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White: Investigation Needed Into DEP Over 'Deceptive' Marcellus Shale Testing Practices

Testimony by a Department of Environmental Protection lab chief reveals the possibility of intentionally undisclosed water test results associated with Marcellus Shale drilling—which could cause potential health implications.

State Rep. Jesse White today called for state and federal law enforcement agencies to investigate the Pennsylvania Department of Environmental Protection for alleged misconduct and fraud revealed by sworn testimony given by a high-ranking DEP official.

White said he received a letter and corresponding documents highlighting the sworn testimony of DEP Bureau of Laboratories Technical Director Taru Upadhyay, who was deposed in a lawsuit alleging nearby natural gas drilling operations contaminated drinking water supplies in Washington County, causing serious health issues.

In the deposition, White indicated that Upadhyay said that the DEP was aware of water impacts from Marcellus Shale drilling, but no notices of violation were filed—what the lawmaker said was a violation of the state’s Oil & Gas Act.

White said more of a concern was that the deposition "revealed that the DEP developed a specialized computer-code system to manipulate the test results for residents whose water was tested by the DEP over concerns of adverse effects from gas drilling operations."

According to the transcripts, which have been filed as exhibits in a related lawsuit in Washington County Court of Common Pleas (Haney et al. v. Range Resources et al., Case No. 2012-3534), the DEP lab would conduct water tests using an EPA-approved standard, but the DEP employee who requested the testing would use a specially designed ‘Suite Code’ that  limits the information coming back from the DEP lab to the DEP field office, and ultimately to the property owner.

"The code in question, Suite Code 942, was used to test for water contamination associated with Marcellus Shale drilling activities, yet specifically screens out results for substances known to be hazardous and associated with Marcellus Shale drilling. Similar codes, Suite Code 943 and 946, are also used by the DEP in similar circumstances; both of these codes omit the presence or levels of drilling-related compounds," White said in a release.

As a result, if Suite Code 942 is applied, the report generated for the homeowner by DEP only includes eight of the 24 metals actually tested for: Barium, Calcium, Iron, Potassium, Magnesium, Manganese, Sodium and Strontium. The homeowner would not be given results for: Silver, Aluminum, Beryllium, Cadium, Cobalt, Chromium, Copper, Nickel, Silicon, Lithium, Molybdenum, Tin, Titanium, Vandium, Zinc and Boron.

“This is beyond outrageous. Anyone who relied on the DEP for the truth about whether their water has been impacted by drilling activities has apparently been intentionally deprived of critical health and safety information by their own government,” White said. “There is no excuse whatsoever to justify the DEP conducting the water tests and only releasing partial information to residents, especially when the information withheld could easily be the source of the problem. This goes beyond incompetence; this is unlawful and reprehensible activity by the DEP. If these allegations are true, there needs to be a thorough and objective investigation to determine if someone belongs in a jail cell.”

White continued: “I am not releasing this information to hurt Marcellus Shale development in Pennsylvania, but to help ensure the reality matches the rhetoric. The Marcellus boom was built on the assumption that the DEP was competent and capable of balancing the positive impacts of the industry with its job of keeping residents safe and secure, but we now know that simply isn’t the case. Like most of us, I want the Marcellus Shale industry to succeed by doing things the right way, so it is crucial to find out what exactly the DEP was up to. If the system is indeed rigged, we must do everything in our power to root out corruption and restore public confidence in our ability to have an honest conversation with one another about developing a responsible energy policy for Pennsylvania.”

Due to what he said is the strong possibility of unlawful conduct, White is calling on the U.S. Attorney’s office, the Environmental Protection Agency, state Attorney General Linda Kelly and any other appropriate law enforcement agency to pursue an investigation of the DEP to "discover the scope and depth of this scheme to withhold important information from Pennsylvanians."

White is also sending a letter to the National Environmental Laboratory Accreditation Program, to investigate whether the DEP’s conduct and practices violated the accreditation standards for the DEP laboratories. If accreditation standards were violated, White is requesting the DEP’s accreditation be stripped, rendering the agency unable to conduct and certify its own tests.

White said he is sending a letter to DEP Secretary Michael Krancer seeking a summary of how many constituents in his legislative district, which includes communities with high levels of Marcellus Shale drilling activity, had DEP tests done using Suite Codes 942, 943 or 946.

White also intends to make a blanket request on behalf of his constituents that DEP release the full testing data directly to the individual property owners in question.

Any Pennsylvania resident who received water quality test results from the DEP should look for the number 942, 943 or 946 as a ‘Suite Code’ or ‘Standard Analysis’. White encouraged anyone with questions to contact his district office at 724-746-3677 for more information and noted that the property owner should be entitled to the complete testing results from DEP.

“This isn’t a technicality, and it isn’t something which can be ignored,” White said. “We are talking about people’s health, safety and welfare. The sworn testimony from inside the DEP about a scheme to withhold vital information about potential water contamination is truly alarming. An investigation is necessary to answer these serious allegations.”

