Thursday, March 6, 2014

Coming soon: Audit to grade DEP’s oversight of drillers Water testing protocol remains center of transparency flap

Is the Pennsylvania Department of Environmental Protection a lion or a lamb when it comes to regulating and policing shale gas operations?

One qualified and independent source will soon provide an answer. Im May, the office of Auditor General Eugene DePasquale is due to release a detailed investigation into the practice and protocol of the state's regulation of the drilling industry, a source from his office told me this week.

DePasquale announced the review in January, 2013, in the wake of a controversy over whether state investigators obscure or alter the outcome of investigations into drilling’s impact on water supplies by disclosing an incomplete suite of chemical tests. The intention of the probe, according to a letter from DePasquale, is to determine the "adequacy and effectiveness of DEP's monitoring of water quality as potentially impacted by shale gas development activities, including but not limited to systems and procedures for testing, screening, reporting and response to adverse impact such as contamination."

In other words, the probe will get to a question at the crux of the fracking debate: whether and to what degree the DEP is safeguarding water supplies from drilling.

The DEP’s testing protocol for wells potentially affected by drilling operations entered the public spotlight with a case by Loren Kiskadden seeking damages for pollution against the agency and Range Resources. The case, now pending in the Court of Common Pleas, claims that the department withheld full results of tests of Kiskadden’s water in June 2011 and January 2012. The ensuing “suite code” controversy came to light in September 2012 with the deposition of Taru Upadhyay, the DEP Bureau of Laboratories technical director, at a Environmental Board Hearing. Upadhyay testified that results for some metals, including copper, nickel, zinc and titanium, were not included in Kiskadden’s final report. This was not unusual, she said, because the lab only verifies concentrations of compounds ordered by the investigator from the oil and gas division, even if the samples were tested for a broader range.

DEP officials have since confirmed that the testing protocol for markers of contamination from Marcellus Shale production – including what and how many chemicals  are included in the final analysis -- falls to the discretion of individual investigators because they are best able to judge what chemicals are relevant to the investigation.

Watchdog agencies have characterized the DEP’s approach as random, incomplete, and a violation of public trust. Steve Hvozdovich, Marcellus Shale Policy Associate for Clean Water Action, said residents and watchdog agencies took it on faith that the department was following accepted protocol outlined by the federal Environmental Protection Agency in Method 200.7 – which requires testing for at least 24 different chemicals.

“This comes down to a lack of trust and a lack of transparency,” he said. “Nobody outside of the DEP offices knew this – that they were not quality controlling and quality assuring for the full 24 chemicals. It took a law-suit to bring that out … We need to have comprehensive testing, especially in a case where it originates from a residential complaint.”

Clean Water Action was one of a dozen agencies that signed a letter to the DEP on January 25, 2013 with concerns that the agency's testing methods “lack transparency; result in the withholding of vital data from affected households and the public; force residents to potentially undergo prolonged exposure to contaminants that impact health; and delay action necessary to correct pollution of drinking water supplies.”

But concerns of environmental activists are not shared by all. The DEP’s approach to regulation and enforcement under drilling supporter Governor Tom Corbett has a lot to do with the boss’s political values of how much government should be overseeing private business. The oil and gas industry – provider of cheap abundant energy that we all demand – has been the long-time beneficiary of regulatory passes. For starters, the entire problem of determining what, how, and if chemicals affect water is prodigiously complicated by the fact that the industry is exempt from federal laws that require disclosure and regulations of chemicals injected into the ground, and also laws governing hazardous waste coming out. Corbett, who won election in 2010 partially on a platform to limit state regulations on the industry, has been praised by industry supporters who defend the DEP oversight as sufficient and responsible.

No matter what it says, DePasquale’s report, coming in May, will likely be controversial due to the political volatility of the subject matter. In addition to the water-testing issue, the probe will “determine the adequacy and effectiveness of DEP’s monitoring of the handling, treatment and disposal of waste connected with shale gas development activity, including but not limited to systems and procedures for testing, tracking, treating, disposal, data collection and analysis, reuse and recycling, reporting, and response to adverse impact such as contamination.”

It’s sure to add a new wrinkle to the shale gas debate as the election year heats up, beginning with primaries among gubernatorial candidates who will likely have something to say about it. Those include John Hanger, a Democrat, who served as DEP Secretary under the Ed Rendell administration. Hanger is a gas supporter, but he is also in the pro-regulatory camp. As DEP chief he has been critical of – and sometimes at odds with -- certain companies he characterized as rogues. He has called on the DEP to reform its protocol to ensure a comprehensive data set of water test results gets to people who are potentially affected by drilling. The degree Hanger's message resonates with primary voters will be one of many tests of how much weight regulatory reform carries in the larger political equation.

7 comments:

  1. Thanks for writing about this, Tom.

    I call it the Suite Code 942 Scandal.
    I've blogged about it,
    but without your class and attention to detail :)

    One interesting thing I noticed about this case--

    I knew nothing about it from the mainstream press,
    but suddenly there was a huge EID response.
    Jesse White is the PA state rep in the area,
    and Jesse went to bat for Kiskadden before the PA-DEP.

    Suddenly people are driving by his house and posting video to EID. They even published a hit piece, calling Kiskadden "Jesse's Junkyard Plaintiff". (there are several abandoned autos on the property, and EID was claiming they were the source of the contamination).

    Anyway, I knew this story was hot just because of the massive PR response to story. Then we leaned about Suite Code 942. EID even published aerial photos over the Kiskadden's house. There's been illness in the household, and the EID bullies are going after the victims, as they usually do.

    The other super interesting and noteworthy footnoteabout this case is that when the attorneys for the plaintiff during discovery asked Range for the list of chemicals in their fracking fluid, Range admitted they didn't know.

    Say what? No, it's true! Range Resources couldn't respond to the court's demand for the list of chemicals, because Range Resources does not know. The purchase pre-made chemical mixtures which formulated by well service companies like Halliburton.

    Blogger Dory Hippauf wrote about this in a series called "Don't Know Frack".

    My friend Russell Donnelly calls it "A mystery going in down the hole, and a mystery coming out". He has an amazing theory about fracking chemicals. I've been checking it out.

    Keep in mind that Halliburton has a side business: waste disposal. Let those facts mix around in your brain for a while...

    1) Chemicals are secret, even from the drillers. Only Hallburton knows.
    2) Exemption from the Clean Water Act, engineered by the ex-CEO of Halliburton Dick Cheney.
    3) Halliburton is also in the waste disposal business.

    I have a ton more info on this story...
    It's one of the most horrifying and untold stories of fracking.

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    1. Thanks for your thoughts, Bill. Yes, White drew a lot of fire when he stepped in. The EID response to Kiskadden is interesting.

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  2. Interesting post. I should have become a lawyer. All the money is in muddying the water and parsing language that defines muddiness. In this case, mud is "chemicals of concern."

    Subsurface investigations are pretty simple in practice. What makes it difficult and possible opaque to the casual viewer, are legal issues behind environmental data collection procedures and analysis.

    An investigation plan is typically written by a environmental consulting firm working for the responsible party. A regulatory agency reviews the plan and approves it. A regulator may even do its own investigation, either with in house staff or a consultant of its own, but not too often anymore. States are cutting budgets. I believe Pennsylvania allows for voluntary environmental investigation and remediation, which puts the onus more onto a potentially responsible party and less involvement by the State.

    If the State approves the investigation plan and the subsurface investigation is done according to plan, one would think there isn't much room for argument or uncertainty in the results.

    The problem is in the answer and how one party or another feels about the answer. If one party doesn't like the answer (results of the investigation), they may fight tooth and nail to render the subsurface investigation invalid. Some steps in the investigation commonly attacked are: background vs current condition and sampling and analysis quality assurance and quality control (QA/QC).

    If Pennsylvania didn't require background sampling before drilling, a german shepard lawyer and its expert witness may confuse the issue. For sampling and analysis QA/QC, a rottweiler lawyer and its expert witness could attack the quality somewhere along the sample chain of custody. For example, field notes thoroughness could set off a pitbull lawyer to argue that this specific quality of work to be emblematic of the entire investigation, good or bad (usually bad).




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  3. It seems to me there are three issues here:

    1) Did the DEP follow the protocol of the EPA's Method 200.7, which requires testing for at least 24 different chemicals?

    2) To what extent did the DEP withhold test results from local residents?

    3) Given the uncertainty about exactly what substances were injected into gas wells in the region, even if the EPA's protocol were followed and the results were fully reported to the public, would that be sufficient? Or should tests for additional substances be added to the protocol on an individual basis depending on exactly what substances were used in nearby gas wells at each site in question?

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    1. You hit on something critical. It's very hard, if not impossible, to connect the dots of pollution and potential source when the chemicals used at the potential source are undisclosed and therefore unverifiable. Technically, the industry should have to comply with an investigation, but in practice compliance is often slow and imperfect, with the industry availing itself of legal inertia and roadblocks. See “Heitsman Spill pp 155-159 in Under the Surface.

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  4. It's important for people to understand that the DEP's primary role, regardless of what the agencies name implies, is not to protect the environment, but merely to control the rate of pollution and degradation to the environment - but not the amount of pollution and degradation - and to ensure that O&G permits are expeditiously approved. The state has called upon the DEP to "partner with the O&G industry to oversee this industrial development". Common sense dictates that it would not be in the interest of the DEP to "regulate" their "partners". On the contrary, it is in the DEP's best interest to run interference and provide regulatory cover for the O&G operators.

    1. There is a well documented "revolving door" between the DEP and the O&G industry. That's the "better paying carrot" the industry tangles for state regulators who "co-operate".

    2. The clear "lack of political will" on the part of the state's executive branch to impede this development, or make it more costly, even if it means running the risk of "necessary sacrifices and unintended consequences".

    3. The O&G industry's financial contributions to the state's regulatory agencies in the form of "permit fees", AND to the legislature under the guise of outrageously generous and disproportionate "campaign contributions".

    The degree of half-truths and non-transparency are a clear indication that the DEP is in fact, the regulatory "fox guarding the hen house" for the O&G industry, hoping that no one will notice the "carnage".

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