Attorney General Josh Shapiro addresses the press at Marsh Creek Lake while a protester floats nearby (Photo: Laura Obenski)

Attorney General Josh Shapiro held a press conference on October 5 at Marsh Creek Lake in which he spoke about the 48 charges arising from the Grand Jury investigation of the construction of Mariner East. Perhaps you watched the video, or read press accounts about it. If so, you might have felt (as I initially did) that it was all old news. Haven’t we heard over and over about frac-outs and notices of violation?

But I changed my mind when I read the actual document of the Grand Jury’s findings (called a “presentment”). You can read it here. There is plenty of news in the presentment, and it shows how bad Sunoco’s behavior actually was—far worse than we knew.

For me, the two biggest revelations are (1) the scope of the environmental damage, both to private wells and to bodies of water, (2) proof that Sunoco knew of, and willfully disregarded, environmental laws (a felony). I address each of these in turn.

Drilling fluid, IRs, and LOCs. First, a bit of terminology. During normal HDD operations, drilling fluid (a.k.a. drilling mud) is sent down the drill pipe under pressure, causing the drill bit to turn and lubricating it. The fluid, together with bits of rock from drilling, returns up the bore hole to the “drill pit”, where it is filtered and used again. The amount of fluid flowing down the pipe and returning should be roughly equal. If significant amounts are lost, that means there has been an “inadvertent return” (IR), meaning that the fluid has found a path to the surface, creating a “frack-out”; or a “loss of circulation” (LOC), meaning that the fluid has found a place to escape underground.

Damage to wells. As the DEP’s Steven Brokenshire testified, “… often, the fluid that gets lost below the surface can find its way into private water wells. … the fluid will take the path of least resistance. If that path is a fracture outside of the borehole, the fluid will follow it.” Brokenshire explained that a water well is sometimes that least resistant pathway. That happened many times during Mariner East drilling, resulting in fouling of at least 183 private wells—a number which doesn’t include wells whose owners were silenced by Sunoco payments and non-disclosure agreements. The testimony of eight well owners from across the state is summarized beginning on page 55 of the presentment.

The presentment reports: “Some of the additives used by drillers during this pipeline project … were not on DEP’s approved list of additives. In addition, some of these uncertified additives were considered ‘proprietary,’ meaning that drillers are not required to divulge the nature of the chemicals being injected into the ground, and potentially into wells, lands, and bodies of water.” So Pennsylvania residents may be drinking, bathing, swimming, and fishing in water containing unapproved and undisclosed drilling-fluid additives.

Damage to bodies of water. The presentment is 64 pages long, and the bulk of it (pages 9-50) is a detailed discussion of environmental damage at 21 different drill sites. The AG’s office hired ARM Group to go through the detailed day-by-day drill logs that drillers are required to keep. The logs provide a record of IRs (inadvertent returns) and LOCs (losses of circulation) and were the source of the data which Sunoco should have been reporting to the DEP but frequently did not.  

At the 21 sites that ARM group examined, there were 301 IRs and 397 LOCs. And those 21 sites constituted just 16% of the HDD sites for Mariner East. The IRs and LOCs were reported to Sunoco by the drilling subcontractors in daily and weekly status calls, and were posted to a Sunoco website that was set up for this purpose. Sunoco was required by law to report to the DEP every IR and LOC, but most of them went unreported. (This lack of mandatory reporting is the “willful and consistent” behavior that has led to the felony charges that Shapiro announced.)

The table below shows the scope of the damage to lakes, rivers, streams, and wetlands in the 21 sites that were examined. There are some items in the presentment that I have never seen published before. For example, the DEP estimates that “21,000 to 28,000 gallons” of drilling fluid ended up in Marsh Creek Lake. The most commonly published number has been 8,000 gallons, and Sunoco reported only 400 gallons. Similarly, I have not seen the figure for Raystown Lake—“close to 3 million gallons”—anywhere else.

In the following two tables, I have compiled the basic data concerning the 21 sites from the presentment. The first table shows the locations of the 21 sites whose drilling records were examined, how many IRs and LOCs occurred, and how many were reported to the DEP as required.

