Weak Records Cited on Pa. Shale Pollution
3 April 2014
By Don Hopey
Even when pollution discharges from shale gas well pads and
impoundments contaminate private water supplies, those violations
often go unrecorded or publicly reported by state environmental
regulators, according to documents filed in the Pennsylvania
Superior Court case challenging the constitutionality of the
state's oil and gas law, Act 13.
According to a 40-page brief, filed with the court in Harrisburg,
it is the "practice" of state Department of Environmental
Protection regulators not to issue a violation notice, fines or
formal determinations of contamination where shale gas development
companies reach private settlements with water well owners.
That DEP "practice," which began during the Rendell administration
and continues to the present day, makes it impossible, according
to the brief, for the public to know where and when groundwater,
wells and springs are contaminated, because there is no publicly
"For us, this is all about transparency and the ability to protect
water supplies," said John Smith, one of four attorneys
representing municipalities that challenged the constitutionality
of the state's 2012 oil and gas law. "The DEP must provide
citizens with information about the potential harm coming their
way. If it doesn't record and make available the violations
records then it is denying the public accurate information, which
The state Supreme Court ruled in December that the primary
provisions of Act 13 that prevented municipalities from having a
say in the placement of wells, pipelines and compressor stations
were unconstitutional, but remanded other sections of the law to
the Superior Court for reconsideration.
The brief filed with the court Tuesday argues that a provision of
Act 13 that requires the DEP to notify public water systems but
not private water well users about drilling industry spills is
unconstitutional because it is a "special law" that violates the
state's equal protection principals for the sole benefit of the
oil and gas industry," and "bears no rational basis to any
legitimate public interest."
Among its 16 attached exhibits, the brief included 12 pages of
sworn deposition testimony by Alan Eichler, DEP oil and gas
program manager, who said the department "didn't typically issue
Notices of Violation," or assess fines or issued determination
letters when water contamination complaints were privately
settled. And as a result the public has no way to know if, when or
where private water supplies might be contaminated or at risk of
The brief used the deposition testimony to illustrate that private
water supply users faced health risks without a legal requirement
that DEP notify private water supply users of contamination
affecting their water supplies. More than 3 million Pennsylvania
residents rely on private well water for drinking and everyday
use, according U.S. Census Bureau statistics cited in the brief.
Mr. Eichler was asked, during his deposition Jan. 29 for a water
contamination case involving Range Resources' Yeager drilling
operation in Amwell, if an individual could find out if his
neighbor's well water had been contaminated if his neighbor and
the shale gas drilling company had settled the complaint.
According to the deposition transcript from that case, now before
the state Environmental Hearing Board, Mr. Eichler said, "Well ...
no, when I think about what information we have on file and what
(the plaintiff neighbor) would have access to it's not clear to me
how he might become aware of a problem at the Yeager water
The brief also notes, that since the DEP is supposed to consider a
firm's violation history when issuing subsequent permits, a full
picture of a firm's past performance is unavailable to decision
makers and the public in such settlement cases.
Asked if DEP considered the water contamination complaint against
Range in deciding whether to approve subsequent drilling permits
at the Yeager farm well pad site, according to the deposition
transcript, Mr. Eichler said that it did not.
Phone messages requesting comment from Mr. Eichler on Wednesday
afternoon were not returned.
But on Tuesday evening, the DEP's legal department sent the
Post-Gazette a 10-page "Errata Sheet" that makes 64
"clarifications and corrections" to the sworn transcript record of
the first two days of his three-day deposition, Jan. 29-31.
The document, dated March 14 and signed by Mr. Eichler, changes
his testimony that DEP records about water contamination aren't
publicly available. In the amended record, Mr. Eichler now states
that the private settlement agreement between Range and the owner
of the contaminated water supply on the Yeager farm is "in the
permit file that is open to the public," along with a document
assessing Range a penalty for contaminating the springs.
Mr. Smith said he will file a motion to strike the testimony
changes because "a deposition isn't a take-home exam."
A DEP spokeswoman, responding to a request for comment, issued an
email statement that said the department records all water quality
complaints related to natural gas drilling operations.
"While the complaint is under investigation, the information is
kept confidential and DEP does not disclose the information
according to the Right to Know Law," the email sent by Lisa
Kasianowitz, a DEP spokeswoman, stated. "When a determination is
made, DEP receives a copy of the determination letter. Those
letters are public record."
But, like the Yeager case, not all contamination determinations
are formalized by a letter. Responding to another question, Mr.
Eichler said in the deposition that in the Yeager case the DEP
didn't issue a Notice of Violation or assess a fine, or issue a
determination letter that he could remember. But he said the DEP
could keep track of such cases on its "Complaint Tracking System."
Those CTS records are not available to the public, he said.
In response to follow-up questions, the DEP said no contamination
determination letters are available on the department's "eFacts"
Web page, where permit and enforcement records are available to
the public but can be found by searching paper files at DEP
regional offices. While those determination letters are public
record, according to the DEP, the names of the complainants are
redacted and all of the materials, records and investigation
documents and reports are confidential.
"Non-criminal investigative records are not required to be
produced to the public even upon conclusion of an investigation,
according to the (state) Right to Know Law," Morgan Wagner, a DEP
spokeswoman wrote in an email response. "Once it is an
investigative record, it is always an investigative record."
According to the DEP, there have been 98 private water supplies
contaminated by shale gas drilling in Pennsylvania from 2008
Don Hopey: email@example.com or 412-263-1983.
Read more: http://www.post-gazette.com/local/marcellusshale/2014/04/03/Weak-records-cited-on-Pa-shale-pollution/stories/201404030183#ixzz2xrmKAMkF