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DEP Employee Says Agency Withholds Water Contamination Information from Residents

Scott Detrow / StateImpactPA

DEP Secretary Mike Krancer and Energy Executive Pat Henderson during the final Marcellus Shale Advisory Commission meeting.

This post has been updated with further response from the DEP.
The Pennsylvania Department of Environmental Protection has been withholding information about water contamination related to natural gas drilling in the Marcellus and Utica Shale formations, according to the sworn testimony of a DEP employee.
Read the full deposition at the bottom of this post.
Taru Upadhyay, director of the DEP’s Bureau of Laboratories, testified that although the DEP’s laboratory tests for a full range of heavy metals, the lab does not report all of the test results back to the field office, or the resident. The heavy metals left out of one particular report back to a resident of Washington County included cobalt, silicon, tin, titanium, zinc, boron, silicon, aluminum, copper, nickel, lithium, and molybdenum.
The deposition relates to a lawsuit filed against the Department of Environmental Protection in Washington County, Kiskadden v. DEP, and was taken by attorney Kendra Smith back in September. Smith wrote to DEP Secretary Michael Krancer on Thursday, informing him the DEP’s Oil and Gas Division has procedures in place that purposely remove from lab reports water contaminants for certain heavy metals.

“Testimony of Ms. Taru Upadhyay was quite alarming. As the Technical Director of PA DEP Bureau of Laboratories she revealed what can only be characterized as a deliberate procedure by the PA DEP Oil & Gas Division and the PA DEP Bureau of Laboratories to withhold critical water testing results.”

Upadhyay also testified that the DEP’s lab uses EPA approved protocols. In her letter to Secretary Krancer, Kendra Smith says the metals found in her client’s water tests, but not reported to her client, are metals associated with oil and gas flowback and produced water, also called frack water. Smith points to a study conducted with the input of the DEP, which lists aluminum, boron, cadmium, chromium, copper, lead, lithium, molybdenum, nickel, strontium, thallium, tin, titanium and zinc as heavy metals found in flowback water from oil and gas drilling operations. Smith goes on to list documented health impacts of these metals.
Both the letter and the deposition were released by state Rep. Jesse White.
Kevin Sunday, a spokesman for the Department of Environmental Protection, would not answer questions over the phone, but instead sent a written statement to StateImpact.

“It is clear to any fair minded person that this letter, which we received only yesterday 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.”

Read DEP’s full initial response below.
The Pittsburgh Post-Gazette reported that State Rep. Jesse White, a Democrat from Washington County, has called for a criminal investigation of DEP, citing mismanagement and fraud.
“Someone in law enforcement, be it the criminal unit of the EPA, the U.S. Attorney’s office, the Attorney General’s office,” Rep. White told StateImpact Pennsylvania, “needs to go in there, seize the computers and let’s see what’s really going on.”
Pennsylvania’s Office of Attorney General does have an environmental division, but it doesn’t initiate an investigation without the participation and consent of the DEP. The AG could also investigate if requested by a county District Attorney. If the EPA were to get involved, they would work with the U.S. Attorney’s office in the area where the water contamination occurred, which in this case would be the western Pennsylvania division.
DEP Secretary Michael Krancer later responded to White’s allegations in a letter. Krancer says the information left out of the referenced lab reports were not relevant to determining whether or not the contamination had a link to gas drilling. And he says, the levels of the listed contaminants were not high enough to pose a health risk. Krancer also says the protocol followed by the DEP in this case is consistent with practices in other states, including New York, Colorado, Wyoming and Ohio.
To read Secretary Krancer’s letter to Jesse White, click here.
Within the last two years, the DEP has received at least 128 complaints from Washington County residents related to water contamination the residents believed was related to shale gas drilling. DEP investigations concluded that no impact was found in 58 of those cases. Twenty-seven investigations did reveal water impacts from drilling, and two of those were addressed through enforcement. DEP says 25 were resolved between the resident and the driller. As of the end of August, 43 DEP investigations in Washington County continued.
The Pittsburgh Tribune-Review spoke to several water experts and reports that it’s not uncommon for labs to leave out some of their findings.

“They could have 100 different (contaminants) from an analysis, but they’re going to report what’s related to what they’re trying to investigate,” said David Yoxtheimer, a hydrogeologist at Penn State’s Marcellus Center for Outreach and Research told the Tribune-Review. “That’s pretty much standard industry practice.”

But in the case of potential Marcellus contamination, and the emotions surrounding it, some say industry practice needs to change. Former DEP secretary John Hanger tells The Associated Press that while the policy may have been developed in good faith years ago, it should be changed “immediately” to provide people with all the test information possible on water contamination, whether it’s related to drilling or not.
Dr. Carl Werntz is an occupational and environmental health expert who practices at West Virginia University. Werntz tells StateImpact Pennsylvania that some of the chemicals listed by attorney Kendra Smith as deliberately left out of lab reports do often occur naturally in small amounts. But Werntz says as a practicing physician, more disclosure is better than less.
“The more information I’m provided, the better I am at being able to asses the risk and address the health concerns of people who are exposed to Marcellus activities,” says Werntz. “I think that sharing more information will allow people to make better decisions than less information.”
Attempts to reach Taru Upadhyay at home were not successful.
Read Taru Upadhyay’s deposition here:

Read the full response from the DEP here:

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