The letter sent to White alerting him of these issues can be found here (it is also attached).

The deposition of TaruUpadhyay, technical director of PA DEP Laboratory can be found here.

Sen. Tim Solobay, D-Canonsburg, who recieved a copy of the letter, said Thursday afternoon that he had not yet had a chance to read through all of the documentation, and preferred not to comment other than to say, "I got a copy of the letter delivered to me. I will look through it and hope to hear some sort of response from the DEP."

Department of Environmental Protection spokesman Kevin Sunday responded for a request for more information with the following statement:

"It is clear to any fair minded person that this letter, which we received only today and are reviewing, is an effort by a plaintiffs' attorney to mislead and manipulate news coverage in an effort to litigate his cases in the press instead of the courtroom. This lawyer misrepresents the deposition transcripts by selective quotation and the lawyer either misunderstands how a laboratory functions or is intentionally misrepresenting how one does. These deposition transcripts haven't even been reviewed for accuracy in transcription by the witnesses yet, which is standard practice. 

Last year, our Pennsylvania Department of Environmental Protection laboratory was given glowing marks in a peer review by the Association of Public Health Laboratories. Here’s the release on that:

   http://www.portal.state.pa.us/portal/server.pt/community/newsroom/14287?id=19171&typeid=1

Our laboratory has the capability of analyzing many, many compounds.  Not all of these analyses are necessary for an investigation into whether oil and gas impacted a water supply. Our investigators request certain compounds be screened for in an analysis, in particular, those associated with oil and gas activities. The results of such an analysis are subject to quality control and quality assurance. That the lab is capable of doing additional analysis for a particular investigation doesn’t mean that our analysis was inadequate or incomplete.

We have a Marcellus-specific analysis that we run at our laboratories based on our experience with the Marcellus activities. The outrageous contention that DEP has “omitted key Marcellus shale ‘markers’” has not been substantiated by this attorney or the so-called expert witness, or any evidence whatsoever.

Further, the plaintiffs' lawyer has not substantiated that families have been exposed to 'a variety of health impacts because they use contaminated water supplies' related to oil and gas drilling activities. Those types of assertions are to be expected from plaintiffs' lawyers trying to profit from getting contingent fees. Our investigations concerning these matters seek to determine whether oil and gas drilling has impacted water supplies; we do not regulate private water supplies, which as the Center for Rural Pennsylvania has shown in several studies, often contain some background level of contamination.

The battery of analyses we order during investigations are thorough and give us the results we need to make sound determinations, which we fully stand behind. DEP takes very seriously instances where we do determine gas migration has occurred from drilling—this administration issued the largest single civil penalty in the history of the state’s oil and gas program last year for such a case.

Regarding his press release, Jesse White is ideologically opposed to responsible drilling regulations which is evidenced by, among other things, his vote against Act 13."

 Editor's Note: This story was updated at 6:16 p.m. to include a response from the DEP. To view the entire letter to Krancer click on the attached PDF file.

DBR November 01, 2012 at 11:08 PM
I read the full letter with the charges raised against the DEP. Two things strike me from the DEP's response. 1) If these contaminants are potentially associated with oil and gas activity and the DEP is routinely withholding this type of information from us as residents, it is very concerning. 2) The DEP saying Jesse White is opposed to responsible drilling regulations because he voted against Act 13 is completely absurd. Act 13 which allows frack ponds next to schools and residential backyards and allows compressor stations 700 feet from homes is NOT a responsible drilling regulation in my opinion. I am disappointed in the DEP response. The main point I am left wondering about as a resident is why would the DEP refuse to disclose the full testing to people who experience problems?
kc November 02, 2012 at 07:08 PM
I live across from a Frack Pond - about 1500 ft from my front door. I had numerous tests done on my water *before* they started drilling and filling the pond. No one tells the homeowner that it the home owner's responsibility to create a baseline. No one. None of my neighbors have taken this step, instead believing that the gas companies and the DEP will take care of them.
imout November 05, 2012 at 11:55 AM
DEP's Kevin Sunday: “If you’re looking at runoff from a mine site, that is different from looking at runoff from a landfill, and different from contamination due to hydraulic fracturing,” he said. “These are a Marcellus shale specific list of parameters that are most indicative to that contamination.” Using the same suite, the report would not include results for silver, aluminum, beryllium, cadmium, cobalt, chromium, copper, nickel, silicon, lithium, molybdenum, tin, titanium, vandium, zinc and boron. Sunday also said that in order to deduce contamination brought on by Marcellus drilling, there are a plethora of other tests done. “We have a full set of analysis that we run and gives us a very clear indication whether there was any contamination from drilling,” he said. So, Representin' is Misrepresentin'
imout November 05, 2012 at 01:29 PM
If the property owners aren't satisfied with the DEP's testing, they are free to have testing performed themselves. The DEP's role here is not to provide free testing to all owners for all possible contaminants. Their role is to determine in this case if contamination came from drilling activities.

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