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Bear in the Woods: Environmental Law Blog

Monday, November 19, 2012

DEP sends strong warning that expedited cannot mean slapdash

The flurry of activities occurring in the Marcellus Shale regions of Pennsylvania, such as well pad, pipeline and compressor station development, could do major violence to our water resources if activities are not carefully regulated.

Fortunately, the Pennsylvania Department of Environmental Protection (DEP) requires persons proposing to disturb five acres or more of land in connection with such activities to obtain coverage under an erosion and sediment control permit. The terms and conditions of this permit are intended to protect our water resources.

Unfortunately, DEP offers an expedited review process under which applicants are guaranteed permit coverage within 14 business days. To qualify for an expedited permit, applications must be prepared and certified by a licensed professional registered in Pennsylvania who has attended a mandatory training.

PennFuture does not support the expedited permit review process because we believe every application should receive a complete technical review from DEP staff to ensure that oil and gas activities will not degrade rivers, streams, and other bodies of water. Nevertheless, we were pleased to find some encouraging news related to the expedited permit review process on the Environmental Hearing Board docket last week.

Attached to a notice of appeal filed by AECOM Technical Services Inc. was a letter suspending an AECOM employee's ability to utilize the expedited permit review process in the future based on an application she prepared for the Williams Field Services Company, LLC Springville Gathering Line Project in which she allegedly failed to identify a number of water resources, resulting in a whopping 34 unauthorized impacts to wetlands and streams, at least some of which appear to have been entitled to special protection.

DEP also appeared to raise the possibility of a criminal investigation when it invoked the provisions of Pennsylvania law that relate to false swearing and unsworn falsification to authorities. The suspension and implied threat of criminal prosecution should send a strong message to all professionals: They must comply with the law when preparing erosion and sediment control permit applications.

PennFuture hopes that all licensed professionals registered in Pennsylvania, as well as the gas companies that retain their services, are listening carefully.

Thursday, October 18, 2012

Clean Water Act Turns 40

Forty years ago Congress, in bipartisan fashion, overrode a veto by President Richard M. Nixon and enacted the Clean Water Act of 1972. It has made a dramatic improvement in our lives, and that of our children.

On its birthday, I found myself reflecting on two aspects of this complex law known as the Clean Water Act — its technology-forcing nature, and its desire to achieve an impossible goal.

Congress did something extraordinary lo those many years ago — it knowingly designed a system that would likely put companies out of business in favor of cleaning up our nation's waterways. Congress did that by setting cleanup standards that were driven by technology — in some cases expensive technology — that would only be able to be afforded by some of the best performing companies in a specific industry. And it put what some would think was a draconian measure in place to save a dying patient — our nations waterways.

Section 402 of the Clean Water Act required persons to obtain permits in order to discharge pollutants into waters of the United States. The U.S. EPA was required to put conditions in those permits that limited the amount of pollutants that could be discharged. Those limits were to be initially based on existing technology that considered the economic condition of companies in a particular industry. As time went by, the limits would be lowered to reflect the best technology available to remove that pollutant from the waste discharge, with less concern for a company's ability to afford that technology. Congress knew there were companies that operated so inefficiently that if they were forced to internalize the actual cost of production by not using the environment as a free trash can, those companies would eventually go out of business — a bold and courageous decision, indeed. Congress knowingly chose to put those inefficient companies on the trash heap in favor of companies that were forced to internalize the cost of adopting these new technologies in order to properly manage their pollution.

The purpose of these technology-forcing provisions was to achieve a previously unheard of goal in environmental regulation — the goal of zero discharge of pollutants to waters of the United States. While progress has at times been slow, and the provisions of the Clean Water Act itself would not conceivably meet the goal — at a time when the Cuyahoga River was burning because of pollution on its surface, the zero discharge goal made an important and forceful statement about the seriousness of the task being given to the U.S. EPA: Clean up the waters of the United States or else. Many have credited this simple yet seemingly unachievable goal with much of the success achieved under the Clean Water Act over the past 40 years. Without this wind at the back of the EPA, many of the difficult decisions that the agency has made implementing the provisions of the Clean Water Act would no doubt have been that much more difficult — particularly during difficult economic times over the past four decades.

Reflecting on the successes achieved, it should not be lost that the way in which the Clean Water Act went about achieving its goals did not just put some underperforming companies out of business, it also put people to work. It encouraged development of an entire industry that we now take for granted — an industry of scientists, engineers, inventors, mechanics, and other good-paying careers built around one goal — removing pollutants from the waters that we use to fish, swim, and drink.

