Falcon Pipeline Criminal Charges Explained

Overview

The 97-mile Falcon Pipeline travels through southwestern Pennsylvania, eastern Ohio, and the West Virginia panhandle to connect three major ethane sources from Houston, Pennsylvania, Scio, Ohio, and Cadiz, Ohio, to the Shell Chemical Appalachia Petrochemical Complex located in Beaver County, Pennsylvania. Ethane is a volatile natural gas that is captured during fracking, which can be used to manufacture plastic. The construction of the Falcon Pipeline started in early 2019, and its utilization began in November 2022. 

Kirk Jalbert started monitoring the Falcon in December 2016, creating an Environmental Impact Assessment (EIA) project to involve residents in public monitoring and to provide analyses of the environmental and public health impacts of the pipeline’s construction. Documents obtained through a public records request from the Pennsylvania Department of Environmental Protection (DEP) and the Ohio Environmental Protection Agency submitted by former FracTracker Alliance employee Erica Jackson in 2020 revealed 250,000 gallons of drilling fluid was spilled over 70 events during construction. 

In March 2021, FracTracker obtained documents from the Pennsylvania DEP revealing that the Falcon was under investigation by the DEP, the Pennsylvania Office of Attorney General (OAG), the Pipeline Hazardous Materials Safety Administration (PHMSA), and the United States Environmental Protection Agency (EPA). Our press release and timeline of related events can be found here. In 2022, the Pennsylvania DEP executed a consent assessment of civil penalty against Shell Pipeline Company LP and their contracting company Minnesota Limited LLC for violations of the Falcon’s construction permit and Pennsylvania laws and regulations.

On April 19, 2024 Pennsylvania Attorney General Michelle Henry charged Shell Pipeline Company LP with thirteen misdemeanor charges for failure to report and/or false-reporting of industrial waste releases to the DEP during the construction of the Falcon. The potential pollution caused by the spills violates the Clean Streams Law (Title 25 Pa Code §78a.68a(i)). Shell spokeswoman Virginia Q. Sanchez said the company is “reviewing the complaint and has been in contact” with the Attorney General’s office. 

Criminal Charges

The criminal charges address incidents that occurred between April 2019 and August 2020 along the 45 miles of the Falcon that travels through Washington, Allegheny, and Beaver Counties in Pennsylvania.The incidents document two types of spills, losses of circulation (LOC) underground, and inadvertent returns (IR) aboveground that occurred during the process of horizontal directional drilling (HDD) that is used to create the path of the pipeline underground (Table 1; Figure 1). Sixteen HDDs were executed within Pennsylvania during the Falcon’s construction.

Table 1. Pipeline Construction Definitions

Source: Trenchlesspedia.com

Figure 1. Horizontal Directional Drilling (HDD) Diagram. Source: Enbridge Pipeline

Shell Pipeline Company LP is officially the defendant in this case, but their pipeline construction subcontractor Minnesota Limited LLC (co-permitee) and the HDD subcontractor Ellingson Trenchless are also mentioned in the charges. The criminal charges include seven counts of unlawful conduct under the Clean Streams Law, three counts of prohibition against discharge of industrial wastes, and three counts of prohibition against other pollutions (Table 2). 

The Inadvertent Return (IR) Plan established between Shell and the DEP as a precondition for their construction permit approval stated:

“Shell is required to notify the DEP of any IRs, regardless of the amount of drilling fluid that surfaces. At a certain IR volume, Shell is required to notify the DEP and cease drilling operations until DEP approves a re-start report. These conditions are as follows:

1. IR of 200 gallons or greater, defined as an upland area with no surface waters or wetlands. 
2. An IR of 50 gallons or greater in an area with surface waters or wetlands. 
3. A 2nd or subsequent IR of any quantity into surface waters or wetlands.”  

The project encountered multiple incidents that warranted reporting or shut-downs under these criteria.

Table 2. Offense Descriptions from the April 2024 Criminal Complaint

Horizontal Directional Drilling (HDD), loss of circulation (LOC), inadvertent return (IR), unnamed tributary (UNT). Sourced from the April 2024 Criminal Complaint.

Incident Locations and Affected Waterways

It is difficult to assess the potential impact that the IRs and LOCs pose as many of the charges describing affected streams and wetlands do not list the amount of mud discharged. Drilling mud contains water, chemical additives, and bentonite clay (sodium montmorillonite). It is considered nontoxic, but if large amounts of the drilling mud are released into waterways the heavy sediment can harm aquatic life and impact drinking water. The potential for the Falcon to impact waterways presented a high risk as the pipeline planned to intersect 319 streams and 174 wetlands. Waterways of particular concern include the Ambridge Reservoir, which provides drinking water for 30,000 people. The spill in this watershed was the smallest reported, allegedly totaling only 50 gallons. Raccoon Creek was also listed as an affected waterway in the criminal charges. Raccoon Creek flows into the Ohio River, which provides drinking water for 5 million people.

