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 accessible record.
"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 is unconscionable."
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 contamination.
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 supply."
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 through 2013.
Don Hopey: email@example.com or 412-263-1983. First Published April 2, 2014 11:16 PM