The Clean Water Act turns 40, and we are that much better for it. It's difficult not to wonder whether those in Congress today would have the ability and will to construct and enact such a monumental piece of public health legislation.

Tuesday, October 02, 2012

US Supreme Court Supports Clinton’s Roadless Rule

The Supreme Court has turned away an appeal challenging a Clinton-era rule that prohibits road development on about one-third of all National Forest System lands. The Final Rule has some limited impact within the bounds of Penn’s Woods –25,000 of the 513,000 acres that comprise Allegheny National Forest are inventoried roadless areas that will be protected from further road construction.

The Forest Service published the Rule on January 12, 2001, establishing prohibitions on road construction, road reconstruction, and timber harvesting on 58.5 million acres of inventoried areas of National Forest System lands that are currently roadless (the Forest Service manages more than 190 million acres of land). The intent of the Rule is to provide lasting protection for inventoried roadless areas. Inventoried roadless areas provide clean drinking water and function as biological strongholds for populations of threatened and endangered species. They also provide opportunities for dispersed outdoor recreation, which continue to diminish as open space and natural settings are developed around these areas. The inventoried roadless areas comprise only 2 percent of the land base in the continental United States but are found within 661 of the over 2,000 major watersheds in the nation and provide many social and ecological benefits.

The state of Wyoming and the Colorado Mining Association filed suit challenging the Final Rule in the United States District Court in Wyoming. The District Court struck down the Rule, accepting arguments made by those opposed to the protections that the National Forest Service had improperly exercised powers reserved to Congress under the 1964 Wilderness Act by using the roadless rule to effectively turn National Forest lands into de facto wilderness areas.

On October 21, 2011, the US Court of Appeals for the 10th Circuit overturned the District Court’s ruling, finding that there was a distinct and meaningful difference between the uses to which public land could be put as wilderness areas compared with inventoried roadless areas. The 10th Circuit recognized that roadless areas allow many more activities than do wilderness areas, such as the use of motorized vehicles in roadless areas that is not allowed in wilderness areas. Based on those distinctions, the Circuit Court concluded that the roadless area protections were a proper exercise of the Forest Service’s authority to manage the National Forest system, and not an infringement on Congressional power under the 1964 Wilderness Act.

Yesterday, the US Supreme Court, in a summary order (meaning without an opinion), rejected the attempts of the Mining Association and others to have it review the 10th Circuit Court decision, which will now stand, ensuring the continued protection of inventoried roadless areas of National Forest System lands for the foreseeable future.

Friday, September 28, 2012

New York Monitors Groundwater for Methane To Prepare for Shale Gas Development

The U.S. Geological Survey (USGS) and New York State Department of Environmental Conservation (NYDEC) recently completed a study of dissolved methane in groundwater.

Unlike Pennsylvania, New York is taking steps to document the existence of dissolved methane in groundwater before gas development in Marcellus and Utica shale occurs.

The report contains some good background information on methane and groundwater. For example, the report explains the basics on how methane dissolves and is released from water. Methane can dissolve in water just like carbon dioxide gas used in carbonated beverages. When pressure is reduced, as occurs when the top is removed from a bottle, gas comes out of the solution and causes bubbling and fizzing in the beverage. The same occurs in groundwater. Methane can be dissolved in water under extreme pressure beneath many layers of rock. When that rock is fractured and the water enters a location under less pressure, such as a water well, the dissolved gas can be released, resulting in bubbling water. If the gas is released in a closed structure, such as a home or water tank, the concentration of gas can become flammable and explosive.

The report also explains the scientific basis for safety levels used by state and federal officials. Methane reaches saturation in water at 28 milligrams per liter (mg/L) at atmospheric pressure and becomes flammable in air at about 5 percent by volume. For this reason, the federal government recommends that action be taken to closely monitor water that contains methane concentrations from 10 to 28 mg/L (or 3 to 5 percent by volume in air). Concentrations of methane less than 10 mg/L in water (or 1 to 3 percent by volume in air) are not as great a concern, but the gas should be monitored to ensure no buildup over time.

