Cooked! An exclusive whistleblower report by Public Herald
How Pennsylvania Regulators Kept Water Contamination from Fracking "Off the Books."
(Read Part 1 & Part 2 of this series from Public Herald)
"Journalism is printing what someone else does not want printed. Everything else is public relations." ~ George Orwell
I can tell you that listening to the squeaky wheels of a scanner poring through public records feels about the same as watching paint dry. It was the worst job we had at Public Herald. And, nearly every Monday over the course of twenty-four months or so, that boring repetition tried to answer one simple question in our newsroom: "How much water contamination has there been in Pennsylvania from fracking?"
As an investigative journalist, you never know when a whistleblower will arrive, and it's most often when you least expect it.
Around month twenty-eight of this investigation, sitting down to scan the last remaining complaint files, a paper with everything blacked out except one paragraph was left on my file review desk by a veteran Pa. Department of Environmental Protection (DEP) employee. It read "DEP retention policy." In a paragraph about "Complaints," the document revealed that the Department should only hold complaint records for five years after resolution – "then shred."
What Are Complaints?
Even though fracking for shale gas in the Commonwealth dates back to 2004, the Pennsylvania story of water contamination has never been completely told. And it couldn't be.
Early on, the DEP made sure that citizen complaint records, the "911 calls" that alert DEP to potential water pollution, were withheld from public view. Right-to-Know requests submitted by the likes of Earthworks, Public Herald, and more were all being denied using exemptions in the Right To Know Law.
Since complaint records come from citizens, DEP has a responsibility to leverage "privacy" concerns. But simple redactions of personal information were all that was needed to release these files, and for years DEP refused to do so. Citizen reports are the eyes and ears on the ground, and range from water problems or violations observed at a well pad, to any number of concerns about fracking.
Complaint Form #279494: Date Received: 5/9/2011. "Well Water has an oil/gassy smell. Started last week. Several gas pads nearby started fracking...Complainant stated her water smelled like a 'mechanics shop' which was very descriptive of the odor." Charleston Twp., Tioga County
At Public Herald we know that without all of these records, fracking's darker story of water contamination can only be marginally understood.
So, in 2011, we sent our first email request for an informal file review to DEP's Northcentral Regional Office in Williamsport for complaints. At that time, Public Herald was in production for the fracking documentary Triple Divide (2013), which featured our initial investigations of water contamination related to oil and gas operations. The request never produced a single document.
Then in 2012, Public Herald's Melissa Troutman learned that complaints were being held as "confidential." When she asked why, an attorney from DEP's Southwest Regional Office told her that Deputy Secretary Scott Perry didn't want the complaints to "cause alarm."
Complaint Form #285711: Date Received: 12/16/2011. "Complainant lives in Wyalusing, Pa. Her well water turned purple on Thanksgiving Day. It ran Easter-Egg purple for about five minutes, then faded to normal, and then the well went dry. She is not comfortable with drinking her water/using it for cooking now and certainly will not have her children drink it." Wyalusing Twp. Bradford County
But later in 2012, DEP was hit hard for transparency failures after losing an open records lawsuit with the Scranton Times-Tribune that requested all the "determination letters" the Department had on file. And, knowing that determination letters were part of a complaint record, however small, it meant that the door Scott Perry slammed shut was now partially open, and Public Herald walked in.
Nothing at DEP file reviews came easy. Using persistence, threatening a lawsuit, and at one point holding a verbal standoff with one of the office's regional directors, Public Herald had to use every trick in the book to get these records off the shelves.
"Your demands don't give up at all," DEP Clerical Supervisor Ashleigh Scarbrough told us during a 2014 review. "It's like you want to come in now until the end of eternity every Monday, and we just can't keep up with it." At this time the office was trying to reduce the number of files provided to Public Herald to eight townships per visit from previously providing whole counties per visit.
Since Scarbrough wouldn't budge, we had to turn the cameras on. This caused the Director of DEP to be called down.
"You're kind of on the cutting edge of asking for things," said DEP Regional Director Marcus Kohl. "It makes it more difficult for us to be prepared for that ..." he explained as to why complaint records would take longer to produce, since the agency had never had to redact the files for public use. To Mr. Kohl's credit, a negotiation was reached that day that cut out at least an extra six months of file reviews in the North Central office of Williamsport, Pa.
