Monday, February 28, 2011

UPDATED How the NYT Drilling Article Makes Space Choices and Misleads, NYT Part 5

[NOTE TO READERS: Please read first the post of February 27th entitled: "Statement Regarding Sunday NYT February 27th Drilling Article." I am the former Secretary of the Pennsylvania Department of Environmental Protection. This post is one of a series of 7 that follow the Statement and examines the reporting and the reporter's narrative of lax regulation and lax oversight of gas drilling in Pennsylvania.]

In the main 5 page story, a huge amount of space, as the reporter relentlessly builds the case for the narrative of lax regulation and oversight in Pennsylvania, there is one sentence that is not consistent with the narrative: "Recently, Pennsylvania has tried to increase its oversight, doubling the number of regulators, improving the well-design requirements and sharply decreasing how much drilling waste many treatment plants can accept or release." 

Even this sentence is cleverly constructed.  "DEP has tried to increase its oversight..."

May be we were able to do so. Or may be were not. But we tried, according to the NYT.  Actually inspections at Marcellus sites increased 100% in 2010, as one of many data points not reported.  Sounds like more than trying.

The staff increases began in early 2009.  Not so recently.  They continued in 2010 when DEP hired twice at the direction of Governor Rendell and me. 
DEP increased staff from 88 in September 2008 to 202 in January to 2011.  The article never gives the staffing numbers.  It says "doubling."  Doubling of 88 would be 176.   Again DEP gas oversight staff increased to 202. 

The above sentence also uses vague language and does not convey what was taking place in the actual law making and rulemaking process and when it was taking place.  Starting in 2009 2 major public rulemakings with proposed rules and much process began: the drilling wastewater rule and the gas well standards rule.  The publication of the drilling wastewater proposed rule in 2009 was a factor driving forward the development of drilling reuse and recycling technology.  These major rulemakings impacted industry behavior before they were completed and impacted DEP permitting before they were completed, as is explained shortly.

The above sentence completely ignores the requirement established in 2008 for drilling companies to file a water plan with the application to drill.  Water plans must specify how much water will be used and where it will be obtained.  If the withdrawal is from a river or stream, the stream is assumed to be in a drought condition when deciding whether to permit the withdrawal.  Only if the withdrawal would not damage the stream in drought is the withdrawal allowed.  It is a tough, protective requirement.

The Water Plan requirement was implemented, because DEP documented 2 cases that year of gas drilling companies withdrawing so much water that the withdrawal harmed the streams.

As soon as that problem was identified, DEP acted to put in place the water plan requirement.  That action contradicts a theme of lax regulation and lax oversight so the reporter does not mention the Water Plan requirement for applications to drill.

After this one sentence, then its back on message and back with a vengeance to the narrative of lax oversight as the article moves to its conclusion.

But this gets even more interesting.  Not in the main article, but in something called the "document reader" to which I doubt very many readers find their way, the reporter writes this: 

"In response to repeated problems with T.D.S.'s a salty mix of dissolved minerals and elements from drilling wastewater, in the Monongahela River, state officials wrote new regulations intended to stop this contamination. On August 21, 2010, a new and strict regulation took effect that state officials say ensures that no water supply is at risk for not meeting the safe drinking water standard for total dissolved solids. The state Department of Environmental Protection has actually been incorporating this standard into permits since the mid-2009.  The new regulation requires new or expanding dischargers to meet the T.D.S. standard of 500 milligrams per liter in the water they release into rivers. Existing dischargers are allowed to maintain their output levels so long as the receiving stream does not approach the T.D.S. limit.  However, these new regulations do not place any binding limits on contaminants like radium.

So here we find a materially different portrait of state regulation.  We also find out that the "state Department of Environmental Protection has actually been incorporating this [new tough drilling wastewater] standard into permits since mid-2009."  DEP actually implemented this standard for permitting more than a year before the rulemaking went final in August 2010.  Excuse the sarcasm: more lax regulation and lax oversight.

While back at the story that the overwhelming number of readers read, readers are told that DEP "Recently tried to increase its oversight..." 

Very different portraits.  One version holds up the narrative of lax regulation and oversight.  The other begins to develop a more complex, fuller picture, does it not?  One is in the main article.  The other is in the "document reader."  For sure, choices have to be made about space.  It is interesting to see how this reporter makes them.


  1. Very good rebuttal, however, it is partly a war of semantics. Here the government ASSUMES that simply hiring more people equals more oversight, and we know from history that is not true. You can have all the regulations in the world, but how many companies have been charged with breaking regulations? Any? Do we then assume that no companies are breaking regulations? That's a BIG assumption.
    However, I do agree that there definitely is room for debate. If the article were DELIBERATELY fALSE, then it WOULD be 'actionable'. It's more the point that the article is just skewered to one side that makes it NOT legally accountable. If it were blatantly untrue, then Penn should be filing a lawsuit.

  2. You can have strong rules and lots of regulators and that does not good if political leadership does not want to enforce the rules. I agree with your point to that degree.

    Please look at the NYT Part 3 post for a partial list of all the enforcement actions that PA DEP regulators took against the industry. And each of them were ignored by the NYT.

    Pennsylvania more aggressively enforced its rules than any state in the nation. And we strengthened greatly those rules since 2008. And we increased staff from 88 to 202.

    On the issue of what is libelous in American law, the answer for public figures at least is "not much." Don't get in the arena if you are relying on the libel laws to protect your reputation. They will not. The libel laws in most of Europe are much different and tend to protect much less those who do the writing and much more those who are written about.

    While I am not 100% sure, I don't believe the Commonwealth of Pennsylvania could sue under th