The first had occurred in the eastern part of the state on December 22, 2009, the same month ProTechnics pumped radioactive tracers into the Yeagers’ hillside. It struck her as contradictory: on the one hand, these radioactive tracers were allegedly so harmless they could be used at the top of the watershed a few hundred feet from people’s homes; on the other, they were so dangerous that disclosing information about them was a threat to American national security. A terrorist might use such material to build a dirty bomb, the DEP responded to the Smiths in an affidavit. An amount as small as “a pencil eraser” could cause a radioactive cloud that endangered people and heightened their risk of cancer. To Kendra, this sounded ludicrous. Which was it? Were these materials harmless or potential agents of destruction? The DEP seemed to want to have it both ways.
Kendra wasn’t the first person to try to gather information about the industry’s use of tracers only to hit wall after wall. Robert Jackson, chair of the Earth System Science Department at Stanford University, had been studying tracers used in horizontal hydraulic fracturing for years. His team conducted the first studies examining fracking and drinking water. “Chasing tracers is like chasing ghosts,” he told me. They weren’t only proprietary; they were elusive.
Range’s failure to disclose the use of tracers seemed bad enough to Kendra. But she found it harder to stomach what the DEP had done. At one point, she and John got so frustrated that they started asking state employees under oath if they knew the Pennsylvania DEP’s mission statement: To protect Pennsylvania’s air, land and water from pollution and to provide for the health and safety of its citizens through a cleaner environment.
“For me, the greatest injustice is that FBI and EPA and the U.S. attorney haven’t moved on this,” Kendra said. Instead, Special Agent Burgess, the EPA’s environmental crimes investigator, along with his FBI counterpart, had gone silent. But as an EPA criminal investigator, Burgess didn’t have the authority to bring charges; he could only build the best case he could before turning it over to the U.S. Attorney’s Office in the hopes they’d see fit to prosecute. Kendra didn’t understand why the EPA and the U.S. Attorney’s Office didn’t want to move forward; she’d spent days with them explaining the case, and they’d independently confirmed her findings. She thought their passivity betrayed a lack of courage to take on a complicated case.
“Beth, Stacey, and Buzz aren’t perfect plaintiffs,” she told me. “You’ll never have a perfect case. You’ll always have something cutting against you. But so what? You prosecute someone and you lose.”
Finding the tracers wasn’t the only one of what Kendra called “her geeked-out bombshell moments.” Through studying the data sheets, she also found that despite its public statement to the contrary, Range and its subcontractors were using diesel in the frack fluid up at the Yeager site. That was a violation of federal law, and of the Halliburton loophole in the 2005 Energy Policy Act, which stated that although most chemicals related to fracking weren’t subject to federal regulation, diesel still was. It was simply too dangerous to inject in the ground without government oversight. Universal Well Services, the company that conducted the frack at Yeager, along with thousands of others, had written to Congress to say that it didn’t use diesel in its frack fluid, but on those data sheets, Kendra found that Universal Well Services had used diesel. She checked the product ID numbers against those on a federal registry that detailed the elements of diesel fuel, like kerosene, among others. They matched. She had them “dead to rights,” as she liked to say. Substantiating the presence of diesel took her two weeks of work at ten hours a day. She’d have been happy to hand her results about this violation over to federal investigators, yet the investigators were nowhere to be found.
When the EPA finally published the first draft of its study in June 2015, its findings regarding Stacey, Beth, and Buzz’s water were inconclusive. The EPA couldn’t definitively determine whether the drilling process had affected their water, despite the presence of fuels, arsenic, 2-butoxyethanol, iron, and manganese, which differed from house to house. For the EPA, the problem with making such a determination was twofold. First, Washington County had been subject to so many industrial uses over time: “past coal mining activities, agriculture activities, industrial operations, waste disposal … and oil and gas development,” the study argued. All of these uses rendered it impossible to determine whether shale gas development was the culprit. Second, neither Stacey, nor Beth, nor Buzz had a pre-drill. So there was no clear picture of what was in their water before and after drilling. Ron Yeager, however, did have a pre-drill, which Kendra had helped the EPA procure. Based on that pre-drill and the DEP’s finding, the EPA study determined that the Yeagers’ water was contaminated.
