Monthly Archives: July 2014

Auditor General Report: DEP was “Unprepared” to Meet Shale Gas Monitoring Responsibilities

depasquale

The Pennsylvania Department of Environmental Protection was “unprepared to meet the challenges of monitoring shale gas development effectively,” according to a scathing 128-page audit report released Tuesday by state Auditor General Eugene DePasquale about DEP’s performance monitoring of potential impacts to water quality from Macellus Shale development between 2009 and 2012 – a report that lists eight findings that detail the department’s “shortcomings” related to its function as a regulatory agency.

In a press release DePasquale said, “There are very dedicated hard-working people at DEP but they are being hampered in doing their jobs by lack of resources – including staff and a modern information technology system — and inconsistent or failed implementation of department policies, among other things. “It is almost like firefighters trying to put out a five-alarm fire with a 20-foot garden hose.  There is no question that DEP needs help and soon to protect clean water.”

The audit revealed that DEP failed to consistently issue official orders to well operators who had been determined by DEP to have adversely impacted water supplies.  After reviewing a selection of 15 complaint files for confirmed water supply impact, auditors discovered that DEP issued just one order to a well operator to restore or replace the adversely impacted water supply.

DEP claims that in many cases such orders are procedurally unnecessary as well operators may have already taken steps to restore the water supply under what the agency terms “voluntary compliance.”

“When DEP does not take a formal, documented action against a well operator who has contaminated a water supply, the agency loses credibility as a regulator and is not fully accountable to the public,” DePasquale said. “When DEP has enforcement authority under the law it must exercise that authority routinely, consistently, and transparently. Those gas well operators whose actions cause harm to water supplies should not get an enforcement ‘pass’ just because they have convinced DEP that they will come into compliance with the law or that they negotiated a settlement with the property owner.”

Auditors also reported that DEP did a poor job in communicating its investigation results to citizens who registered complaints with the department.  The agency was not always timely in meeting statutory timeframes for response to complaints it did receive.

“For example, of the water-related complaints reviewed by auditors, the DEP Williamsport regional  office responded to complaints within 10 days, 100 percent of the time, while the DEP Pittsburgh regional office responded to the complaints within the 10-day time period only 64 percent of the time,” DePasquale said. “Why would citizens in the Pittsburgh area have to wait longer for a response than people in the Williamsport area?”

Auditors also noted that DEP’s complaint tracking system, which is used to monitor all environmental complaints, including those that are oil and gas related, was ineffective as it did not provide management with reliable information to effectively manage the program.

“We could not determine whether all complaints received by DEP actually were entered into the system. What’s more, because of how DEP grouped related complaints, it is difficult to figure out exactly how many complaints were received, investigated, and resolved by DEP,” DePasquale said. “While DEP did issue a new policy related to complaint handling, for most of our audit period the existing policy was woefully inadequate. DEP must get that complaint system working.”

In the area of inspections, auditors attempted to measure how quickly DEP was in conducting its initial inspection of shale gas wells, a basic regulatory responsibility.  Unfortunately, auditors were thwarted by DEP’s lack of reliable data—learning that only a “needle in a haystack” review of thousands of hard-copy files would ever yield a conclusion.  Worse, DEP uses a 25-year-old policy on the frequency of inspections, which has a “loop hole,” that only requires DEP to conduct inspections as it has the financial and human resources to do so.

Auditors also found that DEP does not post to its website all statutorily required inspection information. When the data was tested for accuracy, the auditors found errors of more than 25 percent in key data fields, and that as many as 76 percent of inspectors’ comments were omitted from the online inspection reporting.

“It is unfathomable to us that for a basic responsibility of DEP — inspecting oil and gas facilities – little criteria exists for when those inspections should occur,” DePasquale said. “Until DEP updates its out-of-date inspection policies, to include mandated inspections at specific critical drilling stages and during the life of the well, it will be nearly impossible to measure DEP’s performance in conducting this very basic responsibility to protect the environment.”

