PA Environment Digest Blog: Environmental Hearing Board Agrees There Is ‘Acute’ Danger In CNX Misusing A Deposition In An Appeal Before The Board To ‘Punish’ An Environmental Advocate For Her Advocacy Against CNX

On May 22, the Environmental Hearing Board issued a ruling in an appeal of a DEP water supply contamination determination involving the CNX Gas Company that agreed with a Center for Coalfield Justice assertion there was “acute” danger in CNX misusing a deposition in the case to “punish” an environmental advocate for her advocacy against CNX. [EHB Docket No. 2024-114-W]

The case involved a July 26, 2024 appeal to the Board by James and Barbara Ullom in East Finley Township, Washington County over a determination by the Department of Environmental Protection that CNX NV110 shale gas well pad operations did not cause the diminution of the Ulloms’ water supply.

CNX served a subpoena on April 29, 2025 seeking to conduct a videotaped deposition of Jodi Borello, an employee of the Center for Coalfield Justice and a non-party to the appeal, and an individual originally identified as a non-expert witness by the Ulloms’ in the appeal.

On May 7, 2025, the Center for Coalfield Justice filed a motion for a protective order seeking either to quash the subpoena of Borello or place limits on her deposition.

Later that same day the Ulloms filed a response saying they were not expected to call Borello to testify.

DEP filed a response saying they were no longer seeking to depose Borello since she was removed from the Ulloms’ witness list.

The deposition is scheduled for May 29.

The Board said, the Center for Coalfield Justice contended “as a community organizer for its organization, Ms. Borello’s advocacy work often touches on CNX’s operations.”

“Additionally, Ms. Borello has experience with CNX’s operations on a personal basis.

“According to the motion, Ms. Borello lives adjacent to CNX’s Oak Springs [pipeline pigging] facility and provided testimony before the 43rd Statewide Investigating Grand Jury.”

[Editor's Note: The Borello family lives about 1,500 feet away from the Oak Springs pipeline pigging facility in South Franklin Township, Washington County that Jodi Borello said released natural gas and liquid chemicals three times a day, seven days a week for nearly 10 years. Read more here.

[Jodi Borello said the pigging facility was “close enough that whatever the substance that they're blowing out of it blows into my yard and I can see it, and we have 60 seconds to get in the house and I have thousands of videos.” Read more here.

[In December 2021, CNX Resources pleaded “no contest” to criminal charges brought by then Attorney General Shapiro to stop the practice. Read more here.

[Seven years ago people from more than 70 households began testifying to a Statewide Grand Jury about the impacts of the shale gas industry on their health, their lives and their communities. Read more here.

[Five years ago, the Statewide Grand Jury issued its report documenting these impacts in a way the jurors-- ordinary Pennsylvanians-- said, “provided us with a sound and detailed understanding of the realities of this industry and the problems associated with fracking in our Commonwealth.” Read more here.

[In February, the experiences of the Borello family and the medical issues they said they had from the releases from the pigging facility were used as a case study by the state Department of Health and Penn State Medical for teaching medical providers how to address medical conditions brought on by exposure to shale gas operations. Read more here.]

The Board ruling continued saying, “Of particular note, Ms. Borello and her family are [also] plaintiffs in ongoing litigation with CNX before the Allegheny County Court of Common Pleas over alleged nuisances caused by CNX’s Oak Springs operations.”

The Board said, “CCJ argues there is a strong potential for abuse and raises a concern that CNX will use Ms. Borello’s deposition here as an opportunity to glean information pertinent to her litigation in the Court of Common Pleas.”

The Board said, “It is CNX’s contention that Ms. Borello “injected herself into this matter,” [the appeal] contrary to the Ulloms’ assertion that they contacted her.” “CNX asserts that it should be allowed to inquire into Ms. Borello’s knowledge with regard to the Ulloms’ water loss claim and have the opportunity to test her veracity.”

The Board said, "According to the deposition testimony of Barbara Ullom, Ms. Borello helped her prepare a written timeline of the events relating to the claimed water loss and explained matters that Ms. Ullom did not understand.”

