#fileroom . CONTENTS PRESUMPTION OF OPENNESS All records are Public unless disclosure is barred by: 1) state or federal law/regulation, or judicial order HOW-TO CONDUCT A FILE REVIEW Find Oil & Gas Regional Offices RTK vs. Informal File Review PA DEP File Review Guidelines 3 KNOW YOUR RIGHTS 9 3) exemptions: Section 708 of the Right-to-Know Law SCANNER & OBTAINING FILES 11 The burden is now 100 percent on the agency to establish why the record is not available. BACKGROUND CONDITIONS 12 2) privilege (e.g., attorney-client, doctor-patient) ~ Pennsylvania Office of Open Records, 2015 #fileroom is built on the idea of collaboration and cooperation in order to achieve the best possible results. We employ creativity through the concepts of Open Source and copyright-free publications to help realize our goals. SECTION 3218 LAW Presumption of Liability Law 13 COMPLAINT FILES AT DEP REVIEW PA DEP View Of Complaints 14 COMPLAINT MAPS DEP Complaint Flow Chart Water Complaint Files General Complaint Files Determination Letters 15 CHEMICAL ANALYSIS BREAKDOWN APPENDICES (forms to fill out) File Review Checklist COPYLEFT NON-COMMERCIAL ZERO COPYRIGHT Intellectual copyright is theft. GLOSSARY OF TERMS 26 28 (coming soon) PREFACE As shale gas extraction grows to over 7,000 active wells within Pennsylvania borders, more than ever, residents and neighbors of oil and gas activies need to know how to access records about official regulation of the industry in their community. With more than four years and over 2000 hours of file review time logged, Public Herald and File Team partners at #fileroom have gained a unique perspective about how to conduct, decipher, and aggregate internal files from the Pennsylvania Department of Environmental Protection. There is an enormous learning curve to understand the information presented within these public records. Once you’ve unsealed this type of record it becomes clear that the information enclosed is difficult to interpret and how few people are able or even permitted to look inside them. With the publication of this “How-to Review” guide, it’s our hope at #filroom that less of the public will have to struggle to understand, access, and interpret these complex public records. From the start, our work aims toward greater transparency on behalf of the public interest. Available in print and digital form, this document serves as a how-to guide from our experiences with files held by the Pennsylvania Department of Environmental Protection, particularly with Oil & Gas and Waste Management Offices. By presenting examples files, commonly encountered situations, coupled with abstracts and graphic annotation, this #fileroom pamphet makes sense of information hidden within these largely inaccessible, lengthy, inconsistent, and jargon laden documents. Susan Malone Regional Director Ron Schwartz Assistant Regional Director John Guth Regional Director Staci Gustafson Assistant Regional Director Marcus Kohl Regional Director Jim Miller Assistant Regional Director East Regional Office 208 West 3rd Street, Suite 101 Willimasport PA 17701-6448 (570) 327- 3636 You can mail, fax, deliver in person, or email (#fileroom recommends using email). Put your file review request on record so there is a paper trail. Make sure your request for records is specific and concise, identifying the files requested by name and category. How to Request an Informal File Review: There are three Regional Pennsylvania Department of Environmental Protection Oil and Gas Offices. Each office has unique operating procedures and only holds complaint files relavent to that Oil and Gas region. If you wish to view and obtain public records not held within your closest regional office, the DEP asserts that it is your responsibility to visit that office to gain access to those records. 400 Waterfront Drive Pittsburgh PA 15222-4745 (412) 442- 4000 Southwest Regional Office 230 Chestnut Street Meadville PA 16335-3481 (814) 332- 6945 Northwest Regional Office Find your PADEP Regional Oil & Gas Office RTK vs. INFORMAL FILE REVIEW Right to Know Requests (RTK) RTK requests fall under the Right to Know Law (Act 3) of RIGHT-TO-KNOW (RTK) INFORMAL FILE REVIEW 2008, which was heavily amended in 2013 and is governed by the Open Records Office. In short, any and all File Review appointment can be scheduled 2 weeks prior to the review in most cases (SWRO is typically slower). documents are considered to be public unless the agency 25 cents per page, physical or electronic copy. Free scanning can be an option. Free scanning, 15-25 cents per page for physical copy. can redact the exempt portions of a DOCUMENT and still Request can be denied using exemptions in the law. In our experience at #fileroom we’ve been able to review documents denied to RTKs. Formal application & approval process may take longer to complete. or organization can definitively explain why a set of documents is exempt under the law. Even if certain portions of a request are considered exempt, the open records office provide the information. To understand more about all 30 exemptions under the law, we recommend reading through Pennsylvania NewsMedia Association website. The law provides a civil penalty of up to $1,500 if an Office of Open Records is involved and generally favors the public interest. Fewer redactions are made inside the record. Office of Open Records is not involved for the review. Redactions are made without clear oversight, are inconsistent and sometimes incorrect. Agency denies access to a public record in bad faith DEP is subject