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Bear in the Woods: Environmental Law Blog

Wednesday, December 10, 2014

Impoundments are the pits (Part I)

According to the non-profit mapping organization SkyTruth, Pennsylvania is home to 529 impoundments that store fluids related to oil and gas production activities. StateImpact recently reported that the Pennsylvania Department of Environmental Protection (DEP) does not know how many of these impoundments store wastewater and how many store "fresh water" (a category of water that, as this post will explain, is less fresh than you might hope).

Given recent incidents involving groundwater pollution from several Range Resources impoundments in Washington County and an EQT impoundment in Tioga County, the lack of an inventory of Pennsylvania's impoundments is cause for concern. In fact, there are more than a few reasons to worry about the use of impoundments for oil and gas development in Pennsylvania. This post will summarize the different types of impoundments currently in use in, and explain how each is regulated (or not regulated). Part II of this post, to follow at a later date, will discuss how pending DEP regulatory revisions could - and should - change the status quo for impoundments.

In general, there are four kinds of impoundments that oil and gas operators can use in Pennsylvania to store fluids used in or generated by production activities: (1) wastewater "pits" that serve specific well sites, (2) centralized wastewater impoundments that serve multiple well sites, (3) wastewater impoundments used in off-well-site processing operations, and (4) "fresh water" impoundments.

Well Site "Pits"

"Pits" are well-site impoundments used to store drilling and fracking wastes, a category of waste that, incredibly if not surprisingly, has been exempted from federal hazardous waste regulations. By grace of this exemption, such waste is regulated under the Pennsylvania Solid Waste Management Act (SWMA) as "residual waste." Although the word "pit" suggests a structure dug into the ground, "pits" can also be above-ground structures with raised embankments. "Pits" are regulated mainly under a set of standards in 25 Pa. Code 78.56 that were last updated in 2001 and are not adequate to protect groundwater from the contaminants in production wastes like "flowback" fluids. For example, the standards do not require groundwater monitoring wells, double-liners, or any form of leak detection. Section 3273.1 of Act 13 exempts well-site "pits" from permitting requirements under the SWMA or public notice requirements if a well has been permitted on the site. Consequently, the only permits required for "pits" are stormwater control authorizations (under the general permit ESCGP-2) for the earth disturbance. The leaky Tioga County EQT impoundment was a well-site "pit." The DEP does not maintain a comprehensive list of these impoundments.

Centralized Wastewater Impoundments

"Centralized impoundments" or "centralized impoundment dams" are wastewater impoundments that serve multiple well sites. Whether built at a well site or at an entirely separate location, centralized impoundments are considered by the DEP to be located "on" well sites for regulatory purposes, a fiction that the DEP uses to exempt these impoundments from its residual waste regulations at 25 Pa. Code 299.141-145. (Under 25 Pa. Code 287.2(g), impoundments "located on the well site" are regulated under oil and gas regulations instead of residual waste regulations). The DEP does, however, recognize that centralized impoundments are "dams" under the Pennsylvania Dam Safety and Encroachments Act (DSEA), and so requires individual permits for them, as well as double-liners, leak detection systems, groundwater monitoring, and compliance with the DSEA regulations at 25 Pa. Code Chapter 105.

Since 2008, the DEP has issued approximately 30 permits for centralized impoundments. Most of the Range Resources impoundments that leaked in Washington County were centralized impoundments (albeit ones apparently built to meet design and construction standards that the DEP has since updated).

Wastewater Impoundments Used in Off-Site Processing Operations

A third category of wastewater impoundments are impoundments owned and operated by companies that are not drillers - e.g., companies that have gotten into the business of storing, treating, and recycling wastewater from the oil and gas industry. These impoundments are regulated under the DEP's residual waste regulations and the DSEA regulations at 25 Pa. Code Chapter 105.

"Fresh Water" Impoundments 

There are two kinds of impoundments used to store "fresh water" for oil and gas operations in Pennsylvania: those that are "jurisdictional" to the DSEA (i.e., subject to regulation pursuant to section 693.4 of the DSEA) and those that are "nonjurisdictional" (i.e., not regulated under the DSEA). Fresh water impoundments are jurisdictional if their capacity exceeds 50 acre-feet (a little more than 16 million gallons), the depth of water at maximum capacity exceeds 15 feet, or the escape of water "may result in air, water or land pollution, or may result in danger to persons or property." Fresh water impoundments that do not exceed the acre-feet and depth criteria and are deemed not to pose pollutional and safety threats are nonjurisdictional. 

