Updates
LAWMAKER CHALLENGES
PENNSYLVANIA DEP'S REPORTING OF GAS WELL WATER SAFETY
By Don Hopey
Pittsburgh Post-Gazette
November 2, 2012
- The Pennsylvania Department of Environmental Protection produces
incomplete lab reports and uses them to dismiss complaints that
Marcellus Shale gas development operations have contaminated
residential water supplies and made people sick, according to court
documents. In response, state Rep. Jesse White, D-Cecil, Thursday
called on state and federal agencies to investigate the DEP for
"alleged misconduct and fraud" revealed by sworn depositions in a
civil case currently in Washington County Common Pleas Court."This
is beyond outrageous," Mr. White said. "Anyone who relied on the DEP
for the truth about whether their water has been impacted by
drilling activities has apparently been intentionally deprived of
critical health and safety information by their own government."
************
MORE:
The letter sent
to Rep. White alerting him of these issues can be found at:
http://www.scribd.com/doc/111821139
The deposition of
TaruUpadhyay, technical director of PA DEP Laboratory can be found
at:
http://www.scribd.com/doc/111821978
FEDERAL AGENCIES PROBE RANGE RESOURCES INC.’S YEAGER
MARCELLUS SHALE GAS DRILLING SITE
June 9, 2012
- Federal health and environmental agencies are
investigating whether Range Resources Inc.'s Yeager
Marcellus Shale gas drilling site in Washington County
caused toxic air and groundwater pollution that damaged
the health of nearby residents. The Atlanta-based Agency
for Toxic Substances and Disease Registry said this week
it has been working with the U.S. Environmental
Protection Agency since March 2011 to assess health
problems reported by residents living in a valley below
Range's wastewater pond and a drill cuttings pit at the
Amwell Township site.
Story
SHALE
DRILLING CONTAMINATED WATER, FAMILIES SAY IN LAWSUIT
May 25, 2012
- Three Washington County families claim in a lawsuit
that they face serious health problems, including a
heightened risk of cancer, because Range Resources Inc.
and two water testing laboratories conspired to alter
test results and exposed them to hazardous chemicals.
The lawsuit,
filed today in Washington County Common Pleas Court by
attorneys John and Kendra Smith, is based on information
contained in hundreds of pages of water test reports and
documents, many subpoenaed from Range and other
defendants. In addition to Range, defendants named in
the suit include 12 of the drilling company's
subcontractors or suppliers, two individuals and the two
water testing laboratories. A jury trial is requested.
Story
LAWSUIT CONTENDS WATER TEST RESULTS ALTERED TO BENEFIT
GAS DRILLER
May 25, 2012
- A lawsuit filed Friday in Washington County Court
contends a gas-drilling company and water-testing
laboratories conspired to alter test results,
endangering the health of the three families that
brought the suit.
The lawsuit
centers on the Yeager farm property on McAdams Road in
Amwell Township and contends that groundwater in the
area has been contaminated by chemicals used in
hydraulic fracturing, commonly called fracking. The
drilling method is used to extract natural gas hidden in
deep shale formations.
(Newspaper
story link was removed)
JUDGE: SUIT AGAINST PA. DEP REGARDING MARCELLUS SITE TO
PROCEED
March 23,
2012 - A senior Commonwealth Court Judge this week
issued an order that will allow a suit filed last year
by an Amwell Township woman against the state Department
of Environmental Protection to proceed. The DEP as well
as Southpointe-based Range Resources, which intervened
in the case, had sought to quash the suit.
Beth
Voyles, whose farm is located 800 feet from oil and gas
well drilling operations and a waste fluid impoundment
constructed by Range Resources, alleged in court that
the DEP did not investigate myriad alleged violations
there. She is seeking an order requiring DEP to conduct
a full investigation into her complaints.
(Newspaper
story link was removed) |
The Pennsylvania DEP, another
Red Herring?
By Eric Belcastro
(Originally published in the Canonsburg Patch on
August 15, 2011)
A recently
amended lawsuit by Beth Voyles of Amwell Township, Washington County
against the Pennsylvania Department of Environmental Protection is
revealing a disparity between the agency's popular perception and
its actual behavior. However quick the DEP is to dismiss her
concerns, there are many who share similar experiences in
Pennsylvania. In listening to their testimony, we can see that
complaints and concerns about the behavior and motivations of the
DEP are quite common. But why? Is it because there isn't enough
staff to keep up with all of the complaints? Is it just bureaucracy?
The revolving door? What about other state agencies?
