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DEP's Fracking Record-Keeping Blocks Transparency

Susan Phillips / StateImpact Pennsylvania

Empty water jugs used to haul clean water hang from a house in Washington County. Residents suspected nearby gas drilling as the culprit for their wells going bad. The DEP investigation concluded drilling was not to blame.

Here’s a key question amid Pennsylvania’s natural gas drilling boom: How is drilling affecting residential water wells? Researchers say data on that core question is spotty. But one Pennsylvania agency could hold the key to answering questions from both residents and scientists. The problem is, the state Department of Environmental Protection says it organizes its records only to “support our operations,” according to agency spokesman Kevin Sunday.
So a simple request that could shine light on at least how many cases of water contamination the DEP determined were due to gas drilling operations, turned into a protracted legal battle. In an open records case settled last year between DEP and the Scranton Times-Tribune, the Commonwealth Court criticized the DEP for poor record-keeping.
But the DEP remains unapologetic about their unsuccessful argument to the court that providing copies of their water investigation determination letters would be “burdensome.”

When questioned via email, DEP spokesman Kevin Sunday did not answer whether or not the agency believes these records should be made public, or whether the agency has sought additional resources to respond to voluminous right-to-know requests. Instead, Sunday said it would be “inaccurate” to describe the agency’s record-keeping as incomplete and disorganized. This despite several affidavits from DEP staff describing the enormous difficulty of providing these letters, which are sent to each resident who makes a complaint that gas drilling has impacted their water supply.

“Our position as we argued during this appeal,” wrote Sunday, “was that the requestor’s Right to Know request was overly broad. Our files were organized in a way that supports our operations but does not necessarily respond to broadly worded Right to Know requests.”

But both the Office of Open Records and the Commonwealth Court disagreed with DEP’s argument that the request was “broadly worded.” Here’s what Commonwealth Court Judge Anne E. Covey wrote in the three-panel decision against the DEP, and in favor of Times-Tribune reporter Laura Legere:
“In fact, the burden on DEP comes not from some vast array of documents requested by Legere, but from the DEP’s method of tracking its records,” wrote Judge Covey. …A requester cannot control how an agency catalogues or organizes such files. As such, an agency’s failure to maintain the files in a way necessary to meet its obligations under the RTKL should not be held against the requestor. To so hold would permit an agency to avoid its obligations under the RTKL simply by failing to orderly maintain its records.”

Looking for Answers

About a year and a half ago, Scranton Times-Tribune reporter Laura Legere began her quest by filing a right-to-know request with the Department of Environmental Protection.
“I was trying to answer the question of how many water supplies the state has determined had been impacted by drilling,” said Legere.
She asked for a document summing up the inspector’s findings. It’s known in the agency’s jargon as a “section 208 determination letter.”
Legere says she thought of her request as fairly easy to fulfill.
But the DEP initially told Legere it could only provide those letters found via “institutional memory.”
“They really didn’t have a sense of how many of these documents they had or how best to find them,” said Legere. “But they were willing to give us something.”
That something turned out to be —  not much.

Legal Wrangling Begins

So Legere first sought help from the Office of Open Records, a neutral agency that reviews cases where a citizen wants to challenge the state’s right-to-know response.
The open records office sided with the paper, telling DEP to turn over all the letters. But DEP appealed to the Commonwealth Court, saying Legere’s request was too broad and too burdensome.
The Commonwealth Court ruled against the DEP. It said the agency’s poor record keeping was not an excuse to withhold the records.
So Legere ended up getting 969 records, and spent more than six months poring over them. She found that in the majority of cases, in fact, about three-quarters of those letters, reported that water contamination was not connected to gas drilling. In 161 cases, the DEP did determine that gas drilling was the cause. She describes these letters sent to property owners as formulaic.
“DEP says: These are not simple documents; these are not form letters,” said Legere. “But actually very many of them are almost entirely the same.”

Scant Information

Sometimes, Legere says, the state did warn residents of high levels of contaminants such as manganese or methane. But, in cases when DEP exonerated drillers, only rarely did the agency offer a theory as to what else caused the pollution.
“There was never any sign of what the state went through in its investigation,” said Legere. “Regardless of whether or not it found a drilling impact. Usually it was just simply here is your water test, and here are the things we found in it. They are not the most revealing documents.”
In fact, sometimes the industry provides more answers than the state. Legere points to a case in Franklin Forks, where the DEP determined gas drilling was not the cause of resident’s water problems. But the DEP issued more information about their investigation in a press release, than in the letter to residents. And while the gas drilling company, WPX Energy, published their investigation, the DEP would not.
Still, Legere’s open records fight set a good precedent, according to an expert in the field.

The Right-to-Know Toolkit

Gayle Sproul is a media lawyer and legal director with the Pennsylvania Freedom of Information Coalition.
“And this is why I congratulate her for pursuing that case,” said Sproul. “So that case is very important because it takes [DEP] by the shirt collar and says look, look at stuff, go look at it, find the people who will go into the dusty places, put it somewhere where its more easily accessible. Find it.”
Sproul represented the Associated Press in a similar case with the DEP.  She says the environmental agency is far from the only state agency to resist open records requests as burdensome. So Sproul views the Scanton Times-Tribune case as a good precedent clarifying the 4-year-old right-to-know law.
“But that comes from the fight,” says Sproul. “That comes from not giving up and going to court and being determined and hiring lawyers.”
But Sproul says lots of individual citizens don’t have the resources for such an expensive and lengthy court battle.
Times-Tribune reporter Laura Legere says she’s glad her paper decided to pursue it.
“Although I wrote the initial request, not a lawyer,” says Legere. “I don’t have any confidence that I would be able to successfully argue the way the attorneys did. So that to me is a problem.”
Legere says scientists, researchers and the public all have a legitimate interest in DEP’s drilling and fracking records.
DEP spokesman Kevin Sunday says the agency receives about 1,200 right-to-know requests each year, and “continues to operate with the utmost transparency.” He declined to provide information on the cost incurred by state to challenge the records request.

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