Jurisdictional fresh water impoundments require permits under the DSEA and must comply with the design and construction standards at 25 Pa. Code Chapter 105. Nonjurisdictional impoundments need only stormwater construction permits and currently are not subject to regulatory standards. (In lieu of regulatory standards, the DEP has "recommended standards" for nonjurisdictional impoundments). Fresh water impoundments of both kinds are sometimes co-located with well sites and sometimes separately located. 

A DEP residual waste general permit known as WMGR123 allows processed gas well wastewater to be stored in fresh water impoundments if it meets certain pollutant limits (in which case it is considered "de-wasted" and thus "fresh" for these purposes). WMGR123  does not, however, require ongoing testing of the stored water to determine whether evaporation and stratification result in those limits being exceeded. Nor does the DEP  consider nonjurisdictional fresh water impoundments that store "de-wasted" water to be impoundments that "may result in air, water or land pollution, or may result in danger to persons or property." The DEP appears to have a list of jurisdictional fresh water impoundments, but not of nonjurisdictional impoundments.

Mark Szybist is staff attorney for PennFuture and is based in Wilkes-Barre. Part II of this blog will be posted later this month or in January 2015.

Wednesday, November 19, 2014

PennFuture legal appeal leads to improvements in Pennsylvania stormwater program

               PennFuture has scored an important win that will help to improve water quality in Pennsylvania. On November 19, PennFuture and the Pennsylvania Department of Environmental Protection (“PADEP”) entered into a Stipulation of Settlement (“Settlement”) that will improve Pennsylvania’s program for preventing stormwater runoff from polluting our streams and rivers. 