Sign posted near another home in Amwell Townsip
April 23, 2010
As Smith Butz, LLC has done an excellent job
in documenting the events involved in this case, we can begin here
and use it is a jumping off point to explore further criticisms of
the DEP. The aim here is to search for a greater context with which
to understand these criticisms. If you are curious, I would
recommend reading the original documents prepared by Smith Butz,
LLC of which I am only summarizing from here in the first section of
this article.
The lawsuit was put forward with a rather
humble but important aim, that the Court would require the DEP
simply to "perform its required duty under Pennsylvania law and to
perform a full investigation of her complaints regarding air quality
(odor) and water quality (contamination)" as a result of a Range
Resources waste impoundment and drilling operation, the Yeager site,
that she lives in a valley next to. The initial application was
denied without taking any testimony based only on a statement by the
DEP that the investigation was ongoing.
Unfortunately the behavior of the DEP after
this date continued just as it had prior to the lawsuit. Documents
from the DEP were produced "in seemingly random fragments" with
"clearly missing pages" and other documents would not be produced at
all. The conclusion here being that the DEP is either "accepting
such fragmented documents from Range, or that the DEP is selectively
refusing to disclose certain documentation."
This is a rather disappointing response, and
one is left wondering what picture those withheld documents might
paint. But even the fragments of documents that were provided
revealed that the DEP "knowingly and consistently" turning a blind
eye to a "myriad of violations" at the location, or was oblivious to
them. But what violations? What were the problems that caused Voyles
to turn to this state agency, the only one that she can supposedly
turn to, for protection?
Next to the Yeager drill site, the "frac-water"
impoundment was constructed and filled for the first time in the
spring of 2010. It is a several acre reservoir with a capacity of
approximately 321,000 barrels, holding water and chemicals returned
to the surface of the earth after they have been pumped into the gas
wells. Voyles experienced "numerous health ailments, including but
not limited to rashes, blisters, light-headedness, nose bleeds,
lethargy, and medical testing has revealed elevated levels of
arsenic, benzene, and toluene in her body." These chemicals are
consistent with the chemicals used in fracing and that would be
present in the impoundment.
Needless to say, after the impoundment was
installed the quality of her life quickly plummeted. Of course, if
rashes, blisters, light-headedness, nose bleeds, and lethargy
weren't enough, her farm animals and dogs also suddenly died, with
other dogs having aborted pregnancies and delivering litters of
stillborn offspring.
But, though her position in a valley is a
vulnerable one, she is only one of several neighbors living near the
Yeager drilling site and certainly not the only one affected by the
activity. Others living in the vicinity of the impoundment and
drilling site suffered similar health ailments as well as
contaminated water running grey, Mr. Yeager himself being the most
recent of these neighbors. As Voyles shares the same water table as
these neighboring properties she is in the same position as her
neighbors. On top of the water contamination several cows died
suddenly at the same time on a neighbor's farm.
To add to the festivities, "discolored, oily,
bubbling fluid" was also found flowing from the Yeager site and into
a creek, and this flow "appeared to be have been present for
months." Range's application for the impoundment provided blatant
evidence that the DEP's requirements for the design and construction
of the impoundment were not met. Range did not provide any
groundwater monitoring wells which makes it very difficult or
impossible to determine when and if the impoundment leaked, and the
DEP issued no violation for this lack of groundwater monitoring.
Instead the DEP simply approved their application. Even after
numerous reports of holes and tears in the primary impoundment liner
that needed to repaired, the DEP still required no monitoring
system.
After the impoundment was completed and filled
Voyles had noted that sulfur-like odors were emanating from the
impoundment, and the odors in general where often overbearing, even
filling the house and making difficult to breath. In response, the
DEP consistently denied that anything, like hydrogen sulfide, could
be present that could be causing this odor. This is especially
alarming. Hydrogen sulfide is heavier than air, and it often settles
in low-lying areas where it can accumulate in concentrations that
can injure or kill livestock, wildlife, and human beings [1].
Remember that Voyles lives in a valley below the impoundment area.
Ignoring any possibility of hydrogen sulfide seems reckless in the
extreme. There have been numerous deaths recorded by exposure to
hydrogen sulfide; for instance, workers working on oil and gas wells
in West Virginia. But even though the DEP denied that it could be
present and did not respond to her requests to investigate,
correspondences with Range reveal that DEP requested that Range
treat the impoundment to remove the smell, and also that they issued
no citations or violations to Range in the process.
