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Environmental Hearing Board Clears Away More Attempts By Olympus Energy To Block Shale Gas Permit Appeal By Protect PT In Westmoreland County; Olympus Fails To Provide Info On PFAS ‘Forever Chemical’ Use

On May 15, the Environmental Hearing Board denied an Olympus Energy, LLC motion to prevent Protect PT from presenting expert reports and testimony in an appeal involving DEP permits at the Metis Shale Gas Well Pad in Penn Township, Westmoreland County. [EHB Docket #2023-025]

“In its appeal, Protect PT asserts that the Department’s issuance of the permits allows the introduction of PFAS, PFOA [‘forever chemicals’] and other chemicals into the environment through hydraulic fracturing without properly regulating or limiting their use and fails to require full disclosure of those chemicals.”

The Olympus motion deals with reports and testimony of Protect PT’s experts Dusty Horwitt, J.D. and Dr. Carla Ng, PhD.

“Dusty Horwitt holds a J.D. and is a consultant with Physicians for Social Responsibility. His report discusses the use of PFAS in oil and gas operations and Pennsylvania’s regulatory framework regarding the disclosure of hydraulic fracturing chemicals.”

“Carla Ng, Ph.D. is an Associate Professor in the University of Pittsburgh’s Department of Civil and Environmental Engineering with secondary appointments in the Department of Chemical and Biological Engineering and Department of Environmental and Occupational Health. Her report discusses PFAS, including exposure, toxicology and potential linkage to the oil and gas industry.”

“Olympus has moved to strike both reports on the grounds they are 1) mere summations of research by other parties, 2) not based on generally accepted scientific methodology, 3) speculative and 4) not relevant to the gas wells that are the subject of this appeal.”

“Olympus does not take issue with any particular methodology employed by Dr. Ng and Mr. Horwitt; rather, its argument is that the reports do not contain a methodology and are simply a collection of data. It asserts that the “reports, in short, are devoid of any express or implied methodology for their opinions.”

“Protect PT disagrees; it argues that Dr. Ng’s and Mr. Horwitt’s reports draw conclusions based on a litany of peer- reviewed work which is an acceptable methodology in their field.

“It asserts that the reports contain “citations to 190+ publications, including [Dr. Ng’s and Mr. Horwitt’s] own research, peer reviewed publications, publications authored by experts in their relevant fields, and studies with thoroughly explained methodology and robust data,” and, as such, “fall well within the type of scientific rigor envisioned by Pennsylvania when implementing the Frye standard [a legal standard related to expert testimony].””

The Board disagreed with Olympus Energy’s argument and said, “we believe this is a matter more appropriately addressed through cross-examination at a hearing.”

Protect PT Blocked From Getting Critical Information

“Finally, Olympus argues that the reports of Dr. Ng and Mr. Horwitt are speculative and fail to address matters specifically related to the particular well site in question in this appeal.”

“Protect PT counters that any lack of specificity in its reports is not reflective of a deficiency in the experts’ analyses, but, rather, Olympus’ inability or refusal to provide information that would allow Protect PT’s experts to draw more case-specific conclusions.

“Protect PT asserts that it must work in terms of generalities due to trade secret laws and regulations that prevent the disclosure of many substances used in the hydraulic fracturing process, including operations at Olympus’ site.”

“Protect PT points out that it has served a subpoena on Olympus’ chemical supplier to obtain the identities of the chemicals used in its hydraulic fracturing process.

“Olympus filed objections to the subpoena which were overruled on April 15, 2024.

“Protect PT asserts that, until it obtains this information, its experts have no choice but to speak generally.

“It adds that Olympus itself could clear up any uncertainty by simply providing the specific identity of the chemicals used in its hydraulic fracturing process.”

“Protect PT has sufficiently explained why its experts cannot proceed with a higher level of certainty due to barriers that prevent the disclosure of much of the information it seeks. We note that discovery is still ongoing in this matter.

“While Olympus and the Department have had Protect PT’s expert reports since August 2023, they have not yet produced their own reports.

“Although Olympus filed this motion for the purpose of removing uncertainty, it is possible that the production of Olympus’ expert reports may clear up some of that very uncertainty.

“Additionally, as noted earlier, Protect PT has only recently had the opportunity to subpoena Olympus’ supplier for information related to the substances used by Olympus in the hydraulic fracturing process at the Metis site.

“Amid this backdrop, there is no basis for taking the drastic step of striking Protect PT’s expert reports and expert testimony.”

Click Here for a copy of the Opinion and Order.

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