” said Craig Stevens, whose water was impacted back in 2011. In 2013, his water tasted like metal, and he developed recurrent nosebleeds.

“[The agent] told me they’ve asked higher-ups at DEP why they weren’t doing their job. So, if they’re talking to DEP, are they going to press charges for the crimes DEP’s committed over the last decade? What about the people who’ve been living on bottled water for eight years? What will happen to them?

“Does DEP get to just keep issuing fracking permits, business-as-usual, and continue letting oil and gas companies get away with not fixing the water?”

The People's Last Hope

“Residents should know that the OAG remains committed to enforcing the Commonwealth’s environmental laws and upholding the rights of all Pennsylvanians under Article I, Section 27 of the Pennsylvania Constitution,” wrote Santarsiero in his email to Public Herald.

Article 1, Section 27 is Pennsylvania’s environmental rights amendment, which grants all citizens the “right to clean air, pure water, and to the preservation” of the environment.

Historically, these rights have rarely been enforced in the court of law, but the amendment was recently strengthened by a Pennsylvania Supreme court decision in June, which found that all Commonwealth agencies, statewide and local, have a duty to protect the public and its natural resources with prudence, loyalty and impartiality.

Barb Lucia, a resident who filed a complaint with the OAG from Warren, PA, spoke favorably of her interactions with Santarsiero.

“He was responsive, and I think he is really looking into things,” said Lucia, who hasn’t heard back from the OAG in a few months.

However, a farmer in Bradford County, who wishes to remain anonymous, chose not to share their story or any documents with the OAG.

“We’ve talked to an auditor general, an inspector general, legislators, the department of health…it’s always the same. Nothing happens. They end up giving the information to DEP, and DEP tells the companies, and the companies start to mess with us,” the source said.

“Obviously, the attorney general is willing to gather information,” they added. “But I don’t think it’s to bring us any justice.”

In our own meetings, Public Herald has found the Attorney General’s agents to be attentive and inquisitive. But the agents were also clear that the final decision to bring any charges, whether criminal or civil, was not theirs to make.

That’s Shapiro’s call.

Main image: Mike Buckwalter holds a water sample collected in the creek where his cattle used to drink. The sample was analyzed by Dr. John Stolz of Duquesne University who’s studying the impacts of fracking on drinking water supplies. © Joshua B. Pribanic, Public Herald