               Before we get to the details of the legal case and its settlement, let’s start with a little bit of background. Although it’s easy to overlook, stormwater from rain and snow events is actually a significant cause of water pollution in our streams and rivers. As the precipitation runs down rooftops and over dirty streets and sidewalks, it collects pollutants like oil, fertilizers, litter, and pet waste. In areas that drain to the municipal separate storm sewer systems (“MS4s”) found in many Pennsylvania municipalities, that polluted runoff usually is carried directly into our streams and rivers without being treated.
                Addressing polluted runoff has become a focus of federal and state environmental officials recently. In 2003, the Environmental Protection Agency's (EPA) “Phase II” stormwater program extended stormwater permitting requirements to “Small MS4s,” thereby significantly increasing the number of municipalities required to obtain National Pollutant Discharge Elimination System (“NPDES”) permits for their MS4 systems. EPA has also limited the amount of pollution that certain Small MS4s can discharge into waters that have been classified as impaired. These limits are called wasteload allocations (“WLAs”) and are contained in Total Maximum Daily Load (“TMDL”) reports issued or approved by EPA.
Under Pennsylvania’s MS4 permitting process, municipalities may either apply for an individual MS4 permit or (if they qualify) for coverage under the general permit called PAG-13. Any municipality subject to a WLA is required to submit to PADEP as part of its permit application a “TMDL Plan” to explain how the municipality will comply with the pollutant limits. Under the current system, municipalities are permitted to submit their TMDL Plans in two parts: TMDL Strategies and TMDL Design Details. TMDL Strategies must be submitted with the application or notice of intent (“NOI”) seeking coverage under the permit; TMDL Design Details do not need to be submitted until one year after permit coverage is granted. Under the existing system, the requirement to submit a TMDL Plan does not affect a municipality’s eligibility for coverage under PAG-13.
PennFuture’s Appeal
                In July 2013, PennFuture filed an appeal of PADEP’s approval of coverage under the general permit PAG-13 for Upper Gwynedd Township’s Small MS4. (PA Environmental Hearing Board Docket No. 2013-105-L.) Upper Gwynedd Township had submitted to PADEP its TMDL Strategy and a request for permit coverage under PAG-13. As allowed by PADEP’s permitting procedures, Upper Gwynedd did not have to submit its TMDL Design Details until one year after the Department granted permit coverage, but PADEP’s procedures did not provide a mechanism for the public to provide input on the Design Details submission.
In its appeal, PennFuture objected to both the specifics of the township’s TMDL Strategy as well as deficiencies in PADEP’s MS4 permitting program.  PennFuture’s objections included the following:
  • PADEP should not allow the use of a general permit in cases where EPA has determined in a TMDL report that the Small MS4 seeking permit coverage (such as Upper Gwynedd Township), has caused or contributed to listed impairments of surface waters.
  • PADEP’s permitting process did not provide an adequate opportunity for public participation because, among other things, it did not allow for the public review and comment on the TMDL Design Details portion of the Township’s TMDL Plan.
  • The Township’s method (implicitly approved by PADEP) for amending the allocation of allowable pollutant loads in EPA’s TMDLs (known as “parsing”), did not provide sufficient opportunity for public input or EPA review and approval. 
  • Upper Gwynedd’s TMDL Strategy contained significant errors and omissions, and failed to prove that the township would satisfy its TMDL WLA obligations.   
The Agreement
                After over a year of negotiations, PennFuture and the Department agreed upon the Settlement, which addresses PennFuture’s most important objections. The terms of the settlement document cover seventeen pages and are available here, but the highlights are outlined below. Many of the tentative changes below will be officially proposed by PADEP in 2015 and will, themselves, be subject to a public notice and comment period (and possible revision) before being implemented. As a result of the settlement:
  • PADEP will propose a revised version of PAG-13 that will exclude from coverage any Small MS4 subject to a nutrient or sediment WLA.  Assuming that the draft PAG-13 is adopted in its proposed form, all of these Small MS4s would be required to obtain individual permits and submit TMDL Plans in the next permit cycle beginning in 2018. 
    • For TMDL Plans (or components thereof – Strategies or Design Details) currently pending, PADEP will require all Small MS4s to: (1) notify the public when such TMDL Plan documents are ready for submission to PADEP; and (2) respond to public comments about the TMDL Plan documents before submitting those documents to PADEP.  These requirements will continue during the next permit cycle.
    • Beginning in the next permit cycle, TMDL Plans must be submitted in a single step, as part of the permit application. Municipalities will no longer be allowed to wait until a year after permit issuance to submit the Design Details.
  • PADEP will develop checklists and guidelines for its review of TMDL Plans to ensure the quality of the TMDL Plans and consistency of review.
  • PADEP will hold workshops beginning in 2015 to explain the improved MS4 permitting process and to provide guidance for municipalities required to prepare TMDL Plans. PADEP will also provide guidance to municipalities for WLA parsing methods approved by EPA. The public will be able to review each municipality’s WLA parsing calculations as part of the public review of the TMDL Plan.
  • For Small MS4s subject to pollutant reduction requirements for pollutants other than nutrients or sediment – mine drainage metals, bacteria/pathogens, and priority organic pollutants – PADEP’s draft revision to PAG-13 will include standardized pollutant reduction requirements geared to each category. This change, which would be implemented during the next permit cycle, would replace the current requirement for each municipality to develop its own reduction plan.
The process improvements that result from this case will lead to better municipal plans for stormwater management – and ultimately cleaner waters – for all Pennsylvania citizens.

Mike Helbing is staff attorney for PennFuture and is based in Philadelphia.

Wednesday, October 08, 2014

Pennsylvania outdoor recreation: What's the plan?

Last week, the Department of Conservation and Natural Resources (DCNR) announced that it would hold three public meetings this week on Pennsylvania’s next Outdoor Recreation Plan, and will accept written comments on the plan until October 31.

Question: What is Pennsylvania’s Outdoor Recreation Plan, and why does it matter?

Answer: The Plan, also known as the Statewide Comprehensive Outdoor Recreation Plan (or “SCORP”), is a document that the Commonwealth is required to prepare every five years for it (and its municipalities) to be eligible for grants under the Land and Water Conservation Fund Act (LWCFA), a Federal law that provides funding for state and local outdoor recreation projects. The purpose of SCORPs is to ensure that states have actual strategies and goals for outdoor recreation, and will make good use of LWCFA grants.

The new Pennsylvania SCORP must be approved by the National Park Service (NPS), and by law has to include “an evaluation of the demand for and supply of outdoor recreation resources and facilities” in Pennsylvania and a “program for implementation.” The SCORP also must “specifically address wetlands within that State as an important outdoor recreation resource.” And the governor must certify that “ample opportunity for public participation in plan development and revision has been accorded.”