Range hired Multi-Chem to take care of the
sulfur smell, and 819 lbs. of Acrolein, an EPA listed Extremely
Hazardous Substance, was dumped into the impoundment. Of course, the
DEP never informed Voyles "that in fact the Yeager Impoundment was
causing the odor, that the DEP had asked Range to take action, that
Multi Chem treated the Yeager Impoundment with a chemical highly
dangerous to humans, or that Petitioner [Beth Voyles] had been
exposed to Hydrogen Sulfide."
And still, the DEP required no groundwater
monitoring system, "being fully aware that in the event there was a
leak, Acrolein would necessarily leak into the waters of the
Commonwealth in violation of the CSL."
Are we done yet?
Nope.
Voyle's water well began to run dry. Laura
Rusmisel of Range stated in an email that "the construction of the
Yeager impoundment...on top of the drought conditions for the summer
could have possibly effected the spring by removing a large portion
of tributary drainage area that may have supplied the shallow spring
with surface water runoff." Again, the DEP issued no citation, nor
informed Voyles of anything, even though "diminution of quantity of
a water source violates the Oil & Gas Act."
As far as the question of water quality,
analysis was performed by Microbac, Range's contract laboratory. The
technician collecting the sample noted the water was cloudy, dirty,
and possessing an odor that became more powerful over time. Later
tests noted "staining, bad taste, odor, cloudiness, and oily film."
The results of the first tests revealed the presence of 60 mg/L of
1,4 Butanediol, a hazardous man-made industrial solvent (glycol), in
Voyle's spring water, and 20.4 mg/L of 1,4 Butanediol in her well
water. This substance has also been linked to "behavioral changes,
depression, fatigue, loss of concentration, respiratory depression
and vomiting, all of which may have delayed onset." Again, the DEP
issued no citation or violation, did not investigate why the
substance might be in her water, and did not even inform Voyle's
that the substance was present in her water or that her water was no
longer safe to drink. Microbac also re-printed copies of its
laboratory analysis "despite the fact that no new samples had been
taken and no new analysis had been done," specifically omitting the
findings of 1,4 Butanediol without any explanation as to why it was
omitted on the re-prints.
When Microbac did return on November 19 2010
and again on November 23, "either on its own or at Range's
direction, did not include testing for the presence of
1,4-Butanediol." No explanation was provided by Microbac as to why
this was. Considering that it had already been found in the water,
and that it is toxic to humans, the only logical conclusion of
someone interested in protecting human health or the environment
would be to test for it.
Testing by Microbac on the Yeager impoundment
itself, as well as from two natural springs that collect water from
the same water table as Voyle's well provided "clear evidence that
the Yeager Impoundment was, in fact, leaking into the groundwater
and into the Petitioner's well and spring." Even Range Resources
"acknowledged that Chloride levels were especially indicative of a
breach of the impoundment liner." Smith Buttz, LLC notes in the
Amended Petition for Review that "Amwell Township uses cinders, not
road salt, to treat its roads and the Yeager springs are situated
up-gradient from any road" and thus claims made by Range Resources
of road salting being the source were without substance.
Ethylene Glycol, "a component of numerous
compounds that Range uses in Washington County," was also found in
the springs. No problem though, because Microbac set the Reporting
Limit to 20.0 mg/L, twice the reporting limit consistent with the
national laboratory standard of 10 mg/L, and twice the Reporting
Limit that Microbac itself uses in all other testing it has done
prior to and at the same time of the analysis. Of course, if it's
below this limit, one doesn't have to report it. In addition arsenic
at fifteen times the level suggested by the EPA as well as glycol
was found in independent testing of Voyle's water well.
Again, the DEP "issued no citation, levied no
civil fines, took no further action and did not inform the
Petitioner that a dangerous chemical was present in her water
table."
And so this story continues with a brine spill
near her home, excessive truck traffic, overpowering raw sewage
smells that entered into and surrounded her home from the
impoundment, and so on. I would recommend reading the details. What
is most alarming is that these types of stories are common for
anyone living next to a drill site and waste impoundments or
compressor stations, and Voyles' case provides a window into their
shared experiences, though it is the content related to the DEP that
we concentrate on here.
Before searching for a deeper context, it
would be wise to read the statements of other Pennsylvanians on
their experiences with the DEP after Marcellus Shale drilling began
on or next to their homes. I have included at the end of the article
links to the interviews where many, but not all, of the statements
have been previously published so that the interested reader can
learn more and gain some context. We are all fortunate that these
people have spoken openly and honestly about their experiences.