The study is comprehensive — involving 239 locations and encompassing eight of 14 major river basins in the state. For samples collected through 2011, the study concluded that a full 91 percent of wells over varied conditions throughout the state contain methane below the federal action level of 10 mg/L, and that nearly half (47 percent) contain no measurable amounts of methane. In only five cases (2 percent of the total number of samples) did the methane concentration exceed 28 mg/l.
Interestingly, the report broke down the data dependent upon whether the water samples came from unconsolidated or consolidated (bedrock) aquifers. Methane was found in both, but in varying numbers. Effectively no methane could be found in a full 93 percent of samples collected from unconsolidated aquifers, and only 1 percent had levels exceeding 28 mg/l. Even in wells drilled into bedrock, where one would expect to find methane dissolved in water, 73 percent effectively had no methane, while 4 percent contained concentrations greater than 28 mg/l. Three of the four highest methane concentrations all came from wells drilled into one particular type of shale. These findings appear to suggest that the location and depth of groundwater wells might provide a screening tool for determining where funds should be expended to test for methane concentrations in water.

It is unfortunate and contrary to the public interest that the Pennsylvania Department of Environmental Protection (DEP) performed no baseline monitoring similar to that being done by the NYDEC. Although the DEP has a statutory obligation to investigate individual claims that drilling contaminated drinking water supplies, each such claim and investigation consumes DEP resources. And while drilling companies are obligated to offer to collect samples from drinking water sources within a specified distance of a proposed gas well, the companies have no authority to require that a sample be collected, and the specified distance was established by the General Assembly arbitrarily and not based on any factual or scientific data. Further, the sampling requirement is based on a distance horizontally from the well, and does not account for laterals that will eventually be used to fracture the shale. If a claim of contamination is made by a resident and DEP concludes that it cannot prove that the drilling caused the contaminated water in the well, then the landowner is left to pursue an action on his or her own against what is likely to be a well-funded defendant. Alternatively, the company may choose to spend resources to satisfy the complainant as a matter of doing business even though it genuinely believes that it has no responsibility for the contamination. Even if the landowner has funds to pursue an action or if the government steps in because more than one home has been allegedly affected, the result will likely be a substantial expenditure of public and private resources resolving the dispute. None of these scenarios is an efficient means of doing business or protecting the public health and safety.

By developing baseline data of dissolved methane content in its aquifers before shale gas development begins, New York is serving the interests of both residents and the industry. The study will not resolve all disagreements, but it will provide substantial data against which to compare the impact of the industry when it arrives and should lead to the more efficient resolution of individual disputes, particularly if New York couples the baseline data with adoption of a law that requires gas companies to collect water samples of nearby drinking water supplies and requires that residents submit to that sampling or document well conditions that prevent the sampling from taking place.

Thursday, August 23, 2012

Show us the revenue!

A few months ago, the Pennsylvania Department of Conservation and Natural Resources (DCNR) issued a policy statement on "Shale Gas Development Beneath Publicly-Owned Streambeds."

The policy begins by stating: "Gas development companies interested in drilling beneath publicly-owned streambeds must obtain a gas lease from [DCNR] prior to drilling[.]" The policy statement notes that DCNR, in consultation with the Pennsylvania Department of Environmental Protection (DEP), has developed a list of publicly-owned streambeds.

Also posted on DCNR's Web page are two maps showing the locations of the publicly owned streambeds on the DCNR-DEP list. The first is a single-frame map dated February 28, 2012 that includes shading that reveals the extent of the Marcellus Shale formation.

The second is an interactive map that allows the viewer to select particular streams and zoom in to see the precise location of the streambed (and underlying gas) claimed by the Commonwealth.

This is a big deal.

First, it's our property, and nobody may enter and occupy our property without our permission. In Pennsylvania, although it is lawful for a well drilled on one property to pull in natural gas from beneath a neighboring property, one may not drill a well into property owned by someone else without permission, usually in the form of a lease. So, a gas company that has drilled beneath a publicly-owned streambed without first obtaining a lease from the Commonwealth is occupying our public property without permission —which is a polite way to say "trespassing."

Second, there is a lot of money at stake. In 2010, DCNR got a $6.15 million bonus payment ($4,000 per acre), plus a 20 percent royalty for a lease with Chesapeake Energy authorizing the extraction of gas beneath 1,500 acres of a seven mile stretch of the Susquehanna River in Bradford County. At the time, DCNR estimated that the Commonwealth owns the mineral rights beneath at least 25,000 additional acres of rivers and streams.

Take a quick look at DCNR's maps. Given the extent of the streambeds claimed by the Commonwealth, the number of wells drilled in the Marcellus Shale, and the extraordinary length of most horizontal gas wells (several thousand feet), it would be a miracle if every horizontal well drilled into the Marcellus Shale managed to avoid areas beneath the streambeds DCNR identifies as publicly-owned.

With our current budgetary straits, this is no time to subsidize rich gas companies by allowing them — for free — to occupy public property, and to collect and sell the public's natural gas.