The auditors also noted that DEP does not use a manifest system for tracking shale gas well waste from the well site to disposal.  Instead DEP relies upon a disjointed process that includes self-reporting by well operators with no assurances that waste is disposed of properly.

With respect to transparency, auditors discovered that accessing DEP data is challenging as it is a myriad of confusing web links and jargon.  The information that was presented on its decades-old eFACTS database was often incomplete—requiring a physical review of hard-copy files at distant offices to verify the actual information.

“Through our audit we found that even conducting a review of hard-copy files is not a fool-proof guarantee, as we found some supporting paper files were missing and DEP was not able to produce them,” DePasquale said. “DEP must improve how it conveys reliable information to the public for an activity that is as high-profile as shale gas development.”

Of the eight audit findings and 29 recommendations to improve DEP’s monitoring of potential water quality impacts of shale gas development, DEP disagreed with all audit findings, but conversely agreed with the majority of the recommendations, indicating that there is some acknowledgement on DEP’s part that it must improve. Eighteen of the 29 recommendations do not require additional funding.

“There was plenty of back and forth with DEP during this audit, and in some cases we just could not agree on some findings,” DePasquale said.  “What matters here is the protection of our drinking water supplies. Implementing these 29 recommendations, two of which were directed to the General Assembly, will go a long way now to protecting drinking water resources.  When we look back five years from now, I believe everyone will all agree that our environment and our quality of life are better because of this audit.”

Among the recommendations, auditors encouraged DEP to:

  • always issue an administrative order to a well operator who DEP has determined adversely impacted a water supply—even if DEP used the cooperative approach in bringing the operator into compliance or if the operator and the complainant have reached a private agreement;
  • develop better controls over how complaints are received, tracked, investigated, and resolved;
  • invest resources into replacing, or significantly upgrading, its complaint management system;
  • find the financial resources to hire additional inspectors to meet the demands placed upon the agency;
  • implement an inspection policy that outlines explicitly the requirements for timely and frequent inspections;
  • create a true manifest system to track shale gas waste and be more aggressive in ensuring that the waste data it collects is verified and reliable;
  • reconfigure the agency website and provide complete and pertinent information in a clear and easily understandable manner;
  • invest in information technology resources and develop an IT structure that will ensure its oil and gas program has a strong foundation for the ongoing demands placed upon it; and
  • develop an all-electronic inspection process so that inspection information is accurate and timely to DEP—and more importantly—public stakeholders.

“Shale gas development offers significant benefits to our commonwealth and our nation, but these benefits cannot come at the expense of the public’s trust, health, and well-being,” DePasquale said.  “We must collectively find solutions to this challenge so that Pennsylvania becomes a leader among states in regulating shale gas development.  I am committed to working with the governor, the General Assembly, and other partners to ensure this audit begins that discussion.”

Here were the findings:

