Range Resources, TestAmerica accused of fraud in suit by David Singer, June 16, 2016, Observer-Reporter
A lab company Range Resources hired to test water in 2011 that federal authorities later found to be contaminated in Amwell Township is being accused in Washington County Court of altering test results.
Attorney Kendra Smith, representing John, Beth and Ashley Voyles, argued Thursday before Senior Judge William Nalitz that TestAmerica conspired with Range Resources employees to prevent data of nitrates and other specific contaminants from appearing in a final report given to the Voyles family and Pennsylvania Department of Environmental Protection. DEP found the water not to be contaminated based on TestAmerica results, but federal Environmental Protection Agency officials ruled the property’s water on McAdams Road was not safe to drink. The Voyleses are also parties in a lawuit, along with the Haney and Kiskadden famiies, claiming Range’s operations at the nearby Yeager well site and impoundment contaminated their water supplies and caused bodily harm. The problems at the Yeager site were included in a $4.1 million fine levied by DEP against Range.
Attorney Greg Krock of Buchanan, Ingersoll & Rooney, representing TestAmerica, argued the lab company is not liable for how its products are interpreted by users other than its hired clients. TestAmerica is seeking to have Nalitz throw out the lawsuit.
“The misrepresentation (that the Voyleses are alleging) is that the web portal report (from Total Access, a proprietary online data system), was presented as finalized data. It was not,” Krock said.
Smith responded by saying she does not know of a single environmental company that expects its own data results to not be counted on in all contexts.
“TestAmerica is an accredited testing lab. [SO IS/WAS THE ALBERTA RESEARCH COUNCIL (DIDN’T STOP ITS STAFF FROM ENGAGING IN FRAUD TO COVER-UP ENCANA CONTAMINATING THE AQUIFERS AT ROSEBUD, AND ALBERTA ENVIRONMENT’S SHODDY, INCOMPLETE, GOPHER-SHIT FRAUDULENT INVESTIGATION] As part of that accreditation, they are expected to say if and when data is not to be treated as a final and valid report. They gave no such disclaimer on their letterhead printed documents,” Smith said. EPA tests later showed nitrates to be nearly double the allowed legal limit, she said. “That data was nowhere on the Total Access report,” Smith said.
Smith referred to emails in the court record that documented a Range employee being trained by a TestAmerica employee on how to use the Total Access data system and how to “customize the columns.”
In TestAmerica employee Barbara Hall’s email, she wrote “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.” The email also indicated the Range employee’s enthusiasm was “a great selling point.”
According to the plaintiffs’ filings, the customization language is a euphemism for manipulating or altering data. Smith said the Total Access instruction manual details how users can delete columns or hide data. Smith said TestAmerica had motive to collaborate with Range on altering the documents to reflect favorable results so the company would be retained for future testing.
“Oil and gas statutes say a lab must be independent so the reports they produce can be relied upon,” Smith argued. She said Hall sat on the EPA committee overseeing these types of investigations and, as stated in her emails, “knew the stakes were very high.”
Krock argued TestAmerica did not facilitate or encourage any data customization, and Range employees had control of its final reports.
Nalitz will ultimately rule whether the case will proceed to trial.
“This has been very illuminating. I’ll rule soon, allowing 10 days for briefs to be filed,” he said. [Emphasis added]
Lawsuit accuses Range Resources and lab of doctoring water test results by Susan Phillips, June 15, 2016, State Impact
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 [OR INTENTIONALLY EMPTIED? Refer below.] 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. [How irresponsible and shameful that Canada has no such Registry]
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.” [Perhaps explained over steak and lobster or a golf game or two?]
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. [Like Alberta Environment shirking blame in their Statement of Defence in the Ernst lawsuit?
34. Further, and in the alternative, if the Plaintiff did incur any loss or damages as
alleged in the statement of claim, or at all, which the Province does not admit but rather denies, then any such loss or damages were caused solely or substantially contributed to by the negligence of EnCana, for which the Province is not liable. ]
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. [Emphasis added]
[Refer also to:
In April 2012, after Ernst paying $4,150 dollars, 1.5 years in official inquiry by the OIP Commissioner’s Office and giving up thousands of hours over four years trying to get the public baseline testing data mainly collected by Encana and used by Dr. Blyth (as of June 15, 2016 still withheld) and records used/related to his reports under Freedom of Information Legislation, ARC finally releases to Ernst that Alberta Environment (the regulator the ARC was “reviewing”) secretly edited Blyth’s “independent” reports: CLICK LINK ABOVE TO SEE THE SECRET EMAILS
An Alberta government lawyer argued in court this week that Jessica Ernst’s lawsuit on hydraulic fracturing and groundwater contamination should be struck down on the grounds that it would open a floodgate of litigation against the province.