A Few Statements about the DEP by other
Pennsylvanians
Chester Slesinger, Cambria County resident:
"Our water well became contaminated in Dec 2009. The contaminants in
my water pointed to gas well contaminants. Of course the DEP and the
driller denied this. We spent the last 18 months hauling water from
my daughter's boyfriend’s house and a number of people tried to help
to get answers and action on this matter. Finally this past week a
lawsuit was filed in Cambria County Court against the driller, T&F
exploration. I can now share the details of what my attorney's group
found, and I thank all of them. Even if the court does not find in
my favor, I now know the truth. A gas well expert with over 25
years’ experience hired by my attorney, after meeting with me and
reviewing all the drilling records and water samples, found the
answer in the drilling records. Drilling logs show that when
cementing the casing in 2009 15 barrels of cement (about 5600 lbs.)
plus water and drilling fluids disappeared into what is called a
"thief zone" or a fracture which obviously led to my drinking water
fracture. This happened in Dec 2009 and again in Oct 2010 when the
well was abandoned and cemented shut. The documented loss of cement
and the chemicals in my water match. The expert hired by my attorney
says that the DEP and the driller had the documents the whole time
while they both denied any proof existed. These documents will show
this proof which is described as undeniable."
Darrell
Smitsky, Hickory resident: "We had our water sent to an
independent lab for testing. The amount of toxic chemicals were off
the chart. We had the Department of Environmental Protection come to
the house to take a sample of the water months ago and we waited and
waited for their report. We're still waiting, we still have no
report back from them. My landlord called the DEP and they said it
was safe to drink. The day they took the water sample I took a
picture of our water. You won't believe it. Brown oily water flows
through our pipes. The DEP took three vials of this water for
testing. The independent lab told us not to drink the water, not to
use it for cooking, and not to use it for bathing. People have their
pockets padded though. What are we to do?"
Smitsky well water
June
Chappel: "Well, the first time he [DEP agent] came up here he
said oh, there's nothing he can do because I called about the smell.
I just feel like he really didn't do anything to help me. I mean I
feel like I did all the talking and fought to get that pit taken out
of there. I went down to their office like three or four times. I
called several times and complained about the smell. My son and I
were sick for like a year with just terrible headaches. It was just
this sickening smell of gasoline all the time and you just couldn't
get away from it...Every day I would get up and there was a film on
my mirror, an oily film. So I told him I won't sign any releases at
all if something happens to me I am going to go after them.
Especially if it's my health."
Impoundment behind June Chappel's house
Myers family: "One of the DEP agents that was
working in this area is being investigated by the EPA. Whether it
goes any further, I don't know...The DEP is a big joke...Several of
the Atlas Energy gas employees used to be DEP agents. They had come
on site dressed as a DEP agent and could take a look at something
and say, well, at the DEP office we would not consider that a
problem. That happened just up the road here, a 3,000 some gallon
[in fact, a 10,500 some gallon spill on October 6 2009] spill. That
spill went into Buffalo Creek. Atlas energy did nothing to clean it
up. They just let it go. The DEP allowed it. The man that claimed to
be DEP was questioned and he said, "Oh I'm not DEP, I work for Atlas
Energy." However he was wearing the jacket and representing himself
in a roundabout way. He did not say "I am DEP," but he said "we at
the DEP would not do this" or "would not do that." If I did that the
DEP would have me arrested. When I turned it into the DEP they swept
it under the rug...so you tell me what good the DEP is doing for
us."
Kyle Langfourd, geologist: "Basically for
about the past three years my life’s been unsettled from hearing
drilling rigs, losing many, many nights of sleep because of fracking
and drilling...If no one is put into the position of being next to a
frac pond as I have the smell from frac ponds is horrendous. You
don’t have any idea how bad it is. You can tell people living down
the road “Ah, I’m miserable, our lives are miserable, we can’t
sleep, we can’t eat, we can’t smell, we can’t breathe.” And they’re
like “Yeah, yeah, yeah.” But until they walk in your shoes, no one
has the sense of what you go through…The DEP is not policing
anything. What they are policing is the public, trying to make them
feel better about all of these impacts that are happening to them,
but they're actually not doing anything about these impacts. The
cost effectiveness of the fines they are giving these guys are a
joke. If I was running one of these oil and gas companies I'd be
doing everything the same way because if I have to pay somebody to
come in and haul off frac water, condensate water versus dumping it
over the hill and paying some measly fine, it's more cost effective
for me to dump it over the hill, by far. And that's what they are
doing."
