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Story from the Marcellus Shale
PA. D.E.P.



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."



The letter sent to Rep. White alerting him of these issues can be found at:

The deposition of TaruUpadhyay, technical director of PA DEP Laboratory can be found at:


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.

(Newspaper story link was removed)


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.



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)


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.

Yeager Centralized Impoundment Dam

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?


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 near Hickory Pa.
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."

Range Resources Appalachia centralized impoundment dam
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 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.”

Gulla wells were some of the first Marcellus Shale wells drilled

"[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, 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

[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

[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

[5] Thomas Linzey on a new type of activism in Pennsylvania, at Bioneers Conference
Part 1 / 4

Part 2 / 4

Part 3 / 4

Part 4 / 4


Impacts of Gas Drilling on Human & Animal Health (PDF - 513KB)
Pam Judy's story
Terry Greenwood's story
New York Times story

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