“We agree with CNX that it should be permitted to inquire as to her knowledge of the events surrounding this appeal and to test her veracity,” the Board said.

‘Punish Her For Her Advocacy’

The Board went on to say, “That being said, we do find merit to CCJ’s claim that there is a potential for misuse of Ms. Borello’s deposition, given her ongoing litigation with CNX in the Court of Common Pleas.

“CCJ articulates its concern as follows:

“[T]he danger here is not only that CNX will use Ms. Borello’s incidental interactions with the Ulloms as an opportunity to probe into her organizing activities and punish her for her advocacy. (emphasis added)

“An unbounded deposition provides CNX with an opportunity to conduct discovery regarding the pending civil suit in an environment beyond the supervision of the presiding court and without Ms. Borello’s counsel present.”

The Board said, “We agree that the danger is particularly acute here based on CNX’s request for a video deposition. (emphasis added)

“Given Ms. Borello’s status as a non-party, the only purpose we can see for conducting a video deposition of Ms. Borello is so that CNX can presumably use that same videotape at trial in Ms. Borello’s unrelated civil suit.”

Decision & Order

The Board said, “Here, the issue is the Department’s determination that CNX’s operations did not cause diminution to the Ulloms’ water supply. Matters pertaining to Ms. Borello’s and CNX’s ongoing litigation at the Court of Common Pleas are beyond the scope of discovery in this case.”

“In light of the restrictions we are placing on the scope of the inquiries CNX may pose to Ms. Borello, we believe it is appropriate to limit the length of her deposition.”

“Based on these timeframes and Ms. Borello’s role in this matter, we believe that it is appropriate to limit Ms. Borello’s deposition to 90 minutes.”

“In addition to ensuring that her deposition, as a non-party, is not unduly burdensome or disproportionate to her role in the case, limiting the length of the deposition will help to ensure that the questions do not veer into areas that are beyond the scope of this appeal.”

“Finally, we believe that CCJ has stated sufficient grounds for limiting Ms. Borello’s deposition to one that is recorded by a stenographer rather than a video deposition.”

“Ms. Borello may have an attorney present at the deposition.”

Click Here for a copy of the EHB opinion and order.

Visit EHB Docket No. 2024-114-W for copies of motions and other documents in this case.

Resource Links:

-- Natural Gas Pipeline Pigging Facility Malfunction Dec. 27 Released 1.1 Million Cubic Feet Of Natural Gas; Same Facility Plagued Community With Blowdowns 3 Times A Day, 7 Days A Week For Nearly 10 Years Until Criminal Charges Brought Against CNX [4.10.23]

-- On Feb. 13 Dept. Of Health, Penn State Project ECHO Held A Webinar To Educate Medical Professionals, Public On Exposures To Natural Gas Facility Pollution; Real Washington County CNX Facility Case Study Used [2.12.25]

-- 7 Years Ago, People From Over 70 Households Gave First-Hand Accounts Of How The PA Shale Gas Industry Impacted Their Health, Lives And Communities To A State Grand Jury Describing The ‘Sometimes Harsh Reality’ Of These Operations [3.31.25]

-- PublicSource.org - Jake Vasilias: Peering Into A Shale Gas Driller’s Pledge Of ‘Radical Transparency’ [CNX Resources] [5.16.25]

-- FracTracker Alliance: CNX Not-So-Radical Transparency Provides Incomplete Information, Heavily Downplays Dangers Of Shale Gas Development [5.2.25]

-- Gov. Shapiro, CNX Resources Announce New Shale Gas Well Pad Air Monitoring Initiative [5.1.25]

PA Oil & Gas Industry Public Notice Dashboards:

-- PA Oil & Gas Weekly Compliance Dashboard - May 17 to 23 -- Failure To Comply With Shale Well Plugging Order; 28 Months Without 3 Conventional Well Cleanups; 206 Abandoned Conventional Wells; Road Dumping Continues [PaEN]