DEP Alters Policy on Foul-Water Notifications

Pittsburgh Post-Gazette
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 for review.

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 determinations.

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 migration."

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 troubling."

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 link.

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: or 412-263-1983.