View Interactive Map

The events and locations named in the criminal charges (Table 3) are largely encompassed in FracTracker’s 2020 map and report. According to a public records request submitted by FracTracker employee Erica Jackson in 2020, during the Falcon’s construction in Pennsylvania, there were 34 loss of circulation events totaling 172,116 gallons of drilling fluid and 18 inadvertent return events totaling 5,546 gallons of drilling fluid. Previously reported spills at locations including Houston #4 HDD, Houston #5 HDD, Houston #6 HDD, Houston #16 HDD, Scio #4 HDD, Scio #5 HDD, Gums Run, Frames Run, Millers Run, and Westland Run were not addressed by the criminal charges. 

A 2022 civil penalty fining Shell for $670,000 highlighted 27 violations associated with negative impacts to 23 Pennsylvania waterways including Raccoon Creek, Service Creek, Gums Run, Frames Run, Ambridge Reservoir, Haden Creek, Mill Creek, Potato Garden Run, Raredon Run, Millers Run, Westland Run, Robinson Run, and the Ohio River. Not all the locations and dates named in the October penalty are encompassed within the criminal charges, either. The discrepancies that are apparent in the different IR and LOC sources speak to the lack of proper recordkeeping and transparency exhibited during the construction of the Falcon.

Table 3. April 2024 Criminal Complaint Incidents Compared to the 2020 FracTracker Report

Horizontal Directional Drilling (HDD), loss of circulation (LOC), inadvertent return (IR), unnamed tributary (UNT). Location Name, Date, Event, and Gallons columns are sourced from the April 2024 Criminal Complaint. The Latitude, Longitude, and data in the Included in the 2020 FracTracker report? columns were sourced from FracTracker’s 2020 report based off of our public records request from the Pennsylvania Department of Environmental Protection and the Ohio Environmental Protection Agency. 

Investigation Details

The criminal charges are based on the testimony of whistleblowers named Frank Jacob Chamberlin IV and his spouse Susan D’Layne Carite and the subsequent investigation that their testimony initiated. Chamberlin and Carite worked on the pipeline as HDD Inspectors. The couple first contacted PHMSA and the DEP in 2019. In his testimony Chamberlin wrote “we did our jobs, and we were harassed, abused, ridiculed, and humiliated then released because we would not follow the bad seeds that are giving the industry a very bad reputation.” Chamberlin provided text messages, documents, and photos as evidence. 

According to the charge document, the OAG, Environmental Crimes Section assumed jurisdiction over the matter on October 16th, 2019. Between December 2019 and February 2024, the OAG interviewed 29 individuals connected to the construction of the Falcon Pipeline (Table 4). Interviewees included HDD inspectors, Ellingson Trenchless employees, Shell project managers, and DEP staff. Interviewees were questioned about whose responsibility it was to report IRs and LOCs, whether they were aware of an IR reporting agreement with the DEP, whether they had been told to minimize IRs and LOCs, and whether they acknowledged the terms like “controlled release” or “managed return.” 

Table 4. Interview Testimony Summary from the April 2024 Criminal Complaint 

Sourced from the April 2024 Criminal Complaint.

Chamberlain named HDD Environmental Lead Eric DeLong and the HDD Coordinator Sean Larson as the main entities responsible for under-reporting IRs and LOCs. When interviewed, Larson confirmed that he had been responsible for reporting IRs and LOCs to the DEP until he was fired from the project in September 2019 for what he believes was being “…too open and honest with the DEP,” although he also admits to yelling and using obscenities when addressing a fellow employee. Larson said that Eric DeLong and the Shell Project Manager Doug Scott instructed him to underreport to the DEP. Eric DeLong took over incident reporting to the DEP after Larson was fired.

