Court ruling leaves holes in Act 13, the state’s drilling law

The Department of Environmental Protection already alerts both public and private water supply owners who might be affected by a spill, DEP spokesman Neil Shader said, and the court’s decision will not change that. The agency “will continue to provide notice where the agency believes there may be a potential impact to water supplies,” he said.

The medical disclosure provisions of the law, meanwhile, might not ever have been used. Stephen Miskin, spokesman for the Republican majority in the state House of Representatives, said no doctor has ever requested the chemical information, at least not that House leaders are aware of.

Raina Ripple, director of the Southwest Pennsylvania Environmental Health Project, a Washington County nonprofit that does educational outreach about the health impacts of shale gas drilling, said doctors couldn’t fill out the forms described in the law to get access to information on drilling chemicals because “those forms don’t even exist.”

“So not only were health professionals working under a restriction about sharing and getting information,” she said, “there isn’t even a system in place that allows them to work under that restriction.”

Mr. Shader said the court’s opinion does not require DEP to notify private water users and it does not direct the Legislature to create such a requirement. Instead, it gives the Legislature time to come up with a solution of its own design.

It is not clear how the Legislature will respond to the advice.

“We are still reviewing,” Mr. Miskin said, “and have to have many discussions with leaders, members, the Senate and administration about our options.”

Senate Republicans also said they are still analyzing the court’s decision, which they said could have “farreaching” environmental consequences. “We are working to determine what those impacts will be,” spokeswoman Jennifer Kocher said. “We will be considering our next steps, if any, in the coming weeks.”

Jordan Yeager, an attorney for the winning parties in the case, said the promised benefits of the medical disclosure section of the law were always “illusory,” in part because they did not extend to the drilling service companies that actually know the composition of trade-secret fracking fluids.

The removal of that section of the law should be viewed in that context, he said.

“Clearly the Legislature recognized the importance of requiring disclosure” when it enacted the law in 2012, he said. “They ought to follow through on ensuring that that’s done in a meaningful way.”

One obstacle to expanding DEP’s obligation to alert water users of potential contamination from spills is that no one knows where all of the state’s private water wells are or who owns them.

The agency’s lawyers had argued in court filings that because the state does not regulate private water supplies, it does not have a reliable inventory of their locations or their owners and neither does anyone else.

Mr. Yeager said, “The court dissected that and rejected that.” DEP could start by looking to the sampling surveys of private water wells that oil and gas companies submit before drilling new wells, he suggested.

But DEP said its spill notification obligation extends beyond well sites, to well pad access roads, wastewater holding ponds and other drilling support facilities around which companies have less of an incentive to perform sampling.

“You can’t notify people that you don’t know are there,” said Michael Krancer, a former DEP secretary who led the agency during the years when Act 13 was drafted and passed.

He said the idea to require DEP to notify public water suppliers actually came from DEP, because the agency knows where those facilities are and who runs them.

He suggested that legislators could introduce a softer standard, for example, by requiring DEP to try to alert private water well users of spills to the best of its ability.

Patrick Grenter, Center for Coalfield Justice executive director, said there are ways to improve the state’s information on private water wells and suggested the drilling industry should bear the cost.

“Other states have a much better handle on groundwater well locations, and it would require an investment of time and resources by the state to learn that information and compile a comprehensive database,” Mr. Grenter said. “But the cost should be carried by the industry putting those resources at risk.”

Democrats who make up the minority in the House and Senate signaled they want the Legislature to take the opportunity to improve Act 13.

Sen. John Yudichak, a Luzerne County Democrat who is the minority chairman of his chamber’s energy and environment committee, said he hopes, with the ruling, “that the Legislature will come together to take the necessary action to craft a more balanced law.”