Complaint Form #279494: Date Resolved: 6/3/2011. "I received notice from our laboratory of the preliminary results for the VOC sample. Preliminary results were as follows: benzene was 30ppb, toluene was 63ppb, and total xylenes was 55ppb. I cautioned the complainant to not drink the water or use it for cooking." Charleston Twp., Tioga County
When finally leaving Williamsport that day, we expected our problems were going to be a thing of the past. Little did we know that our next stop in Pittsburgh would end up being worse. DEP's Southwest Regional Office was the most unorganized and understaffed of the three DEP regional offices. After our first file review in Pittsburgh, I had to send the Southwest DEP staff a tutorial about how to compile a complete citizen complaint file:
Jeff, due to the handling of our review on 01/14/15 I have strong concerns about public records and transparency in your office. I'm extremely disappointed about the incomplete oil and gas records provided to Public Herald. Complaint files presented [should be] in relation to water, general pollution, or the like, and found in a complaint folder that's labeled by county; with individual complaint numbers found in folders for each township. An example of what these records would look like is attached here. It took myself alone only one hour and fifteen minutes to scan and file into a hard drive all of the [incomplete] records provided for this review. I, therefore, wasted the time and resources of three members on our file team who were in attendance. I'm outlining these concerns in detail [below] in order to help prevent another review of incomplete records.
Over two years later, our file team would finally have the complaint records for 17 of 40 shale gas counties from two regional offices. To this day, 31 months later, we're still on DEP's monthly file review calendar to collect the remaining complaint records for 23 counties.
Out of those 17 counties, our newsroom zoomed in on 200 complaint investigations from five key townships and found that the Department "grossly mishandled" a significant percentage of its water contamination cases between 2009 and 2012. We ended up referring to these mishandled cases as "cooked" — a term we felt best described the systemic failure we discovered within the Department.
Cooked cases were initially reported by Public Herald in the documentary Triple Divide, where DEP turned a blind eye to baseline testing. During the 2011 Atgas blowout investigation in Bradford County, Chesapeake Energy was allowed to dismiss their own pre-drill water test results to avoid liability for contaminating a water supply. This simple act by DEP ended up changing the background water quality data for the area, creating an artificial history of drinking water quality that could be used to dismiss other complaint cases.
In the recent report published at Public Herald, we uncovered a total of nine ways that officials at the DEP kept drinking water contamination across Pennsylvania, like the Atgas blowout case, "off the books."
In Delmar Township, Tioga County, we found a single inspector cooked nine of 27 cases, a likely 33% increase in the total number of polluted water supplies. Some of these cases were cooked when the inspector ignored clean pre-drill test results to rule that oil and gas operations were not responsible for water damage. Or, the inspector would use a contaminated post-drill test provided by industry as if it was a pre-drill test.
Complaint Form #275365: Date Received: 10/7/2010. "Complainant stated that family members keep getting sick. A neighbor had experienced problems with their water supply (Complaint #274235) … the nearest well is the Stock 144." Delmar Twp., Tioga County
In other instances, DEP would test a water supply for over a year until one test had a result closer to the pre-drill. At that time, a non-impact determination letter would be sent, and no further testing would be performed, even after months of prior test results showing contamination. (All nine ways can be read in detail at publicherald.org with examples.)
Basically, what all this means is that DEP's current total for water contamination cases related to fracking, which they say is now 260, is false; it's understated; it's cooked.
Getting complaint files out of DEP offices and digitized for public use online was worth the struggle in many ways. Public Herald has now released the largest dataset of water contamination cases related to fracking in the Commonwealth: a total of 2,309 records of DEP complaint investigations in an online, open-source project called #fileroom (PublicFiles.org). And that means, the public now has a much clearer picture of what's happening to drinking water supplies across the shale fields.
On the #fileroom website, maps are searchable by county and township and all files can be viewed, printed, and shared. Residents can click their county or township and search their home address to find water contamination complaints nearby; or scientists, health professionals, and journalists can see where clusters of problems are happening.