“There could be millions or billions of dollars worth of damages,” argued Crown counsel Neil Boyle.
Justice Wittmann also questioned Ernst’s lawyer Murray Klippenstein about the government’s filing of a report by the Alberta Research Council that dismissed Ernst’s water well case as insignificant. The government claimed the report was an independent review that proved there was no merit in the Ernst case.
Klippenstein argued that such a filing of evidence was inappropriate at this time. He also submitted a collection of Alberta Environment emails obtained through freedom of information legislation that he argued show the Alberta Research Council report was edited by Alberta Environment and not an independent review.
Justice Wittmann allowed the submissions in the event of an appeal.
The Cooked Complaints
Triple Divide prompted further questions for Public Herald, such as whether this type of willful negligence by both the operator and state happened more frequently. By the time records in each of the five townships were analyzed for this report, 9 methods for cooking complaint investigations became clear. Cooked cases were initially reported by Public Herald in the documentary Triple Divide, where DEP turned a blind eye to baseline testing.
During the 2011 Atgas blowout investigation in Bradford County, Chesapeake Energy was allowed to dismiss their own pre-drill water test results to avoid liability for contaminating a water supply. This simple act by DEP essentially changed the background water quality data for the area, creating an artificial history of drinking water quality.
1. Baseline data from predrill water test results is dismissed. Postdrill water tests become the baseline or ‘norm.’ DEP issues a “non-impact” determination despite documented changes in water quality before and after drilling. The first of these cases was uncovered in Triple Divide. This changes local water quality history. Predrill tests are essentially thrown out.
E.G. 281502 (Wyalusing Twp., Bradford Co.) – methane levels go from around 8mg/L in resident’s predrill to 40mg/L in postdrill, an explosive change in methane levels (28mg/L is an explosion hazard in a home.) DEP determines methane is “ related to background conditions and concludes “non-impact.” DEP does not provide an isotopic analysis of the methane to identify the source.
predrill test (n.) – a water test conducted by a certified laboratory at a private water supply before nearby drilling or fracking; used to document baseline water quality in the event of underground water contamination related to oil and gas operations.
postdrill test (n.) – a water test conducted by a certified laboratory at a private water supply after nearby drilling or fracking; used to compare to predrill water test results to determine whether oil and gas drilling or fracking operations have contaminated a drinking water source.
2. DEP cites postdrill water tests as if they are predrill test results.DEP uses water tests taken after drilling within one mile of the complaint as predrill.
E.G. 286764: DEP cites a predrill test that is taken after drilling has occurred in the area. The predrill used by DEP for its determination was conducted prior to drilling of one well pad (Nestor pad in 2011) but after the drilling of another (Stock 144 pad in 2008). Complaint records show the Stock 144 well illegally buried a waste pit that had to be removed. Public Herald talked to Charles Stock, landowner of the Stock 144 well, who confirmed that the Stock 144 well pad had welding problems during the initial casing and drilling. Charles Stock also has water quality problems related to the gas well on his property, but negotiated with the industry off public record. (Delmar Twp., Tioga Co.)
predrill (n.) and postdrill (n.) = not the same thing; see definitions under 1. above
Is Aqua America trying to cover-up frac contamination with chlorine? Chisholm Springs (community in Barnett Shale) drinking water making residents sick, burning skin, pleas for help go unheeded just like in every toxic frac field, including in Alberta. Will oil & gas companies fully disclose all drilling, cementing, perforating, fracing, servicing chemicals, including trade secrets, so that Aqua America can properly test the water?
The Pennsylvania Independent Petroleum Producers Association surveyed its members about wastewater disposal in 2013 and nearly a third of the 80 operators who responded said they dump the wastewater directly on the ground from tanks connected to their wells, a practice that has been against state environmental laws for more than three decades.