to penalty and fines if files are incomplete. There’s no clear accountability for the mishandling of files during informal reviews. Informal File Reviews and up to $500 per day when an Agency does not promptly comply with a court order to release records under the act. An informal file review will yield the same results as RTK requests in most cases, and in some cases yield more or less files: this all depends on your knowledge of those files. Make sure when you file an RTK request you are seeking records and not just asking questions. The law governs the release of records, not the answering of questions. For informal file reviews DEP often answers more questions. There is more flexibility for both the reviewer and the Department during an informal review which #fileroom has found to be favorable if demands are clear and concise. Official PADEP File Review Guidelines: You will need to provide valid identification when arriving for your appointment, such as a Pennsylvania driver’s license, passport, voter registration or identification card. #fileroom experience with File Reviews: These official “file review guidelines” are sent via email confirmation of your appointment with a list of the files you will have for the review. No large bags, purses, totes, briefcases etc. will be allowed into the file review area. If you wish to bring your own scanner/copier, electrical outlets are available. DEP does not research or generate reports and a technical person will not be available to answer your questions. If you would like to speak with a technical person, please make arrangements directly with the program. Any requests to add additional files to your scheduled file review appointment must be received 2 weeks prior to the Monday before your file review. Files not outlined in your initial request cannot be pulled during your appointment. You will be given one record at a time to review. Please keep all pages in original sequential order and staple any documents where you removed the staples. DEP will allow you to copy a reasonable number of pages per appointment at 15 cents a copy. If 20 or less copies are made, the copies are free. Payment must be made by check or money order payable to Commonwealth of Pennsylvania. Cash will only be accepted provided we receive the exact amount. Some records may be available only on microfiche or aperture cards, which are 50 cents a copy. Arrangements may be made for our staff to take large plans/maps to a public copy service. DEP has limited file room staff to prepare files for review. The Department requests that if you will not be able to keep your appointment please contact the office at least 48 hours prior to your scheduled date. If you fail to cancel your appointment you will not be able to reschedule an appointment for at least eight weeks. From 2011 - 2014, PA-DEP required reviewers to provide photo i.d. on their first visit, at which time the scanned the i.d. card and kept it on file. ------------------YOU DO NOT HAVE TO BE A PA RESIDENT TO REVIEW STATE PUBLIC RECORDS We’ve never had an issue with carrying “large bags”- which are necessary when carrying scanning equipment. (scanner, page 12). Recently, while making larger file set requests, the #fileroom team has been able to handle, scan, and analyze multiple files at a time. PA-DEP file clerks, who accomodate your review, can only provide minimal services on request. This means that when we have questions about missing or relevant files during a review, we have to schedule another review (and usually wait another month)to see any other files. Know Your Rights What speech is protected? The First Amendment protects many forms of expression, including “symbolic speech,” e.g.- wearing T-shirts with messages, carrying signs, etc. Are there limits on what I can say? Yes. The First Amendment broadly protects speech, including controversial viewpoints and criticism of virtually anything, including government officials, but there are limits. You can be arrested for encouraging “imminent” violence or other immediate illegal activities that threaten harm to people or property. Where can I exercise my speech rights? On any private property where the owner gives permission and in any area open to the public, such as streets, sidewalks, town squares or parks. Can property destruction ever be constitutionally protected? No. property destruction or criminal activity does not become constitutional simply because you do it while expressing a political message. Can police search bags and containers without probable cause? Yes, if you are entering what has been marked a secure area. But you can refuse and should be allowed to leave. Otherwise, police can only search bags if they have probable cause that it contains contraband, weapons or evidence of illegal activity. Can I approach other people/ STATE EMPLOYEES in public areas? Yes. You may approach people with documents, newspapers, petitions and requests. You cannot prevent people from getting by or walking away, and should leave them alone if asked to do so. Things to Keep in Mind: • Carry personal Identification • Avoid carrying drugs or weapons – even a pocketknife. If you are arrested, you could face additional charges for their possession. • If you have an outstanding warrant or problems with your immigration status, you may encounter problems if you are arrested. Can I record or photograph police in public? Yes. Pennsylvania law forbids audio recordings of what people say without their permission if they have a reasonable expectation of