XTO Energy seeks dismissal of criminal charges in 2010 wastewater spill

XTO Energy Inc. is seeking the dismissal of criminal charges for a 2010 gas-drilling spill, saying Pennsylvania Attorney General Kathleen G. Kane selectively prosecuted the company in pursuit of a politically motivated anti-fracking agenda.

The Exxon Mobil subsidiary filed a motion in Lycoming County Court on Monday arguing that the Office of Attorney General had failed to prove a criminal case against it in connection with the spill of about 50,000 gallons of wastewater at a Marcellus Shale drilling site.

The natural-gas producer, based in Fort Worth, Texas, also argues that Kane's office is prosecuting XTO even though the company remediated the spill and agreed to a $100,000 settlement to resolve federal civil claims. XTO says more serious environmental violations have not drawn the same level of prosecution or publicity from Kane.

"The available evidence suggests that the commonwealth's baffling selection of XTO for corporate criminal prosecution is part of an arbitrary law enforcement agenda to end hydrofracturing in Pennsylvania altogether," XTO's attorneys say in the filing before Judge Marc F. Lovecchio in Williamsport.

XTO pointed to statements that Kane, a Democrat, made to the Allentown Morning Call during her 2012 campaign to "fight to ensure" that hydraulic fracturing, commonly known as fracking, is ended.

"Her unambiguous campaign statement evidences a clear intention to use the OAG's prosecutorial authority to stop well operators, like XTO, from engaging in the statutorially protected business activity of hydrofracturing natural gas wells in Pennsylvania," the motion says.

A spokeswoman for Kane declined to comment on the allegations, saying the attorney general would respond in a forthcoming court filing.

Kane's announcement in September of charges against XTO was denounced by industry leaders for creating a hostile business climate, but it was hailed by environmental activists who say the industry has received soft treatment from Pennsylvania regulators.

XTO is the only Marcellus Shale gas producer to be criminally charged for environmental violations, though several waste haulers have been prosecuted for illegal dumping.

The XTO charges stem from the discovery of wastewater leaking from steel storage containers on a drilling location known as the Marquardt site. XTO said that the containers were managed by a contractor who was treating the waste for recycling and that investigators cannot determine who opened valves that allowed the wastewater to drain onto the ground and into a nearby creek.

Kane's office has said it does not need to prove intent to prosecute the company for crimes. XTO is charged with five counts of unlawful conduct under the Clean Streams Law and three counts of unlawful conduct under the Solid Waste Management Act.

XTO's lawyers argued that Kane has singled out XTO out in an "unconstitutional" effort to fulfill a campaign pledge, and they added that there was "no significant or lasting environmental damage" from the spill.

It cited the attorney general's "enhanced publicity" about the XTO case, including Kane's office posting Facebook and Twitter links in December to a news release from the advocacy group PennEnvironment that quoted legal experts praising the XTO prosecution. The links were to a Kutztown group called Raging Chicken Press, which describes itself as a "left/progressive media site" supporting "on-the-ground activism and communities of resistance."

XTO said its case was the only matter cited by the attorney general's annual report under environmental prosecutions, ignoring four "more serious" cases.

"The OAG is targeting and prioritizing the prosecution of natural gas operators engaged in hydrofracturing over nonnatural gas well operators not engaged in hydrofracturing," the company said.

It asked the judge to force Kane's office to produce all documents related to its selective-prosecution claim, including internal communications about publicizing the prosecution and communications with third parties, including environmental groups.

XTO is represented by Williamsport lawyer Edward J. Rymsza, James M. Becker of Buchanan Ingersoll & Rooney in Philadelphia, and Thomas J. Kelly Jr. of McKenna Long & Aldridge in Washington.

215-854-2947 @maykuth