The testimonies from the investigation suggest that Shell and its associates intentionally underreported or failed to report IRs and LOCs during HDD operations for the Falcon Pipeline. IRs and LOCs were potentially hidden to avoid shutdowns that would cost Shell approximately $40,000/day in stand-by pay to Ellingson Trenchless contractors according to multiple interviewees. DEP staff indicated that the maximum amount that they could fine Shell for project violations was $10,000/day, which would make it less costly to pay fines than stand-by pay. There may have been an attempt to introduce unapproved terms like “controlled release” to avoid accountability for continued drilling despite multiple and/or continuous releases at the same location, though the origin of this phrase is unclear. Some interviewees reported that a vacuum truck was used to clean up unreported spills to allow drilling to continue. Tensions seemed high between HDD Inspectors and Ellingson Trenchless contractors when it came to the implementation of the IR plan. The elevation changes and geology of Pennsylvania seem to have challenged the project, and Ellingson Trenchless reportedly lacked experience in the region and was not accustomed to Pennsylvania’s regulations. 

Lingering Questions

There are several lingering questions concerning the pipeline’s construction. We know that spills were not confined to Pennsylvania during the project. For example, there are documented significant HDD difficulties that occurred when the HDD team attempted to cross Wolf Run Creek in Jefferson County, Ohio. This location is of significant concern due to its proximity to an inactive coal mine. According to the 2020 public records request, 15 LOCs totaling 73,414 gallons and two IRs totalling 35 gallons occurred in Ohio. So far, no news has revealed whether the pipeline’s construction will be investigated in Ohio or West Virginia. In 2021, FracTracker and other partners wrote a letter asking state regulators in Ohio and West Virginia to investigate incidents that occurred during the construction of the Falcon and their impacts on water resources. The responses from the agencies indicated that they did not plan to follow through on the request.

Another question concerns the potentially defective corrosion coating protection on the pipes used to construct the Falcon Pipeline. PHMSA investigated this issue briefly in 2019 after complaints from Chamberlin and stated that they did not find deficiencies in the coating. DEP Secretary Patrick McDonnell wrote PHMSA a letter indicating that the DEP thought that this investigation was incomplete. A review of PHMSA’s enforcement actions web page shows two subsequent cases concerning the Falcon Pipeline. A case initiated on July 16, 2020, requested amendments to Shell’s procedures concerning written standards for visual pipeline inspection, addressing proximity to buildings and homes, and actions to be taken if coating damage was observed during HDD, as well as inadequate welding procedures. The second case initiated on July 16, 2021 resulted in the issuance of a warning and fine to Shell Pipeline Company LP concerning Pipeline Safety Regulations for support of coated pipe during handling. PHMSA noted two instances in Potter Township, Pennsylvania where coated pipe supported on skids was not properly padded. No further investigations have been conducted by PHMSA, and it is unclear whether the risk of coating deficiency has been fully addressed. 

The Falcon Pipeline carries 107,000 barrels of liquid ethane per day across 25 municipalities in three states, meaning a pipeline leak could lead to devastating consequences. There are 550 family residences, 20 businesses, 240 groundwater wells, 12 public parks, five schools, six daycare centers, and 16 emergency response centers within potential risk areas. Concentrated ethane is very dangerous, as it is highly flammable, potentially explosive when mixed with air, and may cause frostbite or cryogenic burns and displace oxygen leading to suffocation. A leak would allow the colorless and odorless gas to spread, and triggers such a car ignition could cause an explosion.

Finally, there are certain questions that remain concerning details mentioned in the testimonies. Both Todd Weed and Sasha Steele recall checking the additives that were used to drill to “make sure they weren’t trying to sneak in any un-approved additive,” according to Steele. This begs the question of how often un-approved additives may have been successfully “sneaked in” and what they might have contained. Dalton Darden mentioned that an “incorrect mud mix” was used, but did not elaborate on what he meant besides saying that the incorrect mix did not allow drill cuttings to resurface. Doug Scott mentions that he was unfamiliar with the terms “managed” or “controlled” release, but FracTracker has documents from December 2019 that he is cc’d on that describe activity at a “controlled release point.” Despite the much clearer picture that these testimonies present, it is still uncertain whether the whole story has been told. 

Hearing

The charges were brought to Magisterial District Judge Louis McQuillan’s office in Washington County, Pennsylvania. Once the validity of the charges are confirmed at the magisterial level, the case may move to another court. The amount of testimony that references specific employees might suggest that there will be consequences for individuals. If Shell is found guilty, this case could represent a shift in the political landscape and lead to higher consequences for future misconduct from Shell or make it harder for them to receive permits.

Conclusions

The criminal charges brought against Shell Pipeline Company LP reflect irresponsible practices that occurred during the Falcon Pipeline’s construction. The final consequences for Shell and its contractors remains unclear. The preliminary hearing at the Magisterial District Court was scheduled for May 30, 2024, but has been rescheduled for August 1, 2024, at 9:15 a.m.