Pennsylvania Judge Orders Records Opened in Fracking Case, Gas Industry Loses Fight to Keep Fracking Pollution Case Secret

Newspapers seek release of shale settlement by Don Hopey, March 23, 2013, Pittsburgh Post-Gazette
The Pittsburgh Post-Gazette and the Washington Observer-Reporter have returned to court to force the release of the confidential settlement ending a claim by a Mount Pleasant family that Marcellus Shale gas development damaged their farm and their health. In a motion filed Friday in Washington County Common Pleas Court, the newspapers asked President Judge Debbie O’Dell Seneca to order Stephanie and Chris Hallowich to file the missing document with the Washington County prothonotary. That document was not part of more than 900 pages of court records the judge ordered unsealed Wednesday, even though the agreement supposedly was “attached” to other filings in the case and is identified as “Exhibit B” in the released documents. “While it is unbeknownst to Intervenors why an exhibit averred to be attached to a court pleading filed with this Court is missing,” the newspapers’ said in the 12-page motion, “it is clear that the Agreement, Exhibit B, is a judicial record subject to public access.” Attorney Frederick Frank, who represents the Post-Gazette, said the motion asks the Hallowiches to produce the settlement agreement because their attorney, Peter Villari, prepared the settlement petition for their children, Nathan and Alyson, to which it was attached. Mr. Villari is on vacation and was unavailable for comment. The court records were sealed in August 2011 by Washington County Common Pleas Judge Paul Pozonsky, who has since resigned. [Emphasis added]

A Pennsylvania fracking settlement answers a few questions by Scott Tong, March 21, 2013, Marketplace
The Pittsburgh area is buzzing today about a high-profile environmental pollution case linked to fracking. A family and a drilling  company reached a settlement in private. But a few lawsuits later, the details of the case just became public. In the fracking wars, the secret settlement between driller Range Resources and the Hallowich family outside Pittsburgh is a defining battle. Now that the case is public, many are underwhelmed. The company paid the family $750,000, admitting no fault. The family argued a well or wastewater pit poisoned their water, but took the deal and moved out. Bob Donnan is a friend of the Hallowich family. “You do wat you have to do for your family, if you have to sign a gag order or you take a number that puts you into a different house, you do it.” Papers do indicate the Hallowich’s drinking water contained a chemical linked to cancer – acrilonitrile – 30 times the safe level. Acrilonitrile has been used in fracking.  “It is a carcinogen,” says environmental chemist Wilma Subra, “a known human cancer-causing agent that can cause things like lung cancer. The animal studies indicate that acrilonitrile causes brain and stomach cancer.” Still, defendant Range Resources says the documents show fracking is safe. And while the plaintiffs also slam regulators for being asleep, Pennsylvania’s environment secretary Michael Krancer says the rules are enforced. “It definitely works well” Krancer sys. “And if you are told that by folks, ask them to show you specifics, because if you come into my department, which I invite you to do, I will do that for you.” The drama isn’t over. Key settlement documents are missing from the file, stoking rumors of funny business. And resident Bob Donnan argues misdeeds continue. He says the suspicious wastewater pit by the Hallowiches was mysteriously emptied, evidence destroyed. “Along that pipeline, one of the valves was opened up. And the water was allowed to dump on the ground. That was on the Agape Bible camp.” Which leaves everywhere where they started. Critics suspicious. And industry declaring itself clean. [Emphasis added]

Range Resources Paid $750,000 in Fracking Accord by Sophia Pearson, March 21, 2013, Bloomberg News
Range Resources Corp. and other natural-gas drillers paid a Pennsylvania family $750,000 to settle claims the companies were contaminating their water, according to unsealed court records. MarkWest Energy Partners LP (MWE) and Williams Cos. (WMB)’s Williams Gas unit joined in the June 2011 agreement, which included the transfer of Chris and Stephanie Hallowich’s home in Hickory, Pennsylvania, and payment of $750,000, according to court records unsealed in Common Pleas Court in Washington County. The settlement terms were included among more than 900 pages of documents Common Pleas Court Judge Debbie O’Dell-Seneca ordered unsealed yesterday after rejecting the companies’ arguments that such a move threatened their right to privacy. In resolving disputes with homeowners from Texas to Pennsylvania, gas drillers have often demanded secrecy in exchange for buying their properties, delivering fresh water or paying out a settlement. … The Hallowichs filed notice to sue Range and other gas drillers in 2010, claiming the drilling operators and gas- processing facilities failed to ahere to Pennsylvania environmental law for air, water and soil, according to court documents. Drilling on land adjacent to their property polluted their well and caused them to suffer burning eyes, sore throats, severe headaches and other symptoms from toxic gas, according to the records. … Under the terms of the agreement, the Hallowichs received $544,820. Their two children got $10,000 apiece with the rest going to attorneys’ fees, according to court documents. The case is Hallowich v. Range Resources Corp. (RRC), 2010-3954, Court of Common Pleas of Washington County, Pennsylvania (Washington).