The LWCFA has been good to Pennsylvania. Since 1965, the year the Act was passed, the Commonwealth and its municipalities have received 1,441 LWCFA grants totalling more than $164 million to acquire and develop lands for outdoor recreation purposes, and to support recreational planning – and the grants have supported outdoor recreational opportunities on more than 82,000 acres of Pennsylvania public land. A good SCORP is a big deal.

In reviewing the new draft SCORP, PennFuture will be curious to see what (if anything) it says about gas development. In 2009 and 2010, the DCNR leased more than 11,000 acres of LWCFA-supported State Forest lands for unconventional gas drilling. Very possibly this was illegal because gas development activities are industrial, and the LWCFA requires NPS approval (which the DCNR didn’t get) to convert LWCFA-supported lands to non-recreational uses.

That’s a subject for another blog post. Meanwhile, if you live in the Pittsburgh area and care about outdoor recreation, attend the DCNR’s public meeting on Thursday, October 9 at the Schenley Park Skating Rink on Overlook Drive. (Regardless of where you live, you can submit comments on the draft SCORP at the DCNR's website until October 31). The Pittsburgh Parks Conservancy is hosting, and there will be a disc golf demonstration. Just don’t try to test your skills later in one of the State Forest areas leased for gas drilling.

Mark Szybist is staff attorney for PennFuture and is based in Wilkes-Barre.

Wednesday, September 17, 2014

Gaston's back-up comes through

In March, this blog described a "bureaucratic version of the Alphonse and Gaston routine" — "After you, Alphonse." "No, you first, my dear Gaston." — in which two units of Pennsylvania's Department of Environmental Protection (DEP) pointed to each other as being responsible for regulating a parcel of land in Fayette County known as the Curry site while unchecked erosion on the site was causing discharges of sediment that polluted the Youghiogheny River. Cast in the role of Alphonse was the Waterways and Wetlands (W&W) Program in DEP's Southwest Regional Office in Pittsburgh, and playing the role of Gaston was DEP's Mining Program.

In an update posted in July — "Alphonse Makes a Play" — we applauded W&W for taking enforcement actions against the owner of the Curry site and a timbering company for violation of DEP's erosion and sedimentation control regulations.

Gaston, in contrast, has been a stick-in-the-sediment.

Gaston — the DEP Mining Program — initially issued a compliance order to the company that holds the surface mining permit for the Curry site, Amerikohl Mining, Inc. It then abruptly reversed course, deciding that the clear-cutting of trees on portions of the site closely corresponding to those permitted for mining activities was not related to the proposed mining operation. The DEP Mining Program reasoned that because the timbering and mining operations were independent, any ongoing soil erosion and sediment pollution resulting from the timbering was not Amerikohl's responsibility and was not within the Mining Program's regulatory jurisdiction.

In short, Gaston's position was "don't call me, call Alphonse."

Fortunately, Gaston has a back-up, in the form of the federal Office of Surface Mining Reclamation and Enforcement (OSMRE), which oversees the DEP Mining Program's regulation of coal mining in Pennsylvania. Digging deeper into the situation than Gaston had, OSMRE stepped up and took action.

The full story is spelled out in a September 8, 2014 Decision of Supervisory Administrative Law Judge Harvey C. Sweitzer of the U.S. Department of the Interior's Office of Hearings and Appeals (OHA).

Here's the short version. In response to citizen complaints about sediment pollution entering the Youghiogheny River, OSMRE gave the DEP Mining Program an opportunity to take action to correct the violations. After initially issuing a compliance order to Amerikohl, the DEP Mining Program reversed course, withdrew its order, and took the position that it had no authority over the Curry site. OSMRE received the same response when it gave the DEP Mining Program a second chance to take action. OSMRE then issued a notice of violation and later a cessation order to Amerikohl for erosion and sedimentation violations at the permitted Curry surface mine. Amerikohl appealed OSMRE's actions to OHA.

On review, Judge Sweitzer upheld OSMRE's issuance of the notice of violation and cessation order to Amerikohl. Rejecting absolute, "bright line" rules suggested by both parties, Judge Sweitzer held that the critical issue of whether the timbering was independent of the proposed coal mining activities required a case-by-case analysis of the factual situation presented. On that central issue, a welter of evidence showed extensive cooperation and coordination between the landowner and Amerikohl. Among other things, the landowner asked Amerikohl which logging contractor to use, had Amerikohl delineate the area to be timbered, removed more trees than would be prudent from a forest management perspective, and geared the logging operation to Amerikohl's timetable and a date restriction in the mining permit. (OHA Decision, p. 12.) Judge Sweitzer concluded that the landowner "did virtually everything he could to facilitate mining through his logging practices." (Id.) As a result, the judge ruled, the logging is classified as a surface mining activity under Pennsylvania's OSMRE-approved coal mining regulations. (Id., p. 15.)