Puskariche family: "And one thing about these
gas company people – they lie. I don't even think they know how to
tell the truth...That's like the DEP, I'm down there fighting them
over all this contamination. All my stuff out of the basement is
ruined [the basement was flooded with sewage, which the gas company
later admitted that they caused]. I told them I was going to burn
it, and they [the DEP] told me they would have to fine me because,
you know, contamination you're not allowed to burn. But, I said,
"They can drain all their stuff down across the road and ruin your
ground, people's water but that's okay – we're not going to fine
them!" Oh, we got into it a lot of times with the DEP...Nobody
wanted to help. And to this day no one is helping...The DEP is not
for giving, they are for the gas companies...I say they get paid off
from the gas company, because what happened here - somebody should
have done something. Somebody is getting paid off."
Bedford County resident: "And they [the DEP]
said that they smelled and tasted the water which is true. They said
that they did not smell or taste anything unusual and that I said
that I didn't that day either. I never would have said that. Why
would I call them out there if my water didn't smell or taste funny?
Why would I waste my time? And when they [the DEP agents] came in,
when I though they still kind of were going to help me out. The one
guy tasted the water, he said to me, "Huh, it's kind of like a
musty, metallic..." and I said, "Yes!" I got so excited because I
thought that's exactly how I would have described it. So that means
you tasted it, you smelled it, and now you're going to help me. And
then for him to publish in his final determination that he smelled
or tasted nothing, you know I think give credit where credit is due,
but that has not been my experience. They have flat out lied. They
are definitely not on the side of protecting us, at all. They will
find any way they can to get out of having to do anything for you.”
“And when they were supposed to bring an air
quality meter we had a meeting with actually the [DEP] regional
director Kelly Burch. And he said, you know, there are these
monitoring devices we can put them along the perimeter. And great,
great, thank you because that will give some validity to everything
that we're telling you. And it never happened. And all of a sudden
here is no such thing. Well, of course there is such a thing. I'm
not an idiot, I used to work in a forensics lab. Of course there is
such a thing. Nope, no such thing. Can't do it."
And another resident agrees "The air quality
issue is just another issue that they have absolutely done nothing
about. [After having another meeting with them] the DEP came right
out and told us, as far as this air quality stuff, "Don't even call
us. Don't call us again." "
And from a resident in Hickory "And I asked a
DEP official...I said can't we do something to measure the air
quality and he said there is nothing you can do. Even if you found
it was putrid. He said I couldn't do anything about it."
Hickory resident: "That's another lovely story
there that I noticed, that I called the DEP on, and the DEP was
unaware of it. They were pumping from his contaminated pond and the
DEP said "Yeah, it's contaminated," and he had a fish kill and
everything...I told the DEP, I said, "They're taking the water out
of a supposedly contaminated pond and throwing it into a clean
pond," and they said, "Oh no, they're putting it in a lined pit." I
said "Look it's not lined. Dam! I know! I've been living here a
couple years. I know what it is. I've been there!"...My problem is
with the DEP not regulating these guys. The DEP is not staffed.
Yeah, these gas well drillers, the DEP is in bed with them. They're
all tied together." After experiencing contamination of their water
well, the resident goes on to say "I was curious as to what was
going on with all of this drilling and what they were doing. I heard
they were directional drilling. I wanted to know what direction they
were going...I went up to the DEP office and researched and pulled
all of the permits and everything that they had and it said they
were only permitted 6500 feet, but as far as what direction they
went, after all my talkings with the DEP, the DEP has no clue what
way they are going."
Another Hickory resident: "I chased him [a DEP
agent] down in my pickup one day and he pulled over and I was
telling him I was very disturbed about these holes they drilled and
lined them with plastic and then buried the plastic. I just couldn't
believe they could get away with something like that. And he pretty
much [said] "Yeah, well, you know. It won't hurt nothing." Well,
that's a bunch of crap, you know. And the brine water when I had
that little spill that's when I ran into him and I made him come to
the well site and I pointed out across the hill to my neighbors
where it was coming down. It was just oozing down over the bank and
he wasn't all that fired up about it. You know, I thought these guys
are hot on everything like that, but it wasn't so."
Bradford County resident: "I called the DEP
after our water went bad and I talked to Becky Renner, I feel she
did absolutely nothing for us at all... Both the DEP and the company
Chief did water tests. Both entities said that there was obviously a
problem with the water, but they didn't know what it was... Becky
Renner from the DEP took a cup of water from our faucet, the faucet
was bucking and jerking. She took the glass of water out onto the
porch and held a lighter to it. There was an explosive type action
that blew the lighter out, and the surface of the water in the cup
burned. Tests were done for methane on the air in the headspace of
our water well; and they were LEL tests (Lower Explosive Limit)
tests. The tests came back at 100% methane, that is as high as the
tests go for methane."