  1. DEP failed to issue administrative ordersDEP has a statutory mandate to issue an administrative order when it determines an operator adversely impacted a water supply. Despite this mandate, DEP in many cases chose instead to seek voluntary compliance and encouraged operators to work out a solution with affected parties. DEP also used operators’ time and financial assistance to complete investigations. In our review of 15 positive determination complaint files, we found that DEP issued just one order to an operator to restore/replace the adversely impacted water supply.
  2. DEP communicated poorly with citizens. In cases where DEP investigated allegations of adverse impacts to water quality from oil and gas activity, it didn’t consistently and effectively provide complainants with clear written investigation results. Further, DEP missed certain key statutory deadlines in investigating these complaints. For example, the Pittsburgh district resolved 76 percent of its complaints within 45 days. DEP cited the complexity of some of its investigations, which may involve extensive testing and specialized isotopic testing, as a reason for missing these deadlines.
  3. DEP was unprepared to handle citizen complaints.DEP stated it tracked all complaints it received about oil and gas activity through its complaint tracking system, yet this system was unable to generate consistent and reliable data on the nature and total number of complaints DEP received. DEP has tried to patch CTS and improve its procedures for use of CTS, but DEP still cannot use CTS data to reliably answer simple questions such as: how many shale gas related complaints were received or how many complaints resulted in a positive determination?
  4. No assurance that shale gas wells were inspected timely.DEP followed an outdated and ambiguous inspection policy that did not provide any clear criteria for how many times DEP should inspect a well. We attempted to measure DEP’s performance in this critical area, but we were stymied by DEP’s continual reliance on manual records and limited reliable electronic data. Also, despite adding several oil and gas inspectors to its staff, DEP did not have sufficient resources to manage the increased demands from Pennsylvania’s shale gas boom.
  5. Shale waste monitoring needs to improve.DEP monitors shale waste with self-reported data that is neither verified nor quality controlled for accuracy and reliability. A true manifest system would allow waste to be tracked seamlessly from generation to transport to final disposition, and it could be a proactive tool for DEP to ensure waste is properly disposed. DEP has been reactionary—only if a complaint is registered or an accident occurs, does DEP verify that where the waste was generated, where it was transported, and where it was disposed actually happened. Such an approach is counter-intuitive to being proactive over waste management.
  6. Transparency and accountability are lacking.DEP “provides a spider web of links to arcane reports on its website. Users are left with a dizzying amount of data, but none of the data is presented in a logical and sensible manner. Worst of all, where DEP could be open and transparent about credible cases of adverse impacts to water supplies, it chooses instead to use an overly strict interpretation of the law and not post any such information.”
  7. Information on inspections poorly tracked.Inspections of shale gas facilities are one of the key aspects of DEP’s monitoring efforts. By law, DEP is to post certain inspection and any resulting violation information on its website. The audit found DEP does not post all required information and in testing the data for accuracy, and found errors as high as 25 percent in key data fields. We also found that as many as 76 percent of inspectors’ comments were omitted from online inspection reporting.
  8. Information technology resources are inefficiently used.DEP’s oil and gas program is not effectively using current IT resources available to it. The systems are reliant upon inefficient manual procedures, which impede effective and efficient data collection and reporting. DEP relies on contracted vendors (some of which are former DEP employees) for many of its IT-related needs.
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Range Resources Wants to Close Frack Pit At Center of Lawsuits, Federal Probe

Impoundments like this are used to store water used in the fracking process.

Impoundments like this one are used to store water used in the fracking process.

Southpointe-based Marcellus Shale drilling company Range Resources has initiated the process to close a controversial centralized impoundment in Washington County, the subject of myriad lawsuits and a federal probe.

Department of Environmental Protection spokesman John Poister on Monday confirmed the agency is reviewing an Impoundment Closure and Reclamation Plan submitted by the company for what is known as the Yeager impoundment in Amwell Township.

“They do not have to do this since impoundment closing plans are part of the original impoundment permits,” Poster said of the plan submitted. “However, because of what they say is local interest, they felt that they should present a closure plan for the impoundment. We have been in the process of reviewing the plan and will issue a response later this week.”

He continued: “If DEP approves the plan, Range would be able to proceed with closure of the impoundment. As part of that closure process, Range will be required to determine if there are any impacted soils at the site.”

If there was a release of water from the impoundment, any impacted soils would be required to be remediated and Range would need to conduct confirmatory testing to demonstrate that the release is remediated, Poister explained.

Three Washington County families in 2012 filed a civil lawsuit against Range Resources and two other companies claiming they had been sickened and their water contaminated by drilling activities conducted on what was known as the Yeager farm property near their homes.

Here is an excerpt from a Pittsburgh Post-Gazette article about the suit:

“According to the lawsuit, Range Resources knew its shale gas development operation on the Yeager farm property on McAdams Road in Amwell had contaminated the groundwater with chemicals from a leaking drilling waste pit and a 3 million-gallon hydraulic fracturing fluid flowback impoundment as early as November 2010. But, the suit states, the company told the plaintiffs that tests showed their well water was safe to drink, shower and bathe in, cook with, and provide to farm animals and pets. Some of those animals were sickened, and some died.

