Public meets with long delays in reviewing DEP Marcellus files
This photo shows just a portion of the files from state Rep. Jesse White's right-to-know request of the DEP's Worstell water impoundment in Cecil Township. White said it took him nearly three months to obtain the files from the DEP.
The Yeager centralized impoundment in Amwell Township was used in the Marcellus Shale natural gas drilling industry.
Federal agencies often have reading rooms where anyone who is interested in their public records can see them in a central location without bureaucratic delay.
It’s a concept the Pennsylvania NewsMedia Association supports in a state where reporters and residents complain about public access at agencies such as the state Department of Environmental Protection, which is being deluged with requests to see records, said Melissa Melewsky, PNA’s media law attorney.
“It’s easier for all if they’re proactive,” Melewsky said.
But, she said, the DEP is “not user friendly,” and was told by Commonwealth Court that it has a bad file organization system, one that caused a nearly four-month delay in the Observer-Reporter staff getting access to 18 local Marcellus Shale centralized impoundment records.
“The delay was inexcusable,” O-R Editor Liz Rogers said Saturday, two days after the DEP fined Southpointe-based Range Resources $4.15 million for leaks and other problems at its Washington County water impoundments.
“The time lapse could be critical in a situation where deficiencies are occurring,” Rogers said.
The fine involving six of the company’s impoundments, or temporary dams for fresh and fracking flowback water, is the largest the DEP has levied against a driller. The leaks did not pollute any private water wells, the DEP said.
In the event of an emergency at a Marcellus site, the DEP would immediately work to make public the contents of a record, said department spokesman John Poister.
Poister said the DEP has neither the staff nor the space for many people to conduct file reviews at its Southwest Regional Office in Pittsburgh. He said the DEP has been overwhelmed with public requests to review natural gas drilling records, resulting in a seven-week backlog for people seeking appointments for access to them.
State Rep. Jesse White has been an outspoken critic of the DEP’s oversight of the booming Marcellus Shale industry, saying his recent file reviews and difficulty in obtaining the information raised even greater concerns in his mind.
“They have to figure out a way to be better,” said White, D-Cecil. “Every time we do a file review, we’re finding out all sorts of crazy stuff. The level of transparency doesn’t need to be a little bit better; it has to be exponentially better.”
Commonwealth Court agrees, ruling in August 2012 that the DEP doesn’t “catalog or otherwise organize determination letters or corresponding orders in a way that permitted them to be easily located” in a case involving a newspaper reporter seeking drilling-related documents, court documents show. Times-Tribune reporter Laura Legere won the DEP appeal to the higher court and later reported the documents she obtained revealed “oil and gas development damaged the water supplies for at least 161 Pennsylvania homes, farms, churches and businesses between 2008 and the fall of 2012″ in northeastern Pennsylvania, the Scranton newspaper reported.
The Mid-Atlantic Renewable Energy Association also met obstacles when it sought DEP records on a program offering rebates to homeowners and businesses for their solar energy projects. The DEP appealed that case to Commonwealth Court, saying it didn’t want to “troll through raw data” that existed only in digital form and organize it for the request. It lost the appeal in August 2012, when the higher court ruled the program’s applicants were informed on the application form “the information on their applications was public and subject to disclosure.”
The Observer-Reporter staff review of the impoundment records Aug. 19 and Sept. 9 revealed many of them to be messy, out of order and in some cases incomplete.
Poister said Range Resources’ files have undergone many reviews because its impoundments are located in areas with more traffic, and that resulted in their condition. He said those in more rural areas are often not the subject of a file review.
He said there were 400 review requests for information in the DEP’s sprawling file room between January and May from private citizens, reporters and consultants.
“They are booked every day,” Poister said.
He said the investigation leading up to Thursday’s fine against Range Resources delayed the release of the company’s files to the Observer-Reporter and resulted in certain information having been pulled from them.
He said the DEP is aware of the concern about public access to its files and that the agency wants to eventually make the information digitally available, something that will require “money and energy.”
White said his staff performed file reviews “only to later learn documents were missing or redacted.”
Many files are withheld or their release is delayed because the DEP considers them part of noncriminal investigations, which could be “said about any situation involving the DEP,” White said.
It would be impossible for the public to know what has been removed from a state file unless the person holding them was “on camera” when the files were pulled before their release, Melewsky said.
She said the DEP needs to be proactive in releasing records, especially those involving the Marcellus Shale industry that have a significant impact on the public and there is a “high interest” to see them.