A natural gas company accused of allegedly polluting a stream in Penn Township with fracking water in November 2010 had a preliminary hearing Wednesday before Lycoming County District Judge James G. Carn, but the judge opted to take some time to review the evidence.
XTO Energy Inc., a subsidiary of Exxon Mobil Corp., is challenging charges filed by state Attorney General Kathleen Kane, regarding the spill of produced water from a temporary storage tank used during a water recycling operation.
The case, prosecuted by state Chief Deputy Attorney General Glenn A. Parno and Senior Executive Deputy Attorney General Linda Dale Hoffa, charges the company with unlawful conduct and violating rules of regulations to protect the state's water supply during operations of the Marquardt well pad site on Nov. 16, 2010.
Carn said he needed to review the evidence presented before he makes a decision whether sufficient evidence exists to hold the case for trial.
One of Parno's key witnesses took the stand for two hours. Jeremy Daniel, a former state Department of Environmental Protection inspector, testified he first went to the site in October and found some violations that he followed up on Nov. 16, 2010.
Daniel said he eventually noticed discharge coming from the bottom of a valve on a storage tank, took samples of the spill and noticed storage tanks with plastic plugs missing. Beneath the tank was sediment and discharge, and a photograph was shown at the hearing indicating dead vegetation on a slope below one of the tanks.
"It appeared to me the water had discharged," Daniel said, adding he followed the track of the spill to a farmer's field. He also did testing of the water in a nearby unnamed tributary leading to a larger stream called Sugar Run.
How much water was discharged is unclear, but the U.S. Environmental Protection Agency said it was between 6,300 and 57,373 gallons.
In speaking with an XTO official on the site, Daniel said the representative indicated to him the spill might have been the result of vandalism.
Daniel said several neighbors contacted the department with concerns about their well water being impacted.
Company attorney Thomas Kelly said any testimony that water taken from the industrial pad had any impact on drinking water was misleading.
Parno then argued Kelly was trying to misdirect the purpose of the hearing. Parno asked Daniel if he observed any measures taken by the company to prevent wastewater from polluting state waterways between Nov. 16 and Nov. 19 and he couldn't say the company did take any steps toward prevention.
In his cross-examination, Kelly acknowledged Daniel traced the spill to see its extent and collected appropriate samples, then had him read a department letter indicating the water samples did not exceed the safe drinking standards.
Kelly then asked Daniel a direct question: "Who caused the spill."
After Parno objected, Daniel was permitted to answer the question and said he did not know.
Parno followed up the questioning by having Daniel testify the permittee was the responsible party.
Other witnesses included a former company maintenance worker, a driver who brought the loads of wastewater to the site and a former supervisor of a subcontractor, Bosque Systems. The company processed water used in the fracking process for XTO.
The former supervisor, Mike Temple, testified that Bosque made sure the storage tanks under its authority would prevent spills from contaminating the ground off the pad site with a secondary containment, a plastic protective liner to prevent contamination from a spill occurring.
Adding further evidence from the state's perspective that XTO is responsible, Temple said that when he got the call Nov. 16 about the spill, he asked an XTO worker the cause of the leak, wondering if it fell under Bosque's responsibility.
"He said, 'Nope, it's our tank.' "
XTO attorneys say criminal charges are unwarranted and legally baseless because neither the company nor any of its employees intentionally, recklessly or negligently discharged produced water on the site.
In fact, they said XTO acted quickly and cooperatively with state and federal authorities to clean up the produced water. No lasting environmental impact was caused, the attorneys claim, and the site has been fully remediated in accordance with guidance from the state Department of Environmental Protection.