Range Resources has maintained for years that its Yeager operations, which include one “fracked” well and two drilled wells, condensate tanks, the flowback fluids impoundment and drill cuttings pit, have not contaminated groundwater.”

To read the entire story, click here.

In another lawsuit regarding, in part, the Yeager impoundment, Beth Voyles, whose farm is located 800 feet from oil and gas well drilling operations including the pit, alleged in court that the DEP did not investigate various alleged violations there.

Here is an excerpt from a Canon-McMillan Patch article on the suit:

“She alleges that her quality of life and health have decreased dramatically since drilling of natural gas wells at the site and completion of the impoundment. Her health ailments include rashes, blisters, light-headedness, nose bleeds and lethargy,” court documents indicate. “She avers medical testing revealed the presence of elevated concentrations of arsenic, benzene, and toluene in her body.”

Court documents show that Voyles has accused the DEP of failing to undertake a full investigation into air and water issues at the site to determine whether or not those health effects could have been caused by contamination.

In short, the suit alleges that the site “fails to comply with DEP impoundment construction standards and that DEP has failed to issue to (Range Resources) various violation notices, to order compliance with the impoundment construction standards and/or impose civil penalties for (the company’s) violation of the above laws.”

The DEP has maintained that it investigated the complaints and notified Voyles of the results on Sept. 22, 2011. Further, the DEP maintained “the court lacks jurisdiction to review and agency’s exercise of its discretion to enforce it statutory and regulatory duties.”

The Yeager impoundment also made headlines last year, when documents garnered through the discovery process– including internal emails and personnel records detailing an unreported spill of more than 21,000 gallons of flow back water, as well as a “cover up” perpetrated by one of its employees– became public.

The investigative report on those documents can be read here.

Poister has said DEP is investigating the alleged incident.

Neither Matt Pitzarella nor Mark Winkler – both Range Resources’ spokesmen – immediately responded to emails seeking further information about plans to close the pit.

 

Cecil Supervisors to DEP: We Want Soil & Water Testing at Frack Pit in Light of Nearby “Significant Leak,” Meeting

worstell

The Cecil Township Board of Supervisors has again requested a meeting with the state Department of Environmental Protection to discuss concerns over the former Worstell Impoundment operated by Range Resources, as well as chemical testing at the site in light of a nearby “significant leak” at another company frack pit.

In early July, the board authorized the action. In a letter obtained by Marcellus Monitor dated July 10 sent to DEP Secretary Christopher Abruzzo, Cecil Township Manager Don Gennuso wrote:

“Odor, noise, dust and traffic are the most common complaints, but a growing number of residents have expressed concerns relative to the impoundment’s construction. The board shares the residents’ concerns with the recent news reports surrounding problems at the John Day impoundment in Amwell Township.”

The letter references local news reports about the situation, which raised concerns from DEP about “how Range did not find evidence of a problem earlier and why leak detection monitors on site did not alert the company of a breach in the liner.”

The letter then goes on to state that these concerns and news stories has “led residents and the board to question conditions at the Cecil Township #23 Impoundment because it is believed to have been constructed in the same manner and around the same time, ‘being the same vintage’ as the John Day Impoundment.”

The Cecil Township Board of Supervisors takes their jobs as elected officials seriously and strive to ensure that they are protecting and preserving the health, safety and welfare of their residents.

“To accomplish this goal, the board respectfully asks that a representative from the DEP meet with board members to discuss conditions at the Cecil Township #23 Impoundment in addition to the DEP directing an independent testing lab to conduct soil and water tests at the impoundment in the coming weeks.”

Gennuso closed by quoting department spokesman John Poister, who had told a local newspaper in 2013 – after the township had requested and was denied a public meeting with the agency over previous concerns at the pit– that the board has, to date, not heard from anything from the DEP.

He requested that a representative from DEP call him as soon as possible to set up the meeting and start the process of completing the chemical testing.

Gennsuo requested a representative from DEP contact him to set up a meeting time.