How A Cooked Complaint Gets Uncooked
To believe that a complaint can't be cooked is to accept that DEP's decisions are infallible. But, the question Public Herald had to deal with after seeing so many problems was, "Has DEP ever changed their determination about a complaint?"
In analyzing dozens of cooked water contamination determinations made by DEP, we are only aware of one instance where DEP changed its determination to hold an oil and gas company responsible for pollution after the Department previously let the company off the hook. In this rare case, DEP was pushed to reevaluate its decision by an attorney who used the Department's own investigations to point out an obvious incongruity.
In Westmoreland County, WPX, a Delaware limited liability company drilling and fracking in Pennsylvania, had a leaking waste impoundment that documented complaints show contaminated nearby residential drinking water supplies. DEP tested the water of neighboring homes after the initial complaint was made on Sept. 4, 2012, and later determined two water wells were contaminated by WPX's operations. DEP concluded pre-drill and post-drill test results showed an increase in chlorides, manganese, total dissolved solids, and other constituents.
But nearly a year later, after a third resident filed a formal complaint about bad water, DEP sent them a letter stating their investigation was "inconclusive," even though the water had elevated contaminants of the same oil and gas-related pollutants found in the previous two neighboring water wells.
That's when Nick Kennedy, Esq., a Community Advocate with Mountain Watershed Association, stepped in with a letter "requesting that the Department reexamine the existing data and issue a positive determination letter with all possible haste," citing a comparison between the third resident's water and that of the neighbors:
... the water test results of the ____s and their next door neighbors the _____s … demonstrates that the two neighbors suffered the exact same impacts from the leaking impoundment of the Kalp #1-9H site in Donegal Township. Despite that connection, the ____s received a positive determination, whereas the ______s did not … and examination of the _____s test results shows, as the chart below reflects, that their water exhibited increases in the exact same contaminants …
After Kennedy's request, DEP retested the third resident's water and about one month later, even though the final test was less contaminated than the first, DEP changed their decision. On Aug. 9, 2014 they issued a positive determination letter, this time concluding that the third resident's water supply was also damaged by oil and gas operations.
"Through further investigation and sample collection, the Department has determined that nearby oil and gas operations are responsible for these impacts to your water supply," state DEP in its letter. The conclusion was made by comparing pre-drill and post-drill tests on the water supply, a conclusion the DEP failed to make the first time despite having the same evidence.
I looked again, and then again at that paper dropped on my desk. I still couldn't believe it. "Then shred" was next to one tiny paragraph on the page marked "disposal code number 3" for "special handling" – it meant that in five years, the evidence behind stories documented in Triple Divide and at Public Herald could have otherwise been shredded, eliminated from public record. It also meant that the records our team has been scanning and meticulously cataloguing the past two years would have likely been shredded in just a few more years and never seen again.
Initially, we figured these records would be kept on microfiche or a digital PDF and that shredding them would only ensure space within the records office. But, after careful questioning with an employee who's been with the agency for decades, the staff person revealed that only those records which could be considered "useful" would be kept on record at all, turned into microfilm; and "useful" meant only those listed in DEP's 260 positive determinations. What shocked us even more is that, according to this whistleblower, there is no review committee in place to sift through the "non-impact" records before they are shredded.
I put the paper down and heard a deafening sound – the echo of all the families I met fighting for a chance at the truth in dozens of cases where DEP failed to do the right thing. I thought about all the ways DEP had lied to them, and to me, over the past two years about complaint records and more, and about this new question of retention — of what is left behind to tell the whole story.
I turned to my scanner, loaded the whistleblower document, pressed the button, checked the room to make sure no one was watching, and listened to the same boring wheel squeak its way through one more page and thought, "Best job I ever had."
(Read Part 1 & Part 2 of this series from Public Herald)
Melissa Troutman, Public Herald Executive Director, contributed to this report and personally wrote "How a Cooked Complaint Gets Uncooked"
File Team members from #fileroom who scanned/organized/published complaint records: John NIcholson, Aziz Lalani, Ducky, Casey R. Pegg, Zora Acephala, Kyle Pattison, Amanda Gillooly, Joshua B. Pribanic, Melissa Troutman
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This is the third installment of Public Herald's Complaint Investigation as part of the INVISIBLE HAND series. To read the full report, visit http://PublicHerald.org/invisible-hand/.