A water testing company that worked with Range Resources to evaluate whether or not residential water supplies were contaminated is defending itself against a lawsuit that claims the company allowed the gas driller to alter a print out of the test results, which Range then submitted to the Department of Environmental Protection. The DEP used the altered results, in part, to conclude that the Washington County residents’ drinking water was safe, and passed on the lab results to the residents. The family, John, Beth and Ashley Voyles, had also had their water tested as part of the EPA’s landmark fracking study, and say they agreed to the testing only if they would have access to the results. The EPA came to the opposite conclusion of DEP, advising the Voyles not to drink their water. Before receiving the test results, the Voyles had already stopped drinking their water, which they say made them sick.
The company, TestAmerica, has facilities across the U.S. and is a member of the industry group Marcellus Shale Coalition. The company’s website declares itself “the leader in environmental testing.” TestAmerica is defending itself against a civil lawsuit brought by the Voyles who say the company conspired with the gas driller to defraud them of accurate test results, which would have revealed dangerous contaminants. The accusations are part of a larger case against Range Resources, and attorneys representing TestAmerica will be in Washington County Court of Common Pleas on Thursday, in an attempt to get the company dismissed from the civil suit.
The incident that resulted in the contaminated water dates back to 2010, when fracking waste leaked from six impoundment tanks, penetrating soil and groundwater. The DEP ended up fining Range Resources $4.1 million in 2014 for the incident, but said at the time that drinking water supplies were not impacted. Since then, the federal Agency for Toxic Substances and Disease Registry, in conjunction with the EPA, have told the residents the water is not safe to drink.
The software used by TestAmerica, which they call Total Access, provides clients access to the test results in a database, which can then be altered as their customer sees fit. In an email sent by TestAmerica employee Barbara Hall to a colleague, which is part of the court record, Hall is effusive about the reaction of Range Resources’ employees, describing them as “wild about it,” and the software a “great selling point” to oil and gas producers.
“Just got off the phone with Carla Suszkowski of Range — we walked through Total Access and she couldn’t say enough good things about it — she has told Jonna Ference and Laura Rusmisel…they have to sign up. Once I walked her through the reg limit comparisons, explained how she can customize the columns, and especially how long the data was accessible to them, she said she was wild about it….I think it is a great selling point for us….She is very vocal in the producer community and I think she may tout this tool to our benefit.”
In a brief filed by the Voyles’ attorneys, the plaintiffs call the “customization” referred to in that email a “euphemism for data manipulation and fraud.” The results, which were sent to DEP did not include information that they were altered in any way. In a deposition, Alan Eichler, the former head of DEP’s oil and gas division, says he did not know that the tests were altered. But the defendants produced an email to Eichler dated September 14, 2011, from Range Resources’ Carla Suszkowski that read “…these are only preliminary results, as we only have partial analysis back from the sampling event in July when we split sampled with the EPA.”
Eichler testified that he did not remember receiving the email.
Had the Voyles gotten the full results back in 2011, they would have learned that their water had concentrations of nitrate exceeding recommended levels that could result in severe health effects. The test results sent to DEP by Range also left out the presence of semi-volatile compounds such as butyl benzyl phthalate, di-n-octyl phthalate, and pyrene. The EPA tests found naphthalene, phenanthrene, 2-methylnapthalene, flouranthene, silicon, as well as uranium.
The EPA’s term for altering test results is “pencil whipping.” The agency released a report in 2001 entitled “Report of the Laboratory Fraud Work Group,” which indicates that these types of practices may not be uncommon.
“Although there are several causes for laboratory fraud, they can be divided into two obvious categories; one is money and the other is lack of regulatory oversight. Like most crimes of fraud, money is the incentive. In laboratory fraud, the monetary goal could be either making money or saving money. There could be a collusive arrangement between the laboratory and the client facility, whereby the facility knows, either directly or implicitly, that the laboratory will produce the desired results for a fee.”
TestAmerica, which is represented by the large Pittsburgh firm Buchanan Ingersoll & Rooney, say the TotalAccess software user’s guide describes several legitimate ways to customize the data and that it is not designed for fraud, nor did TestAmerica guide Range employees in how to hide information. In response to the plaintiffs brief, TestAmerica says their user guide does not “address printing out partial results and disseminating them to third parties.”
TestAmerica argues that it did not participate in any fraud because it was Range Resources, not the testing company, that altered the data in the printouts sent to DEP. And it was the DEP, not Range Resources or TestAmerica, that sent the results to the residents. The company says it is not responsible for how Range Resources handled and distributed the data. The brief details case law in which they argue a lab is only required to present full and accurate data to its client, not non-client third parties. The company also argues that it had no financial incentive to help Range doctor the test results.