The Facts About A So-Called ‘Gag Order’ In Pennsylvania
You’ve probably read about an agreement between natural gas companies and a landowner in western Pennsylvania, an agreement that – if we’re to believe most of the headlines – included a “gag order” on two children. Many stories also suggest the family was pressured into keeping secret the terms of the agreement, including an affirmation that there was no medical evidence to support the family’s claims of health impacts. In fact, much of the coverage has subtly suggested that the family did believe there were health impacts, but agreed to say otherwise to settle the matter.
The facts tell an entirely different story.
‘No Medical Evidence’ of Health Impacts
In 2010, Stephanie Hallowich appeared in a video in which she provided a laundry list of chemicals in her water, saying “they all cause cancer.” She added that the compounds in the water are “really frightening with two little kids” and “we don’t know how serious that’s been.” She also expressed concern about exposure to airborne contaminants. The “General Factual Allegations” section in the family’s lawsuit against companies in the area stated that “acrylonitrile is commonly used as part of the liner for the water impoundment and is also utilized as a chemical to reduce friction related to the involved gas drilling and processing activities.” The statement adds that the Department of Health and Human Services determined “acrylonitrile may reasonably be anticipated to cause cancer in people.”
- FACT: Pa. DEP determined there was no evidence that nearby drilling and development polluted the Hallowiches’ water.
- DEP: “Mrs. Hallowich alleges that the drilling of the gas well polluted the aquifer. As the following will demonstrate, we are lacking any direct evidence to prove this assertion.” (DEP correspondence, Aug. 2009)
- DEP: The compounds identified by Mrs. Hallowich were “non-detect or within drinking water standards.” (DEP correspondence, Aug. 2009)
- FACT: Air sampling conducted by Pa. DEP showed emissions levels in the region were below health thresholds.
- Pa. DEP “did not identify concentrations of any compound that would likely trigger air-related health issues associated with Marcellus Shale drilling activities.” (DEP air sampling report for SW Pa., Nov. 2010)
- FACT: According to a Pa. DEP investigation of the Hallowiches’ water supply, acrylonitrile was most likely originating from other sources, and Range was not using acrylonitrile.
- Pa. DEP: “The report identifies acrylonitrile as a possible constituent of the liner and suggests the latter as a cause because there are no other sources in the area. Acrylonitrile is used in the manufacture of plastics, glues, pesticides, ABC pipe (common drain pipe used in homes; the “A” stands for acrylonitrile), synthetic rubber, acrylics, carpets, dinnerware, food containers, toys, luggage, automotive parts, appliance, telephones, among others. It can also be washed from the air by rain and then enter the groundwater system. There is a plastic rock which has been placed over the water well and could be leaching contaminants into the ground during rainfall events, which interestingly enough is when Mrs. Hallowich reports that the acrylonitrile values seem to increase based upon on-going sampling and apparently has been occurring.” (DEP correspondence, Aug. 2009)
- “Because acrylonitrile is in so many plastics, [the Hallowiches] maintain that a probable source is one of the plastic liners—either in the fresh water impoundment or in one of the drilling waste pits buried on site. But Range, which has publicly disclosed its fracking chemicals since this summer, says acrylonitrile is not used in its processes or in its plastic liners.” (Nat’l Geographic, October 2010)
- FACT: The Hallowiches signed an affidavit, under oath and in consultation with their own attorney, affirming there was no evidence to support their claims of negative health impacts in their children.
- Affidavit: “The minors have alleged claims for nuisance and personal injury in connection with Defendants’ business operations. There is presently no medical evidence supporting that these claims are related to any exposure to Defendants’ business operations as set forth in Plaintiffs’ Complaint…And presently, the minors are healthy and have no symptoms that may allegedly be related to Defendants’ business operations.” (p. 2)
- David Poole, Range Resources’ general counsel: “I presume it’s for these and the countless other reasons that your client [the Hallowiches] signed an affidavit indicating that their children were healthy and not demonstrating any symptoms that were allegedly associated with industry activity. Given that their statements in the affidavit were made in consultation with you and under oath, I think it is clear which statements are true.” (Letter to Peter Villari, Aug. 2013, p. 2)
Regulators determined the water and air impacts the family alleged were without merit, and the family admitted under oath that there was no medical evidence for their claims, particularly with respect to their children. Could it be that the paucity of evidence supporting them – and preponderance of facts disputing their claims – is why the Hallowiches (not the gas companies) requested that the details of the settlement be sealed?
The So-Called ‘Gag’ Order
The Pittsburgh Post-Gazette characterized an agreement between operators and the Hallowiches as “a lifetime ‘gag order,’ as the judge called it…” An NPR story said “the parents were desperate to move and reluctantly agreed to a gag order that not only prevents them from speaking of Marcellus Shale and fracking, but also extends to their children.”
- FACT: It was the Hallowiches, not the gas companies, who requested that the settlement agreement be sealed and kept confidential.
- Peter Villari, attorney for the Hallowiches: “…The only thing that’s not in it was the actual settlement agreement, the matters we wanted to be sealed and not exposed to the docket at any time until it was sealed.” (p. 3)
- FACT: It was Villari (the Hallowiches’ attorney), not the judge, who introduced the term “gag order.”
- Peter Villari: “Do you understand that by this agreement each of you have been subjected to a confidentiality agreement, and I’ll use this phrase, for want of a better one, which is in essence a gag order?” (p. 5)
- FACT: Contrary to countless media reports, Range Resources said clearly that no restrictions on children exist.
- Matt Pitzarella, Range Resources spokesman: “Those comments are not accurate from our former outside counsel and are not reflective of our interpretation of the settlement. The seven and ten year olds are free to discuss whatever they wish now and when they are of age.” (NPR, August 2013)
- David Poole, Range Resources general counsel: “Had you raised the question then or since that time I would have advised that it was Range’s expectation only that the parties who signed the settlement agreement – specifically Stephanie and Christopher Hallowich – would be bound by and honor those terms.” (Poole letter to Villari, Aug. 2013, p. 2; emphasis added)
- Days after its initial report on the “gag order,” the Pittsburgh Post-Gazette finally acknowledged the facts: “Hallowich children not part of Marcellus Shale gag order agreement.” (Pittsburgh Post-Gazette, August 2013)
The media was interested in a story that showed the industry bullying a family into secrecy and even imposing a “gag order” on children. But the facts speak for themselves:
- The gas companies did not force the agreement to be sealed. The family and its attorney requested that all the documents be sealed, including the affidavit stating that there were no health impacts.
- The term “gag order” was willingly introduced by the family’s attorney during the legal proceedings.
- There was no evidence to support the Hallowiches’ claims of health impacts attributable to natural gas development, a fact that state regulators confirmed with their own investigations.
- The natural gas well installed near the Hallowiches’ home was drilled in July 2007, and the Hallowich water well was drilled three months later in October 2007.
- The property had been leased for development before the Hallowiches purchased the property. The former owner tried to cancel the sale (which included her mineral rights), but the Hallowiches took her to court to obtain the property, including the minerals.
- Nonetheless, Range Resources acknowledged that development had “created a situation that was not ideal for the family,” owing to abnormal nuisance issues associated with the timing of the construction of the home and the initial, exploratory vertical Marcellus wells.
- NOTE: This unique set of circumstances cannot be duplicated with horizontal drilling and Pennsylvania’s subsequently updated set back provisions, which Range actually supported.
- Range Resources has said clearly that the non-disclosure agreement does not apply to the children, who are “free to discuss whatever they wish” now and in the future. The company’s former outside counsel thought it did apply to the children, but more importantly: the company itself neither agrees with that interpretation nor would it enforce such a restriction.