privacy, but that does not apply to police who are performing official duties in public. Police also can record or photograph you. Can STATE EMPLOYEES/police search you? If police have reasonable suspicion that you are involved in or about to commit criminal activity, they can frisk your outer clothing to search for weapons. ACLU of Pennsylvania info@aclupa.org Recommended Portable Scanners Epson WorkForce GT-1500 ~ $200.00 b/w scans at 20 pages per minute Canon imageFORMULA P-215 ~ $300.00 b/w scans at 30 pages per minute Fujitsu ScanSnap iX500 ~ $420.00 (wireless) color 25 pages per minute If you know you are only interested in obtaining a few pages of public files, copying them at the PA-DEP is cheaper and faster. If you plan to make mutiple file review visits, which are only six hours a visit, investing in a portable document scanner will save you both time and money in the long run. Scanning files also requires bringing a computer. If you do not have access to a laptop or scanner, many regional non-profit organizations have this equipment and may be willing to aid you in your review process. Once files are digitized in PDF format, they can be printed at a later time offsite, allowing further time to scan more files. If you need immediate assistance for a review please contact the #fileroom team at publicfiles.org/contact. Background Conditions in Complaint Files We apoligize that this section is not completed at this time. You are reviewing a draft copy of the “#fileroom: HOW-TO REVIEW” guide on Complait Files. If you have suggestions or comments please do any one of the following: email your thoughts to info@publicherald.org, submit your inquiry to publicfiles.org/contact, or mail in your comments from this page to Public Herald, PO BOX 488, Coudersport, PA 16915. NOTES: COMPLAINT FILES ARE CREATED AS A RESULT OF OIL & GAS LAW § 3218, A.K.A. THE PRESUMPTION OF LIABILITY ACT 13- § 3218.  Protection of water supplies. (a)  General rule.--In addition to the requirements of subsection (c.1), a well operator who affects a public or private water supply by pollution or diminution shall restore or replace the affected supply with an alternate source of water adequate in quantity or quality for the purposes served by the supply. The department shall ensure that the quality of a restored or replaced water supply meets the standards established under the act of May 1, 1984 (P.L.206, No.43), known as the Pennsylvania Safe DRINKING WATER Act, or is comparable to the quality of the water supply before it was affected by the operator if that water supply exceeded those standards. The Environmental Quality Board shall promulgate regulations necessary to meet the requirements of this subsection. (b)  Pollution or diminution of water supply.--A landowner or water purveyor suffering pollution or diminution of a water supply as a result of the drilling, alteration or operation of an oil or gas well may so notify the department and request that an investigation be conducted. Within ten days of notification, the department shall investigate the claim and make a determination within 45 days following notification. If the department finds that the pollution or diminution was caused by drilling, alteration or operation activities or if it presumes the well operator responsible for pollution under subsection (c), the department shall issue orders to the well operator necessary to assure compliance with subsection (a), including orders requiring temporary replacement of a water supply where it is determined that pollution or diminution may be of limited duration. (b.1)  (Reserved). (b.2)  Telephone number.--The department shall establish a single Statewide toll-free telephone number that persons may use to report cases of water contamination which may be associated with the development of oil and gas resources. The Statewide toll-free telephone number shall be provided in a conspicuous manner in the notification required under section 3211(b) (relating to well permits) and on the department’s Internet website. (i)  the water supply is within 1,000 feet of an oil or gas well; and (ii)  the pollution occurred within six months after completion of drilling or alteration of the oil or gas well; or (2)  in the case of an unconventional well: (i)  the water supply is within 2,500 feet of the unconventional vertical well bore; and (ii)  the pollution occurred within 12 months of the later of completion, drilling, stimulation or alteration of the unconventional well. (c.1)  Requirement.--If the affected water supply is within the rebuttable presumption area as provided in subsection (c) and the rebuttable presumption applies, the operator shall provide a temporary water supply if the water user is without a readily available alternative source of water. The temporary water supply provided under this subsection shall be adequate in quantity and quality for the purposes served by the supply. (d)  Defenses.