This post is part of a series analyzing the ECA presentation at the Carbon County Commission this week.

As I see it, the interaction between a company that is planning major industrial operations and the community in which they plan to operate comes down to mutual respect, trust, and legal protections. That is the lens I am using to look at the interaction.

The series:

• Thursday: ECA commitment to the Beartooth Front community
• Today: ECA’s poor compliance record in other states, and the company’s response to the issue at the meeting
• Next week: Regulation (how much, what governments and organizations are responsible), the reason for the Silvertip Zone, and the role of the County Commissioners

If you haven’t seen it, here’s the video of ECA’s appearance before the County Commission on Monday, September 8.

On the ECA safety record in other states:
Regular readers know that we have made a big deal out of ECA’s poor compliance record in other states on the blog, and ECA’s response in the meeting underscores why that is important.

To refresh your memory, ECA has a publicly documented record of serious violations in Pennsylvania and West Virginia. Specifically, ECA has had 66 state inspections with violations, 90 separate violations, 55 enforcement actions and fines of over $80,000 in Pennsylvania, and 70 more violations in West Virginia.

In the meeting, here’s how the conversation about those violations went (watch it yourself starting at 10:26):

John Grewell: Can either of you comment on, you’ve had issues in Pennsylvania?

Jennifer Vieweg: Yeah, that’s something that is not well understood. It’s very different from anywhere else and here’s why:

Jennifer Vieweg: “There was a lot of misunderstanding with regard to the regulations.”

The industry changed dramatically in Pennsylvania in about 2007-2008. Regulations changed constantly, regulators weren’t even quite sure what the regulations were. The industry, because the regulators didn’t know what the regulations were, it was hard for the industry to know what the regulations were, they were constantly changing so it was very hard to remain in compliance. All of that’s evened out over the last three years or so. Things have evened out. The industry understands what the regulations are, the regulators understand what they are, and, as such, you don’t see any of the same kind of issues as when it was constantly changing. There was a lot of misunderstanding with regard to the regulations.

John Grewell: So I guess in layman’s terms, were the rules changing?

Jennifer Vieweg: Yes. The rules were constantly changing. So once the legislature put together a consistent, they call it Act 13. Once they put that body together it’s been far easier for the regulators and for those in the industry to make sure we stay in compliance.

Let’s be as clear about this as we can, because the Commissioners should not allow the company to get away with telling a story that can be checked so easily, and that can be proven to be completely false. ECA has a very poor compliance record in Pennsylvania. I urge you and the Commissioners to read the report for yourself.

Violations during the “misunderstanding” period
Here are some examples of violations that occurred in the period 2008 – 2010, which Jennifer dismisses as “misunderstandings”:

• August 7, 2008: 78.56PITCNST. Impoundment not structurally sound, impermeable, 3rd party protected, greater than 20″ of seasonal high ground water table; 401 CSL. Discharge of pollultional material to waters of Commonwealth; 102.4INADPLN – E&S (erosion and sediment control) plan not adequate. Fined $6,000.
• April 3, 2009: 102.4. Failure to minimize accelerated erosion, implement E&S (erosion and sediment control) plan, maintain E&S controls. Failure to stabilize site until total site restoration under OGA Sec 206(c)(d); 8.56FRBRD. Failure to maintain 2′ freeboard in an impoundment; 401 CSL. Discharge of pollutional material to waters of Commonwealth; 401 CSL – Discharge of pollutional material to waters of Commonwealth, sediments discharged to Little Trout Run. Fined $3,500.
• September 1, 2009: 210UNPLUG – Failure to plug a well upon abandonment. Fined $6,500.
• March 16, 2010: 102.4. Failure to minimize accelerated erosion, implement E&S plan, maintain E&S controls. Failure to stabilize site until total site restoration under OGA Sec 206(c)(d); 401CAUSEPOLL. Polluting substance(s) allowed to discharge into Waters of the Commonwealth. Fined $5,750.

Folks, these are not misunderstandings:

• Dumping wastewater into Little Trout Run is not a “misunderstanding.”Did ECA imagine that it was ok to dump produced water into a trout run? Did the trout misunderstand that they were getting industrial sludge dumped into their local habitat?
• Failure to cap an abandoned well is not a “misunderstanding.” Open, uncapped wells can cause air and water contamination.
• Having an impoundment that is not structurally sound is not a “misunderstanding.” A leaky impoundment means water seeps into the ground, where it can contaminate water wells, ditches and streams.

Violations after things “evened out”
But giving ECA the benefit of the doubt for a moment, since they say that in the last three years they now understand the law, let’s look at some violations from their file over the last three years, when they say things have “evened out.” Here are some violations over the last three years:

• April 11, 2012: 6018.301 – Residual Waste is mismanaged.
• May 4, 2012: 210UNPLUG – Failure to plug a well upon abandonment
• July 17, 2013: 307CSL. Discharge of industrial waste to waters of Commonwealth without a permit.
• July 22,2013: 307CSL. Discharge of industrial waste to waters of Commonwealth without a permit. Fined $4,238
  
• January 14, 2014: 102.4. Failure to minimize accelerated erosion, implement E&S plan, maintain E&S controls. Failure to stabilize site until total site restoration under OGA Sec 206(c)(d).  691.401WPD. Failure to prevent sediment or other pollutant discharge into waters of the Commonwealth.

I’m not an expert in these things, but those look like pretty much the same laws and the same violations as in the period when everybody misunderstood the law. These practices have nothing to with understanding, but with shoddy practices that put landowners at risk of water contamination.

Why this is important
The reason why this is particularly important is that Pennsylvania is unique in the detail of records they make available to the public. It is the one place we get a real window into public data about how an individual operator has complied with the law.

In Montana, by contrast, there are no inspection results available online. In fact, last month Northern Plains Resource Council sued the Montana Board of Oil and Gas Conservation (BOGC) demanding that they uphold the Montana State Constitution by making information regarding the impacts of oil and gas drilling available to the public.

What’s more, the BOGC does not have the resources to protect the safety of citizens of Montana even if it had the inclination. Right now the BOGC has only seven inspectors for the entire state — two in Billings, two in Shelby, and one each in Miles City, Sidney and Plentywood. According to the a study done by the Western Organization of Resource Councils (WORC), this number has grown by only one inspector since 1999. while the number of active wells in Montana has grown by 54% during that time.

Enforcement is also a problem. While the number of violations issued by Montana state inspectors more than doubled from 2004-2011, there’s no teeth in it. According to the WORC study, there were only 26 fines issued in the state over the four-year period from 2007-2010, with total fines issued of $18,950 over those four years (page 18).

So when Justin Noble and Jennifer Vieweg say ECA has an exemplary recordin Montana  (“as far as I know”), there’s no way to tell whether that’s true or not. What is publicly available about their safety record for the five wells they currently operate in Roscoe? Nothing.

A matter of trust
This brings us back around to the issue of trust. This is a company that has a terrible compliance record in the one state that publishes those records for the public. They won’t tell us their plans for the Beartooth Front. They won’t commit to design specifications. They won’t tell the truth about their poor record of compliance in Pennsylvania.

Should the residents of the Silvertip community trust them with their land and water? Would you?

The Commissioners have access to this report. They should read and understand that this is a key reason why we need a citizen initiated zone, as the residents of the Silvertip area have requested. They should ask hard questions, and demand real answers, not carefully planned evasions dreamed up by a PR guru from West Virginia.