The second table lists the same 21 sites, the amount of drilling fluid lost to the environment (to the extent known), and notes about where the fluid ended up.

The presentment document itself contains far more detail than I can convey in these tables.  

LocationSettingCountyIRs and Losses of cirulation in drill logsReported to DEP?
Raystown LakeLarge recreational lakeHuntingdon8 LOCs (Laney )
31 LOCS, 1 IR (Michels)
Only 2 reported
Loyalhanna LakeLarge recreational lakeWestmoreland24 LOCs, 23 IRsMost were not reported
Marsh Creek LakeLarge recreational lakeChester18 LOCs, 5 IRsMany were not reported.
Lisa DriveSuburban residential subdivisionChester12 LOCs, 3 IRsMost were not reported
Glen RiddleApartment complexesDelaware34 LOCs, 34 IRsMost were not reported
Piney CreekWetland, road, and creekBlair31 LOCs, 24 IRsAlmost all were not reported
I-81Interstate highwayCumberland23 LOCs, 22 IRsMany were not reported.
Blacklog CreekWetlands, road, and creekHuntingdon13 LOCs, 4 IRsMany were not reported.
Joanna RoadRoadBerks1 LOC, 6 IRs[not stated]
Old William Penn HighwayHighway and creekWestmoreland24 LOCs, 6 IRsMost were not reported
Norfolk Southern RailroadRailroad and part of town of JeannetteWestmoreland15 LOCs, 3 IRsMost were not reported
Everett RailroadRoad, railroad, and riverBlair9 LOCs, 7 IRsMany were not reported.
Linden RoadRoadWashington19 LOCs, 17 IRsMost were not reported
Linden Creek RoadRoad and creekWashington1 LOC,  9 IrsMost were not reported
Buff-Pitt HighwayHighway and wetlandIndiana5 LOCs,  1 IRMost were not reported
North Zinns Mill RoadTwo roads and creekLebanon38 LOCs,  16 IRsMost were not reported
Goldfinch LaneRoad and wetlandsCambria12 LOCs,  9 IRsMany were not reported.
William Penn Ave.RoadCambria0 LOCs,  8 IRs[not stated]
Spinner RoadRoad and riverCambria64 LOCs,  13 IRsMost were not reported
Wheeling & Lake Erie RailroadTwo roads and railroadWashington20 LOCs,  80 IRsMost were not reported
I-76Interstate highwayWestmoreland3 LOCs,  1 IRMost were not reported
LocationDrilling fluid lostNotes
Raystown Lake780,000 gallons (Laney)
“Close to 3,000,000 gallons” (Michels)
Divers found bentonite drilling fluid on the lake bottom. It covered an estimated 3.65 acres, and was 2 feet thick in some locations.
Loyalhanna LakeUnknown; more than 3,650 gallonsMultiple IRs released drilling fluid directly into the lake.
Marsh Creek Lake21,000-28,000 gallons into the lake; over 100,000 lost gallons into the ground in LOCs.The DEP’s estimate that 21,000 to 28,000 gallons of fluid escaped into the lake has not previously been reported. (Sunoco reported 400 gallons.)
Lisa DriveUnkownSinkholes at 478 Lisa Drive and 491 Lisa Drive.
Glen RiddleSunoco reported 11,000 gallonsMany IRs into wetlands and apartment grounds at Tunbridge and Glen Riddle apartments.
Piney CreekUnknown; 6,000 gallons in first two weeksDrilling fluid was repeatedly lost into Piney Creek and also surfaced in nearby springs. Route changed for second pipe.
I-81UnknownDrilling fluid escaped into a stream and a wetland
Blacklog CreekUnknown; more than 8,000 gallonsFluid escaped into a wetland. One pilot hole was abandoned and drilling was done on a deeper profile.
Joanna RoadMore than 40,000 gallonsSeveral fluid releases into nearby streams.
Old William Penn Highway461,745 gallons (est.)5,000 to 10,000 gallons of fluid escaped into Turtle Creek. Three sinkholes occurred along the drill path, including one 20 feet long.
Norfolk Southern RailroadMore than 92,000 gallons12,000 gallons surfaced in the town of Jeannette; some went into storm drains.
Everett RailroadUnknown. “Thousands of gallons”Multiple IRs into nearby wetlands. 
Linden RoadAt least 4,000-7,000 gallons released into creek.Multiple releases into nearby creek.
Linden Creek RoadMore than 3,000 gallons 
Buff-Pitt HighwayUnknownDrilling fluid released into stream
North Zinns Mill RoadMore than 100,000 gallonsMultiple releases into Snitz Creek. Creek was diverted without authorization. “Because of the egregious nature of Sunoco’s unilateral act, … the company was also the subject of a rarely-employed enforcement proceeding under the Clean Streams Law.”
Goldfinch LaneMore than 3,500 gallonsWetland, a spring, and a stream contaminated with drilling fluid. IR on a homeowner’s lawn.
William Penn Ave.At least 3,800 gallonsSeveral releases into a wetland, and one into a stream
Spinner Road“Thousands of gallons”Many releases into a stream.
Wheeling & Lake Erie RailroadUnknownDrilling fluid escaped into a stream. A sinkhole occurred along the drillpath.
I-76More than 20,000 gallonsReleases into two different streams.