Gas drilling companies paid $750K settlement in Pa. by The Associated Press, March 21, 2013
Newly released court documents show that gas drilling company Range Resources and other defendants paid $750,000 to settle claims that the activity ruined a western Pennsylvania family’s property. But the settlement that Stephanie and Chris Hallowich of Hickory agreed to also notes that there was no medical evidence to support claims that the activity harmed their health. The dispute was settled in July 2011, but the companies asked that the records be sealed and a judge agreed. The Pittsburgh Post-Gazette and the Washington Observer-Reporter challenged that decision and on Wednesday another judge ruled in their favor.

Pennsylvania Judge Orders Records Opened in Fracking Case by Mark Drajem and Sophia Pearson, March 20, 2013, Bloomberg
A Pennsylvania judge, handing a victory to local media and health groups, ordered documents unsealed in a settlement between gas-drillers and homeowners who accused the companies of contaminating their water. Common Pleas Court Judge Debbie O’Dell-Seneca said in a ruling today that the natural-gas drillers failed to overcome the presumption that the records should be open unless the companies, including Fort Worth, Texas-based Range Resources Corp. (RRC), showed they’d suffer harm to trade secrets or reputation. “The defendants’ assertions of a right of privacy under the Constitution of the Commonwealth of Pennsylvania are meritless,” O’Dell-Seneca wrote. In disputes from Wyoming to Texas to Pennsylvania, gas drillers have often demanded homeowners keep quiet about their complaints in exchange for buying their properties, delivering fresh water or paying out a settlement. Without the information about those individual cases, health and environmental groups say they can’t assess the risks of fracking.

The disputed documents were not immediately unsealed and their contents are not public. Before the records were closed, the homeowners, Chris and Stephanie Hallowich, told National Geographic magazine that their water was polluted by the wells, pipelines, processing operations and truck traffic that came into the rural area where they had built their home. They also said they suffered burning eyes, sore throats and other symptoms when gas was released into the air. “They made very serious allegations about the health impacts of drilling near their home,” Matthew Gerhart, an attorney for Earthjustice, which urged the court to unseal the documents, said in an interview. “We are interested to know whether there is anything in the record that sheds light on those allegations.” He called the decision a victory for anyone who believes more information is needed on the health and environmental consequences of hydraulic fracturing or fracking. While it’s not clear what specific information the records’ contain, it will probably prove relevant in assessing the effects of the fracking boom across Pennsylvania and nationwide, he said. Range, which fought to keep the record sealed, said it now welcomes the disclosure. The file “should provide the public with even greater clarity that shale gas is being developed safely and responsibly,” Matt Pitzarella, a company spokesman, said in an e-mail. The Pittsburgh Post-Gazette and the Observer-Reporter, backed by health and environmental groups, sued to open the settlement records over the objections drillers including Range Resources, the company that pioneered fracking for natural gas in the Marcellus Shale of Pennsylvania. The Hallowich family also agreed to keep the records confidential. Unlike most settlements, the deal needed approval of a judge because their minor children were parties to the case. That put the settlement in court, where the newspapers and public interest groups could attack its confidentiality.

Hallowich and Range reached the settlement in 2011 after filing a notice that they intended to sue. The case is Hallowich v. Range Resources Corp., 2010-3954, Court of Common Pleas of Washington County, Pennsylvania (Washington). [Emphasis added]

Washington County judge orders Marcellus Shale development settlement records unsealed by Paula Reed Ward, March 20, 2013, Pittsburgh Post-Gazette
In a 32-page opinion, President Judge Debbie O’Dell-Seneca found that the presumption of openness in the court system must trump the interest of the companies to keep the record sealed. Stephanie and Chris Hallowich initiated a case against Range Resources, MarkWest Energy Partners and Williams Gas/Laurel Mountain Midstream Partners on May 27, 2010. No official complaint was ever filed and instead, the case was settled by the parties in July 2011. The defendants asked that the settlement conference and documents be sealed, a request former Washington County Common Pleas Judge Paul Pozonsky granted Aug. 23, 2011. The Pittsburgh Post-Gazette and the Washington Observer-Reporter challenged that decision. The state Superior Court remanded the matter back to the trial court.

