DEP Alters Policy on Foul-Water Notifications
15 October 2012
By Don Hopey
The state Department of Environmental Protection has a new review
policy for water contamination cases related to Marcellus Shale
gas well operations that lets department administrators in
Harrisburg instead of field offices decide whether residential
water users should receive letters notifying them about problems.
The month-old policy hasn't stopped, held up or altered any
contaminated-water determination letters. And the DEP said in
response to questions that it would not result in delays to
homeowners about water contamination.
However, critics are concerned that the policy allows high-level
DEP officials in Harrisburg to decide not to issue, or delay
issuing, contamination determination letters recommended by a
field office. A decision not to make that determination could save
drilling companies millions of dollars in groundwater remediation,
water treatment or replacement costs, and lengthen the time it
takes to fix the problems.
Prior to the change in policy, DEP water quality specialists would
send samples to the state testing laboratory and review the
results with department geologists. Then, based on those results,
district offices would send contamination determination letters to
the affected residents or property owners.
The new policy, instituted in mid-September, requires DEP field
offices to instead send the contamination determinations to
Harrisburg for review by top administrators, up to and including
Scott Perry, deputy secretary of DEP's Office of Oil and Gas
Management, and DEP Secretary Michael Krancer. The administrators
then decide whether determination letters should be sent.
The policy was not publicly announced and was distributed in a
brief, internal DEP email on Sept. 14 from Mr. Perry to four
regional oil and gas field offices.
According to an email string obtained by the Post-Gazette, the
policy requires those offices to send all positive water
contamination reports to Harrisburg as a Major Action Advisory,
"prior to issuing any water supply impact determination letter."
The MAA designation means the matter goes to top administrators
A follow-up email from one of the regional offices asks whether
all DEP water quality test determinations, including those that
show no contamination, should be forwarded to Harrisburg or only
those showing contamination related to drilling operations.
The email response from Mr. Perry is, "I think it should be
limited to positive determinations. If a negative determination
may generate media interest please let me know, but you won't need
to go through an MAA."
DEP sources, unwilling to speak on the record because of concerns
about job security, say some DEP district office staffers are
concerned about the policy, which would allow headquarters'
officials to second guess their test-based contamination
A former DEP official also said the policy baffles him.
"The MAA used to be an advisory process but now it's an approval
process," said George Jugovic Jr., chief executive officer of
Citizens for Pennsylvania's Future, a statewide environmental
advocacy group. He was a DEP regional director during the
administration of Democratic Gov. Ed Rendell but resigned in
September 2011 at the request of officials in the administration
of Gov. Tom Corbett, a Republican.
"Harrisburg is making a decision on the notification before action
is taken," he said. "But it's supposed to be a scientific decision
based on water test results and the law. What [science] expertise
in that does Krancer have?"
In a written response to questions, DEP spokesman Kevin Sunday
said the department made the policy change as a result of a
"recent" Environmental Hearing Board ruling that found that a
department determination letter is an appealable action that
deserves top-level review. He also said the "DEP takes very strong
action in cases where oil and gas drilling causes methane
The ruling Mr. Sunday referred to occurred in May and said that a
Washington County resident, Loren Kiskadden of Amwell, could
appeal a negative DEP water testing determination, which he
contended was inaccurate and incomplete.
In a follow-up response, Mr. Sunday said determination letters
that don't show contamination as well as those that do will go
through the MAA process. That contradicts the email exchange
between Mr. Perry and Alan Eichler, program manager of DEP's oil
and gas district office in Pittsburgh.
John Hanger, DEP secretary during the Rendell administration, said
the DEP bears the burden of justifying why such a change was made
to a science-based process that reported water test results
"honestly and independently and professionally."
"The process wasn't broken. There was no abuse. The field staff is
professional and careful and does a good job," Mr. Hanger said.
"These determination letters should be based on good science. You
can be concerned about the changes but there's no cases yet to
indicate a problem.
"However if we get down the road and see decisions that are
different than the staff recommendations, that could be
The latest policy change follows the DEP's attempt in March 2011
to require that all field enforcement actions, also known as
"Notices of Violations," or "NOVs," involving Marcellus Shale gas
drilling operations be pre-approved by administrators in
Harrisburg. Staff in DEP field offices grumbled about the change
as did environmental groups and businesses, causing the department
to publicly roll back the policy after two months.
The number of water contamination determination letters issued by
the DEP each year fluctuates depending on how many cases of
private water supply contamination are reported and investigated
and how widespread the contamination is. According to the DEP,
water contamination letters related to Marcellus drilling and
other oil and gas operations were sent to 57 individuals in 2010,
27 in 2011 and 19 so far this year.
According to Mr. Sunday, that data shows the industry's
performance and compliance have improved, due to DEP enforcement
actions and new regulations mandating stronger casing and
cementing around wells.
In September, before the change in policy was announced, Range
Resources, one of the state's largest drilling companies, had
several meetings with DEP to contest water contamination letters
sent to three property owners living near the company's Harman
Lewis well in Lycoming County.
Range maintains its well is not linked to those water problems,
which occurred from February through the summer, and the letters
of determination delivered in early September did not allege a
The DEP determination letters do say the residential water
supplies are contaminated, probably due to methane migration from
Marcellus Shale gas drilling, but didn't name a specific source or
company responsible for the contamination.
"When we saw the [contamination] letters we met with the DEP on
multiple occasions. That's just part of the process," said Matt
Pitzarella, a Range spokesman. adding that the department has not
issued a violation notice or determined that Range caused the well
contamination in the area.
"We've conducted our own investigation, brought in the best
experts, and I can say without a shadow of a doubt that our gas
well operations have nothing to do with this case."
According to the DEP, Range was cited in February 2012 for
defective cement in casings at the well. The casing and cement
which is located underground around the drill pipe is designed to
act as a seal to prevent gas contamination of shallow groundwater.
Its investigation is ongoing.
Jim Finkler who said his water began bubbling with methane in
February and continued through this spring and summer, said he has
been working with the DEP on the problem and was happy to receive
the determination letter.
"I don't like the idea of someone in Harrisburg, who's not an
expert, intervening one bit," said Mr. Finkler, who lives about a
half mile from the Range well. He said he has not received
replacement water from Range, although the company did install a
vent on his well cap.
"The letter should come from the science end of things, and that's
where the determination should be made."
Don Hopey: firstname.lastname@example.org or 412-263-1983.