Crystal Stroud, of a DEP investigation into
her water contamination: "They had released my water results to the
press before I even had received them in an e-mail. They tested for
10 substances in my water while all my other results have at least
20 different substances. They released a statement saying they did
isotopic testing yet didn’t release the results of that testing and
still cannot produce results as proof. It’s a joke!"
Ron Gulla,
Hickory "(SR) [Sherman Richardson of the DEP] tested the water but
wouldn't test the mud at the bottom of the pond. I told (SR) that
whatever had contaminated the pond would be at the bottom. (SR) said
that he was not authorized to get a mud sample. (SR) seemed very
nervous and said that the letter was written under the direction of
his boss. After I told (SR) that I wanted a meeting with his boss,
he said he would organize such a meeting. This meeting never
occurred. This was the last time that I spoke to (SR). There was a
fish kill in the pond from all the silt and contamination. Up to
this point I had gone to Mt. Pleasant Twp. Supervisors and the local
agriculture extension office to complain. Everywhere I went I was
told the same thing: “call the DEP." Whenever I questioned these
issues and practices, Range Resources and DEP personnel were
extremely rude and unaccommodating. Range Resources operates on
intimidation. They have intimidated everyone and have taken
advantage of this rural area. I thought the DEP was going to help.
(SR) said he would look into these problems, yet the results and his
efforts were appalling.”
"[The new DEP Agent that replaced the previous
one] said that there were so many problems created by Range
Resources contractors that he had a difficult time keeping up with
all the phone calls... All the problems on my property are still
existing to this day. The pond vegetation has never grown back since
it was contaminated. Garbage was buried on location #6, by a
contractor. Why should my farm be treated like a landfill? Also,
Range Resources pumped contaminated water from my pond to a
neighboring pond for fracing purposes. The DEP told a concerned
neighbor that the water was being pumped into a plastic lined pond.
This was not true. So many issues with no resolution. What was going
on? My property, pond and life have been destroyed. It's outrageous
that someone can come onto your property and do all this
destruction. There have been so many instances of insult to the
property and me, personally... Overall, I could never understand what
was going on. Nothing was getting resolved and I was puzzled and
frustrated. After learning of the exemptions the puzzle all came
together and many questions were answered. Questions of how I
couldn't get help, relief, support from attorneys, DEP, Range
Resources personnel and even judges. Learned that Mark Keil, of the
DEP, went to work directly for Range Resources. How do you as a
landowner stand a chance legally when the industry wrote the Oil and
Gas Act? And yet, the burden of proof is upon the individual
landowner against the powerful company."
Looking for Context: Is the DEP another Red
Herring?
The nation's first federal regulatory agency
was established in 1887. This agency, the Interstate Commerce
Commission, had the original purpose of "regulating" railroads as
well as things like interstate bus lines and telephone companies.
While many at the time felt the railroads corporations were abusing
their economic power, it was top officials of railroad companies as
well as folks like Andrew Carnegie and J. P. Morgan that pushed the
ICC into existence [4]. The railroad companies had certainly fought
any popular democratic control over their operations, and had vied
for more power and control every chance they could get. So why would
they go through so much effort to form an agency meant to regulate
their own operations on behalf of "the people"?
William Miller, the US Attorney General at the
time said of the ICC, "The Commission...is, or can be made, of great
use to the railroads. It satisfies the popular clamor for a
government supervision of the railroads, at the same time that
supervision is almost entirely nominal. Further, the older such a
commission gets to be, the more inclined it will be found to take
the business and railroad view of things. It thus becomes a sort of
barrier between the railroad corporations and the people and a sort
of protection against hasty and crude legislation hostile to
railroad interests… the part of wisdom is not to destroy the
Commission, but to utilize it."
Such domination of a regulatory agency by
corporate interests is usually called "regulatory capture," and is
pointed out as a "failure of government." But this is rather missing
the point. There is no "failure," if the regulatory agencies were
set up with such "capture" in mind. The intended purpose of the
"alphabet soup" of regulatory agencies that showed up on the scene
after the ICC were to facilitate the industries being regulated,
while providing the illusion of protection and control the people
seemed to desire. Or as Charles F. Adams of the ICC put it "What is
desired is something having a good sound, but quite harmless, which
will impress the popular mind with the idea that a great deal is
being done, when, in reality, very little is intended to be done."
Of course, Charles F. Adams went on from his ICC position to become
a president of the Union Pacific Railroad Company, not an unfamiliar
change to anyone who pays attention to the revolving door of our
modern regulatory and environmental agencies.
But there is something most important in the
midst of all of this talk about regulatory agencies that we need to
understand. Marvin Bernstein in 1955 gave the following criticism,
"Because [the regulatory agency idea] is based upon a mistaken
concept of the political process which undermines the political
theory of democracy, [it] has significant antidemocratic
implications."