Judge Sweitzer noted that when the DEP Mining Program decided it lacked jurisdiction, it was unaware of the full extent of Amerikohl's involvement in the timbering operations at the Curry site. He also found, however, that the DEP Mining Program had enough evidence — including the congruity between the area timbered and the area covered by the mining permit — to warrant further investigation, and he concluded that its failure to request additional time from OSMRE to conduct an investigation "was an arbitrary and capricious decision." (Id., p. 16.)

For the sake of the High Quality waters of the Youghiogheny, it is welcome news that Gaston has an able back-up that is willing to step into the void and make the play.

Better yet, of course, would be for Gaston to follow Alphonse's lead by getting in the game and making the play himself.

Kurt Weist is senior attorney for PennFuture and is based in Harrisburg.

Wednesday, September 03, 2014

PennFuture scores big victory for local governments and citizens rights

On Friday, Judge Marc F. Lovecchio of the Court of Common Pleas of Lycoming County decided in favor of local residents by vacating and setting aside a conditional use permit that would have allowed Inflection Energy, LLC to build and operate an unconventional shale gas pad in the middle of a residential neighborhood in Fairfield Township. The case is believed to be the first decision testing the role of local government to regulate natural gas developments in the post-Robinson Township world. 

For the uninitiated, the Supreme Court in Robinson Township relied on Pennsylvania’s Environmental Rights Amendment to strike down portions of the state's Oil and Gas Law (Act 13), which compelled local government to allow gas operations across all zoning districts, including residential districts.  Otherwise, the state threatened to penalize local governments by withholding any "impact fees" intended to address harm caused to local communities by the industry. I know, nice guys.

In this case, Inflection applied for a conditional use permit for its proposed gas well pad.  A number of residents spoke out against the well pad before the Fairfield Township Board of Supervisors, testifying to concerns about air pollution, noise pollution, light pollution, traffic congestion, and the impact of the operations on their property values and general well-being. The company introduced the testimony of two witnesses, neither of whom were experts in land-use matters. Often, their testimony consisted of nothing but conclusions, such as that the operations were compatible with existing uses authorized for residential districts, without any explanation of how the witness reached those conclusions.

On appeal, PennFuture made three arguments: (1) that the language of the ordinance expressly authorized gas operations in the industrial zoned district, and it was therefore inappropriate to use a conditional use permit to allow it in the residential zoned district; (2) that the township's decision was not supported by substantial evidence on the record; and (3) that the township had violated the residents' substantive due process rights and failed to comply with its obligations under Article I, Section 27 by authorizing the gas well operation in the middle of a residential neighborhood.

The Township and Company argued that the citizens had waived their rights to raise their various challenges, that the Township properly used its conditional use process, that the Township's findings were supported by substantial evidence, and that no constitutional violations were committed.

Even though the Court "saw merit" in PennFuture's first argument, Judge Lovecchio rejected the idea that the ordinance expressly allowed gas operations only in industrial districts. Instead, the Court vacated the conditional use permit on the basis that the Township's findings were not supported by substantial evidence. The Court stated that the company failed to provide the Township with any evidence to support the conclusion that the proposed use was similar and compatible, while the citizens had “presented substantial evidence that there is a high degree of probability that the use will adversely affect the health, welfare and safety of the neighborhood."

Deciding the case on the basis of substantial evidence relieved the Court of the need to address PennFuture's constitutional arguments. Nonetheless, the Court made plain that the Township had an obligation to protect the constitutional rights guaranteed to its citizens under Article I, Section 27 of the Pennsylvania Constitution. The rights of citizens to a healthy environment, the Court said, "cannot be ignored and must be protected.” 

In so ruling, the Court adopted both the rationale and express language of the Supreme Court's decision in Robinson Township.

The case is Gorsline et al. v. the Board of Supervisors of Fairfield Township and Inflection Energy, LLC et al.  The full opinion can be found here.