So we ask:

How many wells have been drilled beneath publicly owned streambeds in Pennsylvania without a lease? In other words, how many gas wells are occupying public property without the public's permission and without compensation?

What is the Commonwealth doing about such wells?

Show us the leases, and (cue Cuba Gooding Jr.) show us the revenue!

Tuesday, August 21, 2012

Won’t you be my neighbor? Court says no.

A divided federal appeals court (US Federal Court of Appeals for the DC Circuit) handed down its ruling today addressing arguments that federal regulators went too far in adopting the Cross State Air Pollution Rule, which established new regulations to control air pollution throughout portions of the eastern United States.

The regulations at issue were adopted under the federal Clean Air Act's "good neighbor" provision, which requires upwind states to prevent sources within their borders from emitting air pollutants in amounts that contribute significantly to a downwind state's nonattainment of federal air quality standards. Its purpose is to establish a workable approach to interstate air pollution issues that have huge public health implications.

By a vote of 2-1, the court found that the Environmental Protection Agency had overstepped its legal authority in developing the rule. As a result, the Court vacated the offending provisions.

This ruling raises several concerns. First, it creates uncertainty over the timing and magnitude of the emissions restrictions that ultimately will be imposed on sources in upwind states. Also, delays in establishing regulations and requirements to upgrade or build cleaner generation will result in foregone emissions reductions and will fail to send clear market signals to make investments in cleaner generation, such as natural gas, renewable energy, and efficiency.

The EPA must continue administering the provisions of its previously-adopted Clean Air Interstate Rule pending adoption of a valid replacement, or until the U.S. Supreme Court agrees to review this decision and overturns it.

EME Homer City Generation, L.P. v. EPA, No. 11-1302.

Wednesday, August 15, 2012

In This Case a Tie Does Not Result In a “Push”

In blackjack, typically when the dealer and a player get the same point total the result is a "push," meaning neither side wins.

In Robinson Township, et al. v. Commonwealth of Pennsylvania, 2012 Commonwealth LEXIS 222 (July 26, 2012), the Pennsylvania Commonwealth Court struck down important aspects of Pennsylvania’s new oil and gas law, known colloquially as Act 13. It held that the General Assembly: 1) improperly sought to compel local government to allow industrial gas operations in nearly all zoned -- including residential -- districts, and 2) failed to establish adequate standards for instances when the Department of Environmental Protection (DEP) may waive setback requirements designed to protect streams and other surface waters.

The Corbett administration appealed that decision to the state Supreme Court and is looking for something more than a "push." Here’s why.

The Commonwealth Court is comprised by law of nine "commissioned" judges. One of those nine, Judge Mary Hannah Leavitt, recused herself and therefore did not participate in the decision. By rule, seven judges are impaneled to hear a case en banc, meaning the entire court. Judge Renee Cohn Jubilerer, wife of former president pro tempore of the Senate (R — District 30), was not on the panel of seven. The decision to toss out parts of Act 13 was made by a vote of 4-3, with Democrats in the majority. Internal operating rules of the court provide that any "commissioned" judge not on the panel may file an "objection" to the majority opinion, and if that vote results in a tie of all "commissioned" judges, the opinion has to say so. If one looks at footnote one of the majority opinion, it explains that the opinion was being filed under a specific rule "because ... the vote of the remaining commissioned judges on those Counts resulted in a tie." So, the majority that struck down portions of Act 13 had the votes to do so because of the judges who were impaneled for this particular en banc hearing. The actual vote of "commissioned" judges was 4-4.

The Pennsylvania Supreme Court, on the other hand, is made up of seven justices. One of those seven, Justice Joan Orie Melvin, is currently suspended from participating on the court because of felony charges alleging that her judicial staff improperly worked on her 2003 and 2009 election bids. (Joan, of course, is the sister of state Sen. Jane Orie, who was convicted of ethics violations, theft of services, and forgery, and was sentenced to prison). That leaves six justices — split evenly between Democrats and Republicans — to hear the Commonwealth's Robinson appeal. Since Justice Orie Melvin’s suspension, the Supremes have split evenly on two different cases. It is not inconceivable that the same could happen in the Robinson appeal. A tie vote in the Supreme Court would mean that the majority vote of the Commonwealth Court would be affirmed.

And that is why the Corbett administration, which crafted and pushed through the overbearing zoning provisions of Act 13, is hoping for something other than a "push" before the Supreme Court. If the Supreme Court votes 3-3, the Corbett administration loses.