Sunoco knew. But how far up the chain did it go? Only one Sunoco/Energy Transfer Employee is mentioned by name in the presentment: Christopher Embry, who is identified as the “Environmental Project Manager for the Mariner East 2 Pipeline Project”. Embry tried to justify the hundreds of unreported IRs and LOCs by saying they only had to be reported if they were “significant to the drill”. There is no such qualifier in the regulations. Embry also testified that, once an IR or LOC had been reported, subsequent IRs or LOCs at the same site did not need to be reported. That, too, was a rule that Sunoco invented. There is no such exception in the regulations. Sunoco was well aware of this: the DEP issued “notices of violation” in cases where losses of circulation had not been reported, and even called a meeting with Sunoco to discuss this.

Willful failure to report these violations constitutes a felony, and is the most serious of the crimes alleged by the Grand Jury so far. Did Sunoco’s awareness of this stop with Embry, or was someone higher up in the Energy Transfer organization telling him what to do? AG Shapiro was cagey when asked during the press conference whether individuals who knew what was going on would be charged. He said that the investigation is ongoing and that individuals could be charged. So far, only the company has been charged.

Likewise, Shapiro would not talk about the DEP’s failures to regulate the project (although it is abundantly clear that the failures were very numerous). He said only that the DEP was sometimes kept in the dark by Sunoco.

The PUC (the other agency with jurisdiction over Mariner East) was not mentioned in the presentment nor in Shapiro’s remarks at the press conference.

What effect will this have? The charges in the Grand Jury presentment, if proven in court, could lead to fines for Sunoco. Fines have had little effect in the past, and we can’t expect that to change in this case. At the press conference, Shapiro asked for the legislature to enact laws with more teeth, but even if that were to happen, it would not affect this case. The main effect will probably be the really bad publicity for Sunoco and Energy Transfer. It may also cause an increase in lawsuits against Sunoco, including class action cases, which will now presumably be easier to prove.

The Grand Jury presentment gives the DEP the perfect excuse to revoke the construction permits for the remaining incomplete sections. Will it find the backbone to do that? So far, the DEP has shown no signs of action. Could the Grand Jury findings cause Governor Wolf to rethink the free pass he has given the company, and act to revoke its construction permits? Unlikely, but you never know.

I hope the documentation of Sunoco’s indifference to laws and regulations will also encourage the Chester County Commissioners to file an emergency petition with the PUC. It is clear that Sunoco disregards regulations when it suits them; and just as it ignored damage to the environment as documented in the presentment, it is ignoring the risk to residents in its construction procedures. That’s a strong argument in favor of a petition.

To have a real and lasting effect on Sunoco and Energy Transfer, however, I think someone employed by Energy Transfer needs to go to jail. That could happen only if AG Shapiro aggressively pursues the leads generated by this initial phase of the Grand Jury’s work.

Postscript: this presentment is good writing. In over four years of reading legal and regulatory documents about Mariner East, I have never before encountered a document that I considered particularly well written. This presentment is the exception. It is clear, logical, and accessible to anyone who takes the time to read it. Kudos to the author(s).