And this is where we find the crux of the
issue we now face today. For example, let's say a community decides,
that it doesn't want 900 tons of hazardous waste from the gas
industry dumped there every day. Why wouldn't they want such a
lovely addition to their community. Well, they might list any number
of reasons, e.g. toxins that inevitably tend to find their way into
their air and water, lower quality of life, disruptive truck
traffic, high cancer rates, mental degradation, headaches, property
values, feelings of being violated for profit, their children’s
future, aesthetic values of the environment, violation of the
communities' vision of a positive future.
Now what response to all of this might the
community have? If the people in this community dare being "uppity"
enough to suggest that the people who live there, the ones who are
to be effected by the presence of the waste dumping site, should
actually have a say in what goes on there, they will quickly learn
that the waste dumping site is "heavily regulated” so they don't
need to worry. Well, that sounds very impressive. So where to go to
next?
Well, a local regulatory hearing or meeting of
course. Perhaps even a representative of a regulatory agency like
the DEP might show up as well as a few folks from the industry.
You know, the experts.
They will mostly be very polite, show some
technical expertise, and express great concern for your health and
safety, maybe evade a question or two. They'll talk about how the
industrial activity is good for everybody, and if that fails,
they'll note that at least it's safe, and if that fails, someone
might actually inform the community that they don't have any say in
the matter, i.e. just step out of the way and let the experts
"handle it." Every concern the community has is denied or channeled
into minutia about lighting, or sound, or setbacks from property
lines, little prescribed bits of activity that they are “aloud” to
talk about and to act on. As the months go by, one hearing after the
next, the community starts get the creeping suspicion that they are
the ones being “heavily regulated,” not the industry.
Back to the experts.
It's important to understand that the DEP
issues permits that permit the harm to the community in the first
place, and if all the i's are dotted and all the t's are crossed
(well, not all the i's and t's, no reason to be pedantic), then the
permits are issued by "right." Of course they might define how much
harm they are aloud to do, and fine them if they go beyond this
amount of harm. But such defined amounts of harm are usual the
domain of corporate attorneys, not us "simple" folk. And in all this
swirling activity of “experts” and attorneys, the community is
preempted by state and corporate law and left paralyzed; robbed of
the ability to say "yes" to the future they truly want.
And if that wasn't enough, this corporation
that seems like such an ominous threat is created in their name and
by their power. Corporations are chartered by the state in the name
of the sovereign people, the source of all governing power. Yet when
a conflict arises between their will and the profit motives of the
corporation, the corporation is held above the people - and the
state is complicit in all of this. But in case the reality of any of
this dawns on any of them, they will be quickly funneled by the DEP,
by their supervisors, by the industry, into the roles corporations
have written for them. Perhaps they are told that this is the law,
just "the way it is," and told to swallow the bitter pill and accept
their fate. And some do, with an inner resolve to "do the best they
can" within these confines. And whatever impact the realization
might have had is lost.
As Jane Anne Morris put it "Regulatory
agencies are the corporations' response to people's calls for
democracy and self-governance. Corporate officials who once hired
Pinkerton's goons to do their dirty work and protect them from an
activist public can now rest assured that much of that burden has
been assumed by regulatory agencies. They work as the barriers they
were designed to be."
And here are the hard facts to face. The
people, and yes there are lots of them, who are frustrated with the
DEP and desiring to make it do "what it's supposed to" must confront
the reality that when the DEP acts irresponsibly and evasively to
the concerns of people, it is doing what it is supposed to do. This
does not have to be any inherent fault of any individual DEP agent.
They might all be lovely people with great expertise, though
certainly clear negligence even according to DEP procedures has been
demonstrated here. Even if all of the DEP agents acted with perfect
fidelity, the DEP would still remain “the barriers they were
designed to be.” When Corbett says he “will direct the Department of
Environmental Protection to serve as a partner with Pennsylvania
businesses" we don't need to search very far to grasp the implied
meaning. The truly important thing to grasp is that, in the words
Richard Grossman, "These organizations [regulatory and
administrative agencies] are not the sources of our problems. They
are red herrings. They are barriers. They do not warrant the time
and attend of radicals – except to understand their roles as agents
of and apologists for corporations, and to figure out how to get
beyond them. The sources of our problems are the corporations
themselves, their stolen rights and authorities under law, and their
power over governments."
Jane Anne Morris agrees, "And what great
targets these regulatory agencies make. Corporate public relations
teams blame them for economic ills, and the public blames them for
"not doing their jobs." Attention is deflected away from
corporations as the source of problems, and toward efforts to
"reform" regulatory agencies. The idea that the concept of the
regulatory agency is inherently flawed doesn't even make it onto the
table."