--To rebut the presumption established under subsection (c), a well operator must affirmatively prove any of the following: (1)  except as set forth in paragraph (2): (i)  the pollution existed prior to the drilling or alteration activity as determined by a predrilling or prealteration SURVEY ; (ii)  the landowner or water purveyor refused to allow the operator access to conduct a predrilling or prealteration SURVEY ; (iii)  the water supply is not within 1,000 feet of the well; (iv)  the pollution occurred more than six months after completion of drilling or alteration activities; and (v)  the pollution occurred as the result of a cause other than the drilling or alteration activity; or (2)  in the case of an unconventional well: (i)  the pollution existed prior to the drilling, stimulation or alteration activity as determined by a predrilling or prealteration SURVEY ; (ii)  the landowner or water purveyor refused to allow the operator access to conduct a predrilling or prealteration SURVEY ; (iii)  the water supply is not within 2,500 feet of the unconventional vertical well bore; (iv)  the pollution occurred more than 12 months after completion of drilling or alteration activities; or (v)  the pollution occurred as the result of a cause other than the drilling or alteration activity. (e)  Independent certified laboratory.--An operator electing to preserve a defense under subsection (d)(1) or (2) shall retain an independent certified laboratory to conduct a predrilling or prealteration SURVEY of the water supply. A copy of SURVEY results shall be submitted to the department and the landowner or water purveyor in the manner prescribed by the department. (e.1)  Notice.--An operator of an unconventional well must provide written notice to the landowner or water purveyor indicating that the presumption established under subsection (c) may be void if the landowner or water purveyor refused to allow the operator access to conduct a predrilling or prealteration survey. Proof of written notice to the landowner or water purveyor shall be provided to the department for the operator to retain the protections under subsection (d)(2)(ii). Proof of written notice shall be presumed if provided in accordance with section 3212(a) (relating to permit objections). (f)  Other remedies preserved.--Nothing in this section shall prevent a landowner or water purveyor claiming pollution or diminution of a water supply from seeking any other remedy at law or in equity.   PA DEP Complaint Files DEP DEFINES A COMPLAINT AS: “...a formal allegation against a person, company or party requesting investigation by the Department claiming that an environmental law may have been broken or there is a risk of environmental harm.” COMPLAINT CATEGORIES DEP files complaints into three categories: water, general, and in some extreme, rare or unknown instances, pollution. Water complaints deal mostly with drinking water and general complaints deal with everything else, however that doesn’t mean that general complaints don’t also deal with water. There’s no consistency as to why a pollution complaint is filed in its own category, and they’re found within water or general complaint folders. COMPLAINT MAPS It’s important to know DEP does not aggregate data at the request of the public or press. Only during a Gas Migration Investigation or internal study has DEP attempted to organize data in order to make a conclusion. Because of this problem, Public Herald worked with FracTracker Alliance to create the first-ever complaint map of Bradford County, PA to better realize the impact of fracking on drinking water supplies. This map and related files can be found on PUBLICFILES.ORG/COMPLAINTS. Public Herald and Fractracker will be publishing more than a dozen additional county maps and their complaint records to #fileroom in the near future.* COMPLAINT FLOW* After a complaint has been made, and the service representative has deemed the complaint regulated by PA DEP, it gets assigned to an interdepartmental program (or programs when a joint investigation is merited) within the Department of Enviromental Protection. These Programs are: Air Quality, Waste Management, Water Management, Water Supply Management, Envrionmental Clean-up, and Soil & Waterways. *SEE FLOWCHART GRAPHIC FROM DEP COMPLAINT MANUAL. If you plan to use this map for your research or NGO, here is how we request that you cite this content: “Bradford County Complaint Map” of DEP records collected by Public Herald at #fileroom. Map by FracTracker Alliance on FracTracker.org. *This map is not available during a DEP file review, but you can contribute to it at #fileroom. Please send word to publicfiles.org/contact. I COWLAINT FLOW CHART REG ULATED I NON-REGULATED Complaint Information I When applicable Asmgu Prugmm(s) 8: Izmir.) Pro?de complainant wi?-l agcucy, etc. Assigl Prio?ty Level iru'orma?on. If anonymous Iv complaixmrt SR. Print Form Sand 10 Progrmn I makc the I A rcfen?nl. Field Inspector Investigates Noti?es F1115 Out Complamt Form Another 4 Referral To: I Conclusion: Violation Another Agni-nay, clc. I haspeclor Makcs Fill Out Complaint 1 Form Na NOV Sent, but if permitted facility makc Efacts Enu'y Efams Baby I I Mala: copy of form .5: Sand 10 SR. Sands To SR. WATER COMPLAINTS PA DEP field responses are at the assigned Superviors discretion and can include: PRIORITY 1 PRIORITY 2 (most often used) PRIORITY 3 PRIORITY 4 Please see the “Complaint Manual” on publicfiles.org re: priority levels. Date that a complainant first made contact with DEP to file a complaint. Once a homeowner submits a DRINKING WATER complaint the Department has 45 days to make a determination about whether oil and gas activities have impacted the water supply. The inspector is the DEP employee who goes out into the field to investigate the complaint claim. The Supervisor directly oversees the inspector and makes decisions based on the inspector’s findings in the field. Comments and descriptions are some of the most revealing sections within a complaint file. They are also heavily redacted by DEP so careful attention is needed to ensure the agency is not accidentally redacting