Judge O’Dell-Seneca held argument on Jan. 18. In her opinion, she found that the newspapers did not seek to open the record in pursuit of self-interest. “They intervene to vindicate the public’s right of access to its courts and to information, upon which the entire foundation of a free press is predicated,” the judge wrote. She wrote that the defendants acknowledged the presumption of openness in the courts and failed to present any evidence at the January hearing showing that any harm would befall them if the settlement agreement became public. Further, Judge O’Dell-Seneca found that businesses do not have the same right to privacy as individuals. “Whether a right of privacy for businesses exists within the penumbral rights of Pennsylvania’s constitution is a matter of first impression,” the judge wrote. “It does not.”

The defendants claimed they had the right to privacy to protect the record from being unsealed. But Judge O’Dell-Seneca wrote that Article I of the state Constitution, which reads, “All men are born equally free and independent,” cannot apply to them. “There are no men or women defendants in the instant case; they are various business entities. … These are all legal fictions, existing not by natural birth by operations of state statutes. … Such business entities cannot have been ‘born equally free and independent,’ because they were not born at all.” The opinion calls it a clearly “emerging question in national jurisprudence” and joined with two courts that have already discredited it.

Gas Industry Loses Fight to Keep Fracking Pollution Case Secret by EarthJustice, March 20, 2013, Ecowatch
A judge ruled today in favor of journalists seeking access to information about a fracking pollution court case. Judge Debbie O’Dell-Seneca reversed an order by a Washington County court sealing the record in a case in which a Pennsylvania family sued several gas companies over property damage and health impacts related to air and water pollution from nearby natural gas operations. The Pittsburgh Post-Gazette and the Observer-Reporter had intervened in the case to unseal the records, while gas companies unsuccessfully fought to keep the records out of the public eye. Earthjustice, the non-profit environmental law firm, submitted an amicus brief supporting the newspapers on behalf of Philadelphia Physicians for Social Responsibility, Physicians Scientists & Engineers for Healthy Energy, Dr. Bernard D. Goldstein, Dr. Walter Tsou, Dr. Jerome A. Paulson, Dr. William Rom, Dr. Sandra Steingraber, Dr. Simona Perry, Dr. Robert Oswald, Dr. Michelle Bamberger, Kathryn Vennie and Earthworks. The doctors, scientists and advocates argued in favor of greater transparency about natural gas operations and their health effects. “This case pitted the natural gas industry’s insistence on secrecy against the historic commitment of the courts to public access to judicial proceedings,” said Earthjustice attorney Matthew Gerhart. “The court’s ruling reaffirms the importance of public access to the courts. This is a victory for everyone who believes that we need more information about the environmental and health consequences of fracking.” [Emphasis added]

Judge rules in newspapers’ favor in Hallowich-Range case by Barbara Miller, March 20, 2013, Observer Reporter
The natural gas companies “have failed to oppose (the) press’ motion to unseal the record under” case law,” O’Dell Seneca wrote. Corporations, companies and partnership have no spiritual nature, feelings, intellect, beliefs, thoughts, emotions or sensations because they do not exist in the manner that humankind exists … They cannot be ‘let alone’ by government because businesses are but grapes, ripe upon the vine of the law, that the people of this Commonwealth raise, tend and prune at their pleasure and need. “Therefore, this court must grant those motions and reverse (Pozonsky’s) Aug. 23, 2011, order, unless a higher authority forestalls the common law’s application.”

The decision became the responsibility of O’Dell Seneca after the state Superior Court said Pozonsky erred in ordering that the Hallowich case “be sealed indefinitely in its entirety” without first holding a hearing. The appellate court sent the case back to Washington County court in December, nearly six months after Pozonsky resigned from the bench amid reports of a state grand jury investigation. “It was a scholarly opinion that weighed the constitutional issues and came down on the side of the public’s right to know,” Fitch said of O’Dell Seneca’s 32-page opinion and order. “After all, this is a taxpayer-funded court that exists to serve the public. Unless there is a serious privacy issue, the presumption of openness applies and the record should be open to both the public and the press,” he continued. O’Dell Seneca discussed the press’ and the public’s right of access: “The press’ investigative role is itself a constitutional and common law bulwark, safeguarding the courts from lapsing into the clandestine abuse found in PA Childcare LLC, known as the Luzerne County Cash for Kids scandal,” Judge O’Dell Seneca wrote.

“It is not ‘mere curiosity’ as (the natural gas firms) contend.”

Matt Pitzarella, spokesman for Range Resources, did not respond Wednesday to an emailed request for comment. [Emphasis added]

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