Grossman continues, "Simple as this seems, few
citizens organizations act upon this self-evident reality."
Go to a zoning hearing some time, you'll see
what he means. You'll hear lots of talk of enforcing "tough but
fair" regulations, written or negotiated by the industry themselves.
And you'll probably hear lots of talk about what ways the community
is going to get screwed, where it's going to get screwed, what times
of day it’s going to get screwed, and what kind of monitoring will
be done in order to produce fancy charts and graphs so the community
can see exactly where it lies on the "we're screwed" curve. But you
won't see much talk about what the people truly want and need, and
how to achieve these things in a democratic way. As Grossman puts
it, "We can't do this without talking about where power and
authority lie. We'll have to stop pretending that corporations do
not govern, stop conceding unwarranted legitimacy to corporations
and their mythologists, and stop limiting our goals and aspirations.
We must put everything on the table."[5, 6]
We have all been given a great opportunity by
this important case, brought by Beth Voyles, to come face to face
with a regulatory agency, and to see its actions with clarity. The
aim of this case is very real and important. It is horrible what
happened, and what is still happening all over Pennsylvania. I can
only hope that justice is done, not just by the Court forcing the
DEP to investigate, but by the people asserting their will to
challenge the corporate perversions of law instead of being diverted
into the "stacked deck" of regulatory law, where "We the People"
have so few rights. Morris tells us that regulatory agencies
"replaced, and seemingly erased from memory, a myriad of imperfect
but promising democratic measures that defined the corporation at
the outset as a subordinate entity chartered to serve the public
good. Many of these measures were straightforward, effective, and
even clever, and did not require arcane administrative structures
for their implementation and enforcement."
Perhaps these measures would mean that we
would have to take a lot more responsibility for what happens in our
communities. We would have interact a bit more and be creative. And
perhaps we wouldn't get to play the victims quite as much. Maybe we
would even have some growing pains. And perhaps we would have to put
something at risk. Perhaps. But one can also wonder if we can afford
waiting anymore for a well-trodden, well-lit path to "victory" where
we will be coddled and protected each step of the way. If the
history of western civilization and the history of the struggles of
the abolitionists, suffragists, and populists are to be any guide -
such a safe path doesn't exist. For those who feel we deserve better
than botched investigations into harms that should never occurred, I
invite them to learn about the communities in Pennsylvania and
elsewhere who have decided to take another path[7].
[1] Interviews with Pennsylvanians on impacts
from gas drilling
http://www.youtube.com/user/checNGdoc
[2] People that supported the formation of the
first federal regulatory agency: "Prominent among them were the
Director and General Counsel for several of Vanderbilt's railroad
corporations, including the New York Central Railroad Company,
Chauncey M. Depew; the President of the Union Pacific Railroad
Company and former chairman of the Massachusetts Railroad
Commission, Charles F. Adams; the President of the Minnesota and
Northwestern Railroad Company, and President and Chairman of the
Board of the Chicago and Great Western Railway Company, A. B.
Stickney; the Vice President, General Manager, Director, and
President of the Chicago, Burlington & Quincy Railroad Company and
later, President of the Burlington & Missouri River Railroad
Company, Charles E. Perkins; the Vice President, General Manager,
Director, and President of the Pennsylvania Railroad Company,
Alexander J. Cassatt; Andrew Carnegie (Man of Steel); the prominent
J. P. Morgan, banker, associated with the rise of the International
Harvester Company and U.S. Steel Corporation; and 1912 chairman of
the national executive committee of the Progressive Party, George W.
Perkins."
From Sheep in Wolf's Clothing by Jane Anne Morris
http://www.poclad.org/?pg=By_What_Authority&show=a000102.txt
[3] Defying Corporations, Defining Democracy:
A Book of History & Strategy Edited by Dean Ritz, Program on
Corporations, Law & Democracy
[4] POCLAD
- Program on Corporations, Law and
Democracy
http://www.poclad.org/
[5] Thomas Linzey on a new type of activism in
Pennsylvania, at Bioneers Conference
Part 1 / 4
http://www.youtube.com/watch?v=Rgn7mlsb5gE
Part 2 / 4
http://www.youtube.com/watch?v=9A4OhXR9vAc&feature=related
Part 3 / 4
http://www.youtube.com/watch?v=tfVAHFTY9DI&feature=related
Part 4 / 4
http://www.youtube.com/watch?v=6abV18rVEaE&feature=related
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