DEP as murky as frack water by Scranton Times-Tribune, May 23, 2013
From the day the first drill bit broke the surface of Pennsylvania in search of natural gas from the deep Marcellus Shale formation, the industry’s impact on water quality clearly has been the primary environmental concern. Yet the state Department of Environmental Protection has been less than transparent in its fundamental role of ensuring that water supplies are as clear as the public’s right to know about drilling’s impact. When reporter Laura Legere of The Times-Tribune requested copies of DEP public records relative to water quality late in 2011, the agency responded that it could not find most of the letters and enforcement orders.
A three-judge panel of the state Commonwealth Court later found that a public agency can’t reject open-record requests just because it has not kept track of its own documents: “… There is simply nothing in the (Right to Know Law) that authorizes an agency to refuse to search for and produce documents based on the contention that it would be burdensome to do so. … It cannot be inferred that the General Assembly intended to permit an agency to avoid disclosing existing public records by claiming, in the absence of a detailed search, that it does not know where the documents are.”
The DEP’s inability to locate its own documents occurred during a period when many property owners and environmental activists had questioned the completeness and accuracy of DEP testing relative to water quality.
When Ms. Legere finally waded through nearly 1,000 letters and enforcement orders that the DEP managed to produce under court order, she found that gas and oil drilling had damaged 161 water supplies between 2008 and 2012, ground-breaking information that the DEP should be able to provide to the public as a matter of course. The state open records law passed in 2008 properly places the disclosure burden on the agency holding the public records. But in its response to the newspaper’s record request, the DEP attempted to reverse the burden. It demanded specific information, such as permit numbers and well numbers, and said it couldn’t be expected to find the data because, conveniently, it did not maintain an index or an electronic data-tracking system. Lawmakers should demand an explanation for that, six years after gas drilling began in earnest, and mandate a comprehensive, easily accessible system for all records pertaining to gas drilling’s impact on water quality. [Emphasis added]
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