The conclusion that the Yeagers’ water was contaminated but their neighbors’ wasn’t mirrored the study’s initial draft conclusions. Although fracking may contaminate water, the EPA said, it didn’t lead to “widespread, systemic impacts on drinking water resources in the United States.” As soon as the EPA published its draft study, the oil and gas industry touted its findings. Energy in Depth ran an article under the banner headline “Long-Awaited EPA Study Finds Fracking Has Not Led to Widespread Water Contamination.”
But the EPA’s Scientific Advisory Board, an independent review panel of scientists examining the draft findings, took issue with this conclusion. The use of phrases like “widespread and systematic” wasn’t based in science or supported by evidence, they argued. These were political words that misled the public.
A year and a half later when the final report was published in December 2016, the EPA removed the phrase “widespread and systematic” and the agency altered its conclusions. Thomas A. Burke, the EPA’s science advisor and deputy assistant administrator of the agency’s Office of Research and Development, told The New York Times that the new report “found evidence that fracking has contributed to drinking water contamination in all stages of the process: acquiring water to be used for fracking, mixing the water with chemical additives to make fracking fluids, injecting the chemical fluids underground, collecting the wastewater that flows out of fracking wells after injections, and storing the used wastewater.”
Although the drinking-water study was the largest and most ambitious effort by the EPA to study the effects of fracking, any important conclusions were lost in the fray as activists and the oil and gas industry argued over what the study really meant. “Fracking,” as a word, had become politicized and polarizing.
“I wish we had never used that word because fracking is now slang for everything bad associated with fossil fuels,” Ray Walker of Range said. Industry had a word for those who condemned extraction near peoples’ homes. The opposition used to be called NIMBY, for “not in my backyard.” Now the term was BANANA: “build absolutely nothing anywhere near anything.”
31 | “THE JUNKYARD PLAINTIFF”
On June 12, 2015, Buzz lost his case. In his verdict, Judge Thomas Renwand wrote that despite “extensive evidence of leaks and spills,” he couldn’t rule out the possibility that the rotting hulks of cars, boats, and school buses in the junkyard, as well as the horse farm across the road, had contaminated his water, not Range Resources. Tom Shepstone, a blogger for Energy in Depth, concluded that the verdict “once more proves the junkyard is [the] best final resting place of not only cars, but also of false fracking accusations.” The Smiths appealed right away, but their appeal was denied.
Even still, the court had hard words for Range. “Range’s reckless business practices, combined with its repeated failure to report problems at the Yeager Site are irresponsible to the extreme, bordering on reprehensible. The list of leaks and spills at the Yeager Site is troubling,” the appeals court wrote in their decision not to hear the case. “Although there is little dispute that the activities at the Yeager Site impacted the environment and contaminated the soil and adjacent springs, the issue before this Court was whether Range’s activities impacted Kiskadden’s water well.”
And on that specific issue, six out of seven judges affirmed Renwand’s decision. There were simply too many potential sources of contamination at the junkyard to be sure where the chemicals had come from. Furthermore, the Smiths hadn’t proven a definitive connection between the Yeagers’ hillside and Buzz’s home. There would be no retrying the case. One judge on the appeals panel, however, disagreed. The Smiths had established the necessary link between the two sites, she argued in her dissenting opinion. They’d presented what she called “volumes of empirical data showing a highly positive (if not nearly perfect) correlation.” In doing so, the Smiths had met their burden of proof: a preponderance of evidence clearly showed that Range Resources was responsible for contaminating Buzz’s water. But as only one judge among six, she held a minority opinion.
“I’m up against more than the law here,” Kendra said in response. “There is no legal reason why this should be denied. If this was an uphill battle before, now it’s Everest.”
* * *
After Buzz lost, he renounced whatever small purchase he’d had on the world. “No one’s going to stop this,” he told me one afternoon when he agreed to leave the cement-block room where he slept in his mother’s basement to speak to me. Often, when I showed up, he simply refused. His mother, Grace, was wary too. For them, there was no advantage in talking, especially now that Buzz had lost his case. Still, Grace was polite and patient enough to entertain my visits, and sometimes she was able to coax Buzzy, as she called him, from his bed.
“They’re making too much money from it,” he said when he finally arose. “That’s what it’s all about: money. Greed.”
He’d stopped raking a razor across his stubbled chin, and his long beard and white mane gave him the look of a prophet. The methane levels in his trailer, and the lack of water, made it impossible for him to live down in the hollow, so he’d moved up the ridge into his mom’s while he was undergoing chemotherapy for his leukemia.
“I’m depressed. I don’t go nowhere unless I have to,” he said. When the leukemia looked to be claiming his life, he’d wanted to stop the treatments. “About gave up on the doctors,” he said. Yet in the end, he persevered, and that perseverance led to good news: the blood-borne cancer had gone into remission. Buzz didn’t really think it was the doctors who’d done it—he thought it was God. But instead of feeling gratitude, he felt defeated. Even after he was given a clean bill of health, he didn’t return to the things he’d loved, riding dirt bikes and fishing. He didn’t even watch TV. He just sat in his room in the dank basement.
His old girlfriend Loretta Logsdon had recently died, but Buzz was still close to her grandson, Junior. Buzz had angered Junior’s mother by forcing her to move out of the trailer too. “I made them move out because I didn’t want them to get sick the way I did. They didn’t understand it. I don’t want anyone living there.” The issue had driven a wedge between them, and now he didn’t get to see Junior anymore, which deepened his hopelessness.
“DEP can’t get me nothing,” he said. “Hauling water now. Me and my mother pay the water. Right now we’re getting it at Walmart.” With Buzz still weak and Grace turning eighty, the sheer weight of hauling water was just as much a concern as the cost. They had to buy one-gallon jugs, instead of five, because neither could lift the heavier ones. Grace, who still relied on dandelion tea as a cure-all, was trying to get Buzz to eat natural foods.
“My mom is trying to get me to eat broccoli raw. I can’t eat that shit. I don’t have no teeth,” he said. He no longer believed that the system could be changed. In fact, he’d never thought the Smiths would win.
On another afternoon, when Buzz refused to get out of bed and I sat waiting for him in the basement, Grace spoke to me of her disappointment.
“I can’t understand how we had papers proving what was in our water, and we still lost,” she said. “I feel we’ve been done an injustice. I’m not against the U.S. making progress, but not at the price of ruining our water. Water is the most precious thing we have.” But that was the way it went now in America. The forces they were up against were simply too big. This wasn’t a matter of fixing the political system. “According to the Bible, we’re not supposed to vote. God puts who he wants on the throne. God permitted this to happen because the U.S. has gotten so far from him.”
As Grace Kiskadden saw it, this was the beginning of the end of the world, as foretold in the book of Revelation.
“The water will become so poisoned, you can’t drink it,” she said. In Revelation 8:11, God embitters a third of the rivers with wormwood, and the men who drink this water die.
“I just hope we’re raptured out of here,” she said.
32 | DIVA
Up the hill at Justa Breeze, Beth hadn’t wanted to risk breeding dogs since she’d lost those two litters in 2011. But now that the DEP had ordered the frack pond closed, Beth figured it was safe to try again. By the late summer of 2015, her boxer Diva was expecting, and one warm day in September, Diva gave birth to a litter of eight puppies in the Voyles’ basement. Afterward, Beth led her down to the stream behind the show ring to cool off. The stream was Tributary Number Four, which flowed from the underground springs on the Yeagers’ hillside down past Beth’s and Stacey’s houses, then on to Buzz’s place down in the Bottoms. Diva splashed and played for an hour while Beth talked to John, who was building a deer blind nearby. Then Beth led Diva back up the hill and into the blue plastic pool in the basement where the puppies were waiting to suckle. Beth lined each up by a teat to nurse, rotating them as she’d learned to do as a breeder.
By the next day, something was wrong. The white sheet lining the blue pool was stained with blood. Diva couldn’t stand. The puppies were bleeding from their mouths and their rectums, and over the next three days, six of the eight died. Diva recovered, or seemed to, for the next several months. Then she struggled to walk again. One evening, Beth was at the stove in the basement cooking the dogs’ dinner when she looked up and saw Diva collapse while trying to climb onto the couch. Minutes later, Diva died. Beth called Kendra to ask if she should have Diva or the puppies autopsied, but Kendra told her not to bother. None of the animal testing had proven conclusive, and they still didn’t know what chemicals to look for.
* * *
John Smith made a policy of not contacting the federal investigators working on the case—“Let them do their own jobs,” he said. But when he saw videos of Diva’s puppies dying, he forwarded them to the EPA criminal division and called Jason Burgess. He asked Burgess to spell out the difference between what had occurred at the Yeager site and the situation in Flint, Michigan, where by early 2016 protesters were carrying signs that read WATER IS A HUMAN RIGHT. To Smith’s thinking, the two cases bore marked similarities. The story in Flint involved a government cover-up as well as lead poisoning. Why was the EPA willing to move on Flint and not in Washington County?
The difference was public versus private water. If there had been forty houses below that leaking pond, and if Stacey, Beth, and Buzz relied on public water, which, unlike their private wells, was subject to regulation, then they’d have a winning criminal case. As it stood, the investigation hadn’t been closed, yet by the time 2016 began, Smith surmised it wasn’t moving forward. He knew that investigators had summoned Carla Suszkowski to Pittsburgh for an interview. She’d flown up from Texas, where she now lived and worked for Southwestern Energy. The statute of limitations on any violations she might have committed at the Yeager site was approaching. If the federal government didn’t bring charges against her soon, it would be too late.
To the Smiths it seemed clear that all of Burgess’s promises to their clients—his talk of handing over his gun and his badge—were going to be for naught. Kendra felt that speaking to him any further was a waste of her time. But Burgess had cause to be frustrated also. What looked to Kendra like a slam dunk in her civil arena was in fact much harder to prove as a federal environmental crime.
Beth wasn’t going to let the federal
investigators fade away so easily. She suspected she knew what had killed Diva and her puppies: some unknown chemical remaining in the waters of Tributary Number Four. The stream was fed by the Yeagers’ springs, and there was no dispute that Range’s actions had contaminated them.
To keep her dogs safe, Beth had been giving them bottled water for more than a year, but it never occurred to her that the little stream flowing behind her house might be dangerous. Now she wondered if Tributary Number Four was contaminated and whether Diva had splashed around in something, then passed that on when she nursed the puppies. Beth wanted answers, and she wanted to know why the EPA hadn’t made a single indictment in their case. For months, she’d been calling Jason Burgess once a week to leave messages. In June 2016, she called the office of Nelson Cohen, the assistant U.S. attorney who’d been assigned to their case, and demanded to find out what had happened. She also left a message for Samantha Bell, an FBI analyst. Together, Cohen and Bell called her back. Beth had questions written down for the conference call: What about the labs altering test results? Isn’t that conspiracy and fraud? What’s happening with your investigation into Carla Suszkowski? Beth found Cohen’s answers frustratingly vague. About all he would say clearly was that the investigation was still ongoing. Beth didn’t believe him. She knew enough by now about the laws regarding water to know that Tributary Number Four belonged to all the citizens of Pennsylvania. That’s what it meant to be a water of the commonwealth. Even if their private wells weren’t subject to regulation, polluting the stream should count as a violation of the law. But her argument didn’t seem to make any difference. After the call, she phoned Stacey to commiserate.
Stacey was finished with the federal government. She was also tired of waiting for the case to come to trial. She worried about the toll that living in limbo was taking on the kids. Emotionally, Paige seemed intact. Despite her troubles with school, she kept herself busy playing lacrosse, raising her 4-H pig, and planting flocks of plastic flamingos in people’s yards to raise money for a local boy with cancer. Informal fund-raisers were common in Amity. When people were hit with high medical bills that insurance didn’t cover, neighbors often hosted spaghetti or pancake dinners to help out. Stacey was more and more concerned about Harley growing older down in the basement. Thanks to cyber school, he’d finished eleventh grade virtually, without leaving his room, then returned to Trinity for twelfth, walking across an actual stage to get his diploma that past June. Triumphant about his graduation, she sent out photo announcements: four pictures of Harley Austin Haney leaning against pickups, riding a four-wheeler, standing against a weathered barn.
Amity and Prosperity_One Family and the Fracturing of America Page 26