Yesterday MDN began our lead story about a big fine for Antero Resources by saying, “This has to be a record-high amount for a fine plus remediation work, at least in the Marcellus/Utica.” We humbly admit we were wrong. In checking our records, we found that in a similar case from 2014, Trans Energy paid even more, quite a bit more. We researched what this whole business is about, why Antero and others were fined, interviewing a top Antero official, and we now have a far better understanding of what happened and why.

On Monday the U.S. Dept. of (so-called) Justice issued a press release to say they had reached a settlement with Antero Resources, charging Antero with violating the federal Clean Water Act with “unauthorized activities [and] violations that threaten human health and the environment” in Harrison, Doddridge, and Tyler counties in West Virginia (see Antero to Pay $11M in Fines/Restoration for Clean Water Violations). Antero agreed to pay a $3.15 million fine and spend another $8 million to mitigate and restore a wetland site in WV that has nothing to do with the original violations. Penance.

We nosed around and discovered, in our own archives, that Trans Energy was clipped for the same thing back in 2014 (see Court Adds Another $600K to $3M Fine for Trans Energy in WV Case). In Trans Energy’s case, they were forced to pay a $3.6 million fine and perform $13 million worth of restoration work–total tab of $16.6 million!

And there were others. Chesapeake Energy was forced to pay a total of $9.7 million in 2013–a $3.2 million fine and $6.5 million to clean up 27 sites in WV (see EPA Makes Chesapeake Pay $9.7M for Spilling Dirt in Creeks & Swamps). XTO Energy was forced to pay a total of $5.3 million in 2014–a $2.3 million fine and $3 million to clean up various sites in WV (see XTO Paying $5.3M for Violating Federal Clean Water Act in WV).

So what in the world is going on here?

First thing you notice is that all of these cases involve violations of the Clean Water Act (CWA), and they all happened in WV. What’s not apparent is that all of the violations stem from work done in 2011 or before–at the beginning of the shale revolution in WV.

What’s that? You mean that this settlement between the DOJ, EPA, WVDEP and Antero stems from work done before mid-2011? YES.

We requested and got an interview with Al Schopp, Chief Administrative Officer, Regional Senior Vice President and Treasurer for Antero. Al is the guy in charge of what happens in WV. We got the straight story from him.

The first thing to know is that all of Antero’s 32 violations of the CWA happened *before* June 30, 2011. There may have been one or two cases after that time, but soon after. In other words, Antero has not violated the CWA pretty much since that time. These are all OLD cases that have taken this long to resolve with the DOJ.

Why so many violations before June 2011, not only for Antero but the other drillers who got clipped by the DOJ? Basically it stems from a misunderstanding and misinterpretation of the CWA. Different groups within the company and within government agencies used different “delineators” for what is and is not a wetland or intermittent stream–they used different definitions. Based on unclear and fuzzy language in the federal code itself, Antero workers believed certain areas where they built well pads were not in violation of the CWA according to the Waters of the United States (WOTUS) definition. Turns out they were wrong.

In 2011 the definitions were cleared up. Antero voluntarily, without prompting from the government, reviewed all of its well pad and other construction projects in WV using the now cleared-up definition, and found 20 cases where they had built on a wetland or affected a stream without getting proper permission (two-thirds of the final number of violations). Antero turned themselves in!

You need to understand, Antero and other drillers WANT to do things the right way. They do not seek to cut corners and skirt regulations. This was a case of an honest mistake–and Antero’s attempt to make it right once the mistake was discovered.

The EPA and WVDEP reviewed Antero’s self-confessed violations of the CWA and now, nearly nine years later, a final resolution of the matter has been reached with the DOJ.

Yet the DOJ, in its press release about the Antero settlement, mentions none of this. The DOJ press release leaves out the fact that most (if not all) of the violations of the CWA happened before June 2011, and that none of this is new. The DOJ press release implies Antero’s violations are recent, not close to a decade old. And the release implies the Antero was caught red-handed by regulators, which is not the case. Antero volunteered the information.

So now you know the rest of the story–the real story. And MDN is the only place where you get the real story.