Internal email correspondence from Red Oak Water Transfer revealed executives were not only aware of a spill of at least 21,000 gallons of flowback water from Marcellus Shale drilling operations in Washington County, but also detailed the subsequent “cover up,” according to a motion filed in Washington County Common Pleas Court Friday.
The motion also indicates that the email regarding the spill was sent to executives four days after the incident. However, the Pennsylvania Clean Streams Act requires that companies notify the state Department of Environmental Protection within two hours of those incidents, the attorneys for the plaintiff’s wrote in the motion.
There is no evidence that the spill was ever reported to the DEP, and one of the executives who received an email about the incident later testified under oath that he doubted it ever happened, adding that he believed that it could have been fabricated by an employee.
…I did an investigation myself and I couldn’t find a single sign or evidence indicating that any type of water was released of that magnitude,” the executive, Matt Smiley, wrote.
But internal personnel files show the manager responsible for the spill was in fact suspended without pay because of his role in what was described in the file as a “cover up.”
Attorneys for Stacey Haney and a handful of other residents who live near a frack pond in Amwell Township operated by Range Resources, for whom Red Oak, a Texas-based company, is a subcontractor, filed the motion to compel discovery responses from Red Oak. The motion, filed with the Washington County Prothonotary Office, is part of a suit against Range and more than a dozen subcontractors filed in 2012. The suit alleges that toxic exposure from the impoundment caused those residents to suffer various illnesses. It also alleges that those companies were responsible for contamination of those residents’ drinking water.
In the motion filed Friday, attorneys for the plaintiffs ask the court to compel Red Oak, now doing business as Rockwater Energy Solutions, to disclose photos of the spill referenced in internal email correspondence between the company’s Director of Safety and Compliance Rich Hoffman and other executives.
The emails and other documents were disclosed by Red Oak as part of the discovery process related to the suit. One of the emails Hoffman sent Dec. 10, 2010 with the subject line reading “Range Situation” described the circumstances of the spill, which reportedly happened Dec. 6, 2010.
In the email, he wrote that Smiley, general manager of Rockwater, had been alerted to the spill, and pictures taken on an employee’s cell phone of the incident had been forwarded to him for review.
The spill occurred at a stream crossing due to a pipeline failure, most likely caused by an ice related pressure buildup. Here is where things get weird. Everyone we spoke with, either in person or via telephone, was very reluctant to speak…up.
At a minimum, 500 barrels of flowback water went into the stream…Based on the MarkWest permit we found at the stream crossing, the stream is an ‘environmentally-sensitive waterway’ because it empties into a trout-stocking stream.
In the message, Hoffman writes that he was able to get one employee to speak up about the incident. He then gives a list of what that employee had reported to him. The details given by that employee included:
Crew members noted lots of black water pouring out of a pipe and onto the ground, then into the stream.
The director of safety and compliance also wrote about what the employee said happened when he called his supervisor, Kelly Blackburn, to report the incident:
Kelly swore, then told him to shut off the pumps and flush the line with fresh water. Kelly also told (the employee) to keep it quiet.
Hoffman also wrote that the spill was never reported to upper management of Red Oak, or to Range. “If this incident is reported to Range, it could be the end of our business relationship,” he wrote.
In a subsequent email, Hoffman pondered why spills were even monitored and documented, and even references court action.
Why do we track spills at all? I feel once we record a spill, then we ‘own’ that event. In light of recent litigation … do we really want to have an electronic, permanent record of our acceptance of liability?
And he went on to imply that Range Resources, not Red Oak, should be liable.
We must also consider the fact that, from a regulatory standpoint, our client partners own the water. Any reporting to a regulatory agency must be done by the client. If the client chooses not to report a particular event, are we unnecessarily exposing ourselves (and them) to liability?
Court documents indicate that Red Oak officials refuse to disclose the photos because officials said they do not exist, which led to the filing of the motion to compel.
Documents also show that Smiley denied the existence of the photographs referenced in Hoffman’s email and stated that he had never seen them.
“Nobody has pictures of anything,” Smiley said, according to court documents.
Smiley also suggested in his deposition that the employee who reported the spill may have fabricated details in an effort to get the supervisor, Blackburn, terminated.
If the incident had occurred, Smiley said, disciplinary action against Blackburn would have persisted. And Blackburn, he said, was never terminated.
But in the motion, attorneys wrote that Red Oak’s personnel files show that Blackburn had in fact been suspended without pay. The reason for the suspension was listed on those files as being related to “flowback spill cover-up” according to court documents. Red Oak personnel files, attorneys stated in the motion, also referenced photos of the spill.
“Red Oak’s internal personnel records use the phrase ‘cover up’ to describe Kelly Blackburn’s actions in response to the flowback spill no less than three times,” attorneys write in the motion.
Court documents also indicate that Red Oak attached the phrases “serious violation” and “significant incident” to the spill.
Argument on the motion is expected to take place at 9:15 a.m. Dec. 12 at the Washington County Courthouse before President Judge Debbie O’Dell Seneca.
Here is the full motion: