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.

Pa. eases water standard update after industry complaint Corbett’s DEP withdraws 4 pollutants from regulatory plan

In the face of industry opposition, Pennsylvania officials have backed away from proposed standards that would limit certain kinds pollution that drilling and fracking operators can discharge into the Commonwealth’s waters.

Specifically, the agency has removed proposed standards for molybdenum, sulfates, chlorides, and 1-4 dioxane, because the restrictions “raised the concern of the business community,” according to a recent DEP report.  The constituents were originally included in proposed updates to Chapter 93, which regulates water quality under the Clean Streams Law. The revised proposal is now pending approval by the Department of Environmental Protection’s Environmental Quality Board.

The most acutely toxic of the chemicals excluded from the proposed standards is 1-4 dioxane, a manufacturing solvent that can cause illnesses ranging from cancer to organ failure, and for which there is no current water quality standard in Pennsylvania.  Chlorides and sulfates, also eliminated from the revised regs, are less acutely toxic than dioxane but can cause ecological and health problems, especially when discharged in quantity over time in water bodies already stressed by high levels. Chlorides and sulfates are principal waste components of the shale gas and mining industries. They are measured as Total Dissolved Solids (TDS), or, more simply, things that dissolve in water. Water with high TDS, often deceptively clear, can wreak havoc on fresh water systems. Chlorides can also be a flag for other possible pollution that comes deep in the ground with flowback, including undisclosed mixtures of chemical solutions and naturally occurring metals and hydrocarbons that can foul fresh water.

Oil and gas drilling and fracking operators were joined by representatives from the electric generation, coal, steel, pharmaceuticals and metallurgy interests in opposing the original Chapter 93 updates drafted by regulatory officials using current information from the field and national guidelines. Trade associations maintained the proposed restrictions on chlorides and other chemicals “were not rooted in clear scientific evidence and failed to take the economic impact of the regulated community into account,” according to a DEP report.

Dunkard Creek fish kill

The proposal to develop standards for chlorides and the other constituents was due partly to problems that have cropped up since shale gas development took off in Pennsylvania five years ago. TDS levels spiked in the Monongahela and Allegheny river systems, when drilling waste was commonly disposed in treatment plants that were unequipped to handle it. In October, 2009, TDS levels in the Monongahela exceeded water quality standards at all of the 17 Potable Water Supply (PWS) intakes from the border with West Virginia to Pittsburgh, prompting an advisory to use bottled water that affected 325,000 people. That same year, Dunkard Creek, one of the most prolific freshwater sport fisheries in the region and a tributary to the Mon, was wiped out by TDS pollution. The 43 mile creek along Pennsylvania’s rural border with West Virginia was teeming with more than 161 aquatic species ranging from freshwater mussels to 3-foot muskellunge. By September, 2009, almost everything in Dunkard Creek was dead, with the exception of an invasive microscopic alga—common in Texas estuaries—that had somehow migrated into the creek and thrived in its suddenly brackish water. The disaster was attributed to multiple factors, including discharges from mining operations, water draw downs by the drilling industry which needed large quantities of fresh water to support fracking operations, illegal dumping, and the introduction of invasive algae.

The story of Dunkard Creek and the Mon (chronicled in Under the Surface) represents a broader concern about the health of Pennsylvania waterways that lead to revisions in the Pa. Clean Streams law under governor Ed Rendell and his DEP secretary John Hanger in 2010. The Chapter 95 revision (not to be confused with the Chapter 93 revisions now on the table) restricts new treatment plants from accepting high TDS waste from drill operators, although it allows the practice to continue at old plants. Environmental watchdog groups are concerned about  plants that continue to discharge high levels of chlorides into the watershed, including Waste Treatment Corp., in Warren County, Hart Resources Technologies, in Indiana County, and two plants run by Pa. Brine, one in Venango County and one in Indiana County. The plants are discharging effluent with chloride concentrations more than two times greater than seawater, according to Myron Arnowitt, Pennsylvania state director with Clean Water Action.

A team of academicians with Resources for the Future lead by Sheila M. Olmstead examined the chloride issue in Pennsylvania waterways, with results published in the Proceedings of the National Academy of Sciences early this year.  The team found (among other things) that chloride levels tended to be high downstream from treatment plants, and “surface water disposal of treated waste from shale gas wells represents a potentially important water quality burden.” In addition to chloride, “many other wastewater constituents could potentially reach surface water, although available data on their concentrations is limited.” (Michael Levi, who writes for the Council on Foreign Relation's Energy Security and Climate blog, takes a broader look at the study here.)

Michael Krancer

The Chapter 93 revisions now under consideration would have provided much broader limits on untreated disposal of chlorides. The removal of the proposed standards for chloride and other pollution is consistent with the platform of Governor Tom Corbett, Rendell’s successor, who campaigned openly to oppose impediments to the industry’s expansion in Pennsylvania. The decision to ease the Chapter 93 rules came under Corbett’s DEP chief, Michael Krancer, a former and future industry attorney. This month, Krancer left the DEP to rejoin Blank Rome, effective April 15, where he will chair the energy, petrochemical, and natural resources practice. The firm describes itself as “uniquely positioned to counsel and represent shale oil and gas exploration, production, and mid-stream companies regarding all of their business needs.” During his time as DEP secretary, Krancer did little to dispel the notion held by his critics that he was too accommodating to drilling interests.

The proposal to include and then withdraw the four pollutants are part of a larger package of water standards under consideration with Chapter 93, which is periodically updated to reflect technological and cultural changes along with evolving risks to water sheds.

Arnowitt said he believes there is a chance that the federal EPA may encourage DEP to include the standards for the pollutants in its final rule. “We suspect that the DEP and the EPA are having conversations about what the finished version is going to look like,” he said. “It’s possible the DEP will change course (due to) the fact that they have not officially put it forward.”

Dimock water problems continue after four-plus years Results of recent cases in fracking zone not yet released

Crews use a service rig in Dimock to diagnose problems
PHOTO VERA SGROGGINS 

DIMOCK, Pa. -- More than four years after the explosion of a residential water well called attention to the problem, Pennsylvania environmental officials are still trying to solve water pollution in this small town that has become infamous for shale gas development.

Recent cases involve two homes in a gas field where the Pennsylvania Department of Environmental Protection has banned drilling of new wells in the wake of chronic water pollution tracked to nearby operations of Cabot Oil & Gas. Cabot crews continue to operate a service rig between gas wells and water wells to diagnose problems in an area where the DEP has found dangerous levels of methane flowing into residential water wells near the junction of Carter Road and State Route 3023.

Colleen Connolly, a spokeswoman for the Department of Environmental Protection, said this week that the agency has not determined when the latest round of testing will be released.

Cabot has been cited in the past for various violations that the DEP has linked to problems. Wells providing water to several dozen homes have been taken off line or fitted with filtration equipment to remove gas and other pollution since the water well of Dimock resident Norma Fiorentino exploded on New Year’s Day, 2009.

Although drilling has been banned in a nine-square mile area where problems are the worst, the DEP recently allowed fracking to stimulate production of exisiting wells. Two months ago, DEP officials responded to complaints that drinking water at several homes became turbid after crews fracked nearby natural gas wells.  Subsequent tests showed two water wells serving homes along State Route 3023 contained explosive levels of methane, according to information from the DEP.  Cabot Spokesman George Stark did not return calls for comment. In the past, he has said the problem may be linked to a frozen vent.

In addition to methane, the DEP is testing water samples taken from affected homes for various other contaminants, including metals and chlorides (listed below), which are markers for pollution from gas drilling and production.

With the recent announcement that DEP Chief Michael Krancer is stepping down, the problem will be passed on to the third administration. In 2010, John Hanger, who served as Governor Ed Rendell’s top environmental official, found that shale gas operations had ruined the aquifer serving homes in and around Carter Road. As a remedy, Hanger ordered Cabot to build an $11 million pipeline to restore fresh water to affected homes. After the order, Cabot denied that it was responsible for pollution, and the pipeline order was eventually defeated amid political opposition when Tom Corbett, a drilling supporter, was elected governor.  Last August, Cabot reached an undisclosed settlement with 32 of 36 Dimock families suing for damages related to pollution of water wells.  Other lawsuits are pending.

In an investigation last year, the federal Environmental Protection Agency found elevated levels of arsenic, barium, manganese, or methane, in five of 64 water wells – roughly 8 percent. It concluded that the concentrations could pose health risks, but those risks were mitigated by treatment systems drilling companies had installed or planned for the homes. The federal Agency for Toxic Substances and Disease Registry is now following up with an evaluation of it’s own.

Early this year, the DEP came under fire about how it handles testing at sites suspected of pollution from gas development. In January, Pennsylvania Auditor General Eugene DePasquale announced a review of the agency’s regulation, testing and enforcement program. The intention of the probe, according to a letter from DePasquale to Krancer, 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."

The recurring problem of pollution related to shale gas and related public relations issues will be inherited by Krancer’s successor.

While methane migration is not unique to Dimcok, the rural community has been divided by the issue, and is featured as a case study and focal point of the anti-fracking movement just across the state border in New York, where fracking is on hold pending a more extensive review of environmental and health issues.

What the DEP is testing for in Dimock water wells:

MANGANESE
BARIUM
IRON
STRONTIUM
TDS
CHLORIDE
Hardness
pH
SPC
ALKALINITY
BROMIDE
SUSP SOLID
SELENIUM
ARSENIC
SULFATE
MAGNESIUM
ALUMINUM
CALCIUM
POTASSIUM
LITHIUM
SODIUM
ZINC
TURBIDITY
METHANE
ETHANE
PROPANE

Source: DEP 

After 5 years, water remains focus of drilling debate Transparency issues still hamper knowledge base

When Marcellus production ramped up in Pennsylvania five years ago, questions arose about the volume, contents, and endpoint of the waste it produced and its impact on water supplies.

If we knew then, what we know now….

We still wouldn’t have known much. Despite advances in public awareness of the risks and rewards of drilling, what a land play looks like, the sums of money at stake, the role of shale gas in domestic energy production, and technical aspects of high volume hydraulic fracturing, precisely tracking the shale gas waste stream and determining its impact on water supplies remains a politically complicated task. And it’s a task hampered by an inconclusive, and often conflicting body of science and policy initiatives.

So the work continues. Last week, news on several fronts demonstrated both the level of commitment to assess and address problems, and the amount of work still to be done by scientists and policy makers. Here’s a summary:

BROMIDES IN THE WATERSHED: High concentrations of bromides, one of the many constituents of drilling waste, are often a signal of larger water quality problems related to Total Dissolved Solids (TDS), a unit that generically quantifies concentrations of all soluble material in a given water sample. These include various constituents of drilling waste, including brines and metals.

With the onset of the Pennsylvania Shale Gas Boom from 2008 through 2010, TDS levels spiked in major Pennsylvania watersheds, including the Monongahela and Allegheny river systems. The spikes coincided with the disposal of drilling waste to municipal treatment plants that were not equipped to treat it. After TDS levels hit crises levels in the Mon, the Pennsylvania DEP drafted new rules, under Chapter 95 of Pennsylvania’s Clean Streams Laws, to discourage the disposal of drilling waste at treatment plants by setting TDS ceilings for incoming shipments. But many plants ended up grandfathered into the old standard, and the industry found other ways around the new rule, and the problem persisted.(More on tha here) After repeated calls for the industry to voluntarily stop taking drilling waste to plants ill equipped to handle it, TDS levels have recently dropped dramatically in the Mon River. (See Friday's Associated Press report here.) But they remain a problem in the Alleghany. See the Trib Live report here. The picture is complicated by other factors – including mine drainage -- that influence TDS pollution.

EPA STUDY: With the presidential election decided and the future leadership and direction of the EPA no longer an uncertainty, a leading agency official provided an update Friday on a critical federal study to assess the impact of fracking on groundwater. EPA Science Advisor Glenn Paulson reported that a progress report on the study would be released on schedule by the end of this year (within seven weeks). The final study will be submitted for peer review in 2014.

The EPA endeavor includes analysis of data from 21 research projects in several drilling states to determine if and how the country’s natural gas boom and fracking in particular is affecting drinking water. Paulson gave the update at the University of Pittsburgh’s annual conference on the health effects of shale drilling. Trib Live’s Timothy Puko reported that Paulson told a crowd of about 150 people that the EPA effort “has the promise to be pretty close to definitive on the drinking water/fracturing issue ... as anything else that’s going on.”

AP’s Kevin Begos also covered the conference, where Paulson built high expectations for the study’s significance. Begos reports:

Paulson said the study of fracking and drinking water “is one of the most aggressive public outreach programs in EPA history.” He said the progress report will show the “range and depth” of what EPA is looking at, and will be open to public comment.

“It will really be a lot for experts to chew on in their particular fields,” Paulson said, noting that EPA is reaching out to geologists, academic experts, the industry, environmental groups, and even Indian tribes.

The EPA study was commissioned in 2010 by members of Congress, who challenged the industry’s exemption from the Safe Drinking Water Act. The exemption, known as the Halliburton Loophole, was granted under the Bush/Cheney administration to help encourage shale gas development.

While the EPA”s work is reportedly progressing on schedule, the agency may not be able to complete its wish list of objectives, according to Puko’s report. Specifically, Paulson told the Pittsburgh audience that officials have been unable to get industry cooperation for access to well fields in Washington County or other areas to conduct a series of controlled tests to gather localized water quality data before and after drilling.

DEP TESTING PROTOCOL: Earlier this month, Pennsylvania State Rep. Jesse White called on state and local authorities to investigate the DEP for fraud and misconduct – charges stemming from allegations that the agency manipulated water quality data in reports to residents in drilling districts.

The DEP has a long-standing policy of releasing results that are filtered through agency officials rather than a complete set of raw data, according to agency Secretary Michael Krancer. Officials have defended this practice as a tool to screen relevant data from noise.

White sees the practice as an easy and convenient tool to manipulate data. He cited an example stemming from testimony of a state official in a lawsuit brought by homeowners against Range Resources and the DEP. DEP Bureau of Laboratories technical director Taru Upadhyay testified that agency employees use a ‘Suite Code’ that limits information coming back from the lab to the field office, and ultimately to the property owner. For example,. Suite Code 942 reports results for only eight of 24 metals in the test: barium, calcium, iron, potassium, magnesium, manganese, sodium and strontium. It doesn’t report results for silver, aluminum, beryllium, cadium, cobalt, chromium, copper, nickel, silicon, lithium, molybdenum, tin, titanium, vandium, zinc and boron.

Authorities defend the practice as a long-standing and sound method to filter noise from relevant data. Although metals excluded from the report might be byproducts of drilling, the DEP does not consider them to be prevalent and typical markers of a drilling-related problem. According to Krancer, “Professional staff, trained in evaluating water complaints, utilize the relevant data and information to inform their conclusions. Although other results are generated by the lab tests, such results would not contribute to answering the question at hand--determining whether there is a connection between the gas well activities and the water supply.

Critics argue that the fields blocked by the suite code are useful indicators of drilling contamination and other problems. Moreover, homeowners have a right to all results of water quality tests that can flag health risks.

Looking for a non-partisan voice in this, I will offer the reflections of John Hanger. Hanger is the former DEP Secretary who often comes to the defense of shale gas development and the DEP’s handling of regulations. But not this time. He has called on the agency to release comprehensive test results as a matter of policy. He told Rachel Morgan of Time On Line:

My view is that the (DEP) should release all the test results of any substances found,” he said. “It’s just better to release all the substances to the owner of where the water was taken, whether or not the pollutant of substances (found) are relevant to an investigatory purpose. It would concern me if the department found a high (concentration) of a substance that posed a threat to the health of the owner and would not release it.

The questions of bromide levels in rivers, the status of the EPA study, and the controversy over the DEP testing protocol represent just a few of the dynamics in the matrix of developing science/policy/politics that will shape long-term viability and economics of shale gas development. It’s been a long and grueling process. Don’t expect it to end anytime soon.