public information. If inspector’s comments are not provided in your complaint you should request the record office provide them asap. The date by which DEP is legally mandated to respond to an offical Department Complaint. The date at which PADEP first took physical action on the complaint case. The date DEP made a determination for the complaint. In the case of this complaint the determination was made in violation of the 45 day limit placed on the Department under the Oil & Gas Act. GENERAL COMPLAINTS Often personal or locational information will be blacked out of complaint files. This is not a state or federal law but only DEP interagency discretion. The Complaint ID number is a 6 digit code that DEP uses to identify specific complaints, not necesarily different events. There can be multiple complaints filed from the same event all under the same complaint number. Sometimes a complaint file will include the oil & gas operator in direct vicinity of the complainant, usually based on whether or not the complainant knows this off hand or if DEP makes note. This is public information yet DEP typically does not provide the name of the nearby well operator in the complaint file. 99% of the time, in hundreds of complaint records we’ve seen at #fileroom, files are marked with “NO” violation. So, it’s surprising when we see one marked “YES.” Determination Letter A predrill test is mainly what you’re going to see referenced in determinations. Since some predrill tests have been excluded in the Department’s conclusions, it’s important to record these results and compare them with other complaint determinations. In this letter you find out what determination DEP made for whether or not drilling has impacted the water supply. In the majority of water complaint cases DEP submits non-impact letters of determination. DEP Written Notifications This is an example letter wherein DEP notifies nearby inhabitants that the Department grants an exception to guidelines of proximity of drilling to a public water supply (municipal water), not a private water well. This cites the Pennsylvania Oil and Gas Act (Act 223), but it fails to indicate whether predrill tests will be performed and sent to residents who depend on the water supply. According to landowner reports, companies communicate to the public that the Department’s actions are voluntary when in fact these are steps required by law. In this case the Department is following the law as opposed to making a discretionary decision. Laboratory Analytical Reports (WATER testing) DEP has been found to provide incomplete laboratory results and should be held to providing a complete list of results whenever possible. Public Herald has reviewed complaint records and laboratory results from DEP since 2010. In this time, they’ve come across a general list of contaminants that are commonly increased in connection to impact from oil and gas drilling. These contaminants are (random order): methane, ethane, propane, arsenic, barium, strontium, manganese, iron, total dissolved solids (TDS), aluminum, acetone, napthalene, radium-226, radium-228, lithium, sodium, uranium, thorium, bromide, trihalomethanes (which comes from mixing bromide and chlorine), ammonium, iodide, lead, antimony; BTEX: benzene, toluene, xylene, and ethylbenzene. DEP often does not test for a complete list of contaminants, instead using “suite codes” to filter limited test results during their complaint investigations. A specific complainant would have to make requests to DEP in order to receive a test that includes any and all posible contaminants during an investigation. The EPA provides a comprehensive guide on its website to review the Primary Maximum Contaminant Levels (MCL) for drinking water, and the Secondary Maximum Contaminant Levels (SMCL). Please see the following website for more information: http://water.epa.gov/drink/contaminants/#List APPENDIx I Checklist while Reviewing: 1. What is the county and municipality? 2. What is the complaint ID number? 3. Is there a noted violation? 4. Is there a Determination Letter? If so, what is the determination? 5. What is the date issued, date responded and date resolved? 6. What is being redacted? 7. Whom are the inspector and supervisor? 8. Is a laboratory analysis attached? 9. What is the name of the well pad related to the complaint? If number 3. and 4. are a concern we suggest finding the name of the well pad and doing a file review of the well permit(s) to see what the inspection/violation reports look like. APPENDIx II NOTES: If you wish to contribute information to the #fileroom ditigal database with work from your own files reviews, please contact us providing the type of files you have reviewed and the regional office visited. Once our team approves your submission we should be able to incorporate your files into publicfiles.org within 7 days. All volunteer requests can be submitted to Public Herald. PUBLIC HERALD PO BOX 488 Coudersport, PA 16915 Phone: 419-202-8503 email: info@publicherald.org This #fileroom guide is made possible by the creative efforts of John Nicholson with help from Joshua Pribanic and Melissa Troutman. Funding was provided in part from public donations to Public Herald and individual donations from File Team members. #fileroom would like to thank the following people for volunteering their time and money to collect complaint files: Joshua Pribanic, Melissa Troumtan, John Nicholson, and Oz Gerard. THIS BOOK IS AVAILABLE FOR ANY DONATION COPYLEFT NON-COMMERCIAL ZERO COPYRIGHT Intellectual copyright is theft.