George Jugovic, Jr. is chief counsel for PennFuture and is based in Pittsburgh.

Working together to protect a community of life untrammeled by man

When we think about our future, sometimes it's helpful to take a look back at the past. As the New York Times reports, this week marks the 50th anniversary of two important federal environmental laws: The Wilderness Act and the law establishing the Land and Water Conservation Fund. Both of these statutes were passed with bi-partisan majorities at the dawning of the environmental era of American politics.

The Land and Water Conservation Fund was established to use federal funds obtained from offshore drilling to conserve natural areas, landmarks, and recreational opportunities. Although its funding often falls far short of the $900 million authorized by statute, the Land Water and Conservation Fund has invested over $16 billion in conservation measures over its 50-year lifespan. In Pennsylvania, that money has been used, among other things, to create the Flight 93 National Memorial in Shanksville and to protect the Hopewell Big Woods forest in southeastern Pennsylvania.

The Wilderness Act was enacted to protect natural areas that are undisturbed by humans. Under the Act, "wilderness, in contrast with those areas where man and his works dominate the landscape, is hereby recognized as an area where the earth and its community of life are untrammeled by man, where man himself is a visitor who does not remain." At the time it was signed, the Act protected about 9 million acres of wilderness from human development. Today, there are more than 106 million acres of land protected as wilderness. About 44 million of those protected acres are located within the National Park System; other wilderness areas are managed by the U.S. Forest Service, the U.S. Fish and Wildlife Service, or the Bureau of Land Management. Pennsylvania has two wilderness areas: The Allegheny Islands Wilderness on seven islands in the Allegheny River and the Hickory Creek Wilderness in Warren County. 

Thinking about the success of these early federal environmental programs may help us to recognize the respect and admiration for nature shared by nearly all people. Our common love for undisturbed natural areas is shared by people of all ages, ethnic groups, and political affiliations. In a time when we're all frustrated by partisan bickering, recognizing our shared values, and important gains that resulted from those shared values, may help us to better understand and appreciate other people -- and perhaps reveal the path to future progress.

Mike Helbing is a staff attorney in PennFuture's Philadelphia office.

Thursday, August 07, 2014

PA's Environmental Rights Amendment: A Note of Thanks

"Go to the source" is a cardinal rule for reporters, investigators, and researchers of all stripes. For lawyers, it sometimes involves the laborious process of digging up a law's "legislative history" — events occurring during the process of enacting the law that might inform the search for its meaning.

It is a pleasant surprise when someone else does that hard legwork and brings the sources to you.

Such room service recently was delivered by the Widener University School of Law's Environmental Law Center in the form of "A Legislative History of Article 1, Section 27 of the Constitution of the Commonwealth of Pennsylvania." Article 1, Section 27 is better known as the "Environmental Rights Amendment."

The Legislative History was compiled by Distinguished Professor of Law John C. Dernbach and Reference and Government Documents Librarian Edmund J. Sonnenberg. The two did the hard work of tracking down all of the primary source documents, from the first House Bill to the proclamation signed by Governor Shapp confirming that the amendment had become part of the Pennsylvania Constitution on May 18, 1971.

In between are excerpts from the House and Senate Legislative Journals tracking the progress of the amendment through two legislative sessions, the text of the ballot question presenting the amendment to the public for adoption, and the tallies of the popular vote on that question and four others appearing on the same ballot.

Perhaps of greatest interest, however, are Professor Robert Broughton's legal analysis of the proposed amendment, which was entered into the House Legislative Journal in 1970, and the set of questions and answers distributed to the public during the run-up to the 1971 public referendum by the primary sponsor of the amendment, then Representative (and later Senator) Franklin L. Kury.

Even if you have no special interest in constitutional or environmental law, the compilation offers a fascinating glimpse into a piece of Pennsylvania history, as well as a lesson in bi-partisanship.

As Dernbach and Sonnenberg note, interest in Article 1, Section 27 among attorneys and the public skyrocketed last year with Pennsylvania Supreme Court's decision in the Robinson Township case. In explaining the meaning and effect of the amendment, Chief Justice Castille's plurality opinion in Robinson Township relied on several of the documents found in the Widener compilation. As current and future cases explore the contours of the Environmental Rights Amendment, attorneys and judges alike will benefit from having these sources conveniently assembled in one place.

We are certain that we are not alone in saying thank you, Professor Dernbach and Mr. Sonnenberg.

But our greatest thanks go to the original source — Senator Kury. The "Legislative History of Article 1, Section 27" is a reminder of his remarkable efforts, without which there would be no Environmental Rights Amendment to discuss.

Another victory for local land use control

In what amounts to a victory for local land use control, administrative law judges (ALJ's) from the Pennsylvania Public Utility Commission (PUC) issued an initial decision that, if finalized, would deny petitions filed by Sunoco Pipeline, LP, seeking exemptions to local zoning ordinances for pump stations and valve control stations proposed in thirty-one locations across the state as part of Sunoco’s Mariner East pipeline. The stations help facilitate flow through the pipeline.

A municipality may apply its zoning ordinances to a public utility building unless the PUC determines that the building is reasonably necessary for the convenience or welfare of the public. Sunoco asked the PUC to find that the proposed facilities for its Mariner East pipeline fall into this category and are therefore exempt from local zoning ordinances.   

In considering the petitions, the first question the PUC must answer is whether the buildings in question are being used as part of a “public utility service.” Considering objections made by Clean Air Council, Delaware Riverkeeper Network, Concerned Citizens of West Goshen Township, and Mountain Watershed Association, the PUC’s ALJ's determined that Sunoco’s Mariner East pipeline is not a public utility service.

The ALJs reasoned in part that in proposing its project, Sunoco is acting not as a public utility making its products available to any members of the public who may require them, but instead as a common carrier serving its limited customer base. As a result, the administrative law judges determined that the buildings constructed as part of that project are not exempt from local zoning ordinances.

Assuming the initial decision is upheld, this case would stand as the second significant win for local land use control in the last year. Last December, a plurality of the Pennsylvania Supreme Court upheld municipalities’ right to regulate the location of drilling wells under the Environmental Rights Amendment to the Pennsylvania Constitution. As the Supreme Court affirmed in that case, the obligations placed on government by the Environmental Rights Amendment “bind all government, state or local, concurrently.” These decisions empower local governments to act in their citizens’ interest to protect the environmental resources entrusted to them under the Pennsylvania Constitution. 

PennFuture's law staff contributed to this post. 

Wednesday, July 23, 2014

Newest TRI data shows Clairton’s impact on surrounding community

The U.S. Environmental Protection Agency (EPA) just released its preliminary 2013 Toxics Release Inventory (TRI) data for industrial facilities across the United States. The data includes information on U.S. Steel’s Clairton Coke Works in Clairton, Pennsylvania, the country’s largest coke manufacturing plant. The Clairton facility has been in the news the past couple months for its inability to control “pushing emissions” at its new $500 million coke battery (Pittsburgh Post Gazette Article). The TRI data quantifies the toxic emissions coming from the Clairton plant, including toxic air emissions. Below are two tables showing a select number of Clairton’s air emissions. Table 1 shows Clairton’s total greenhouse gas emissions measured in CO2 equivalents, and Table 2 shows major toxic pollutants for 2013.

Table 1. Clairton’s Greenhouse Gas Emissions for 2013
Greenhouse Gas
Total Facility Emissions (CO2e)

There are generally two types of air emissions at the Clairton Plant -- fugitive emissions and stack emissions. Fugitive emissions refer to emissions that do not come from stacks, chimneys, vents, or other controlled openings, whereas stack emissions, as the name implies, come directly from facility stacks. Both types of emissions affect air quality, though fugitive emissions are generally more difficult to control.

Table 2. Clairton’s Major Air Pollutant Data for 2013
Chemical Name
Pounds Released
Fugitive emissions
Stack Emissions
Fugitive emissions
Stack Emissions
Cyanide Compounds
Fugitive emissions
Stack Emissions
Hydrogen Cynanide
Fugitive emissions
Stack Emissions
Hydrogen sulfide
Fugitive emissions
Stack Emissions
Fugitive emissions
Stack Emissions
Fugitive emissions

The TRI report also indicates Clairton’s compliance with the federal Clean Air Act. The report states that the plant is in violation of the state implementation plan, as well as National Emission Standards for Hazardous Air Pollutants governing coke batteries and by-product recovery.  The report’s compliance history section indicates a history of non-compliance and a significant violation of the Clean Air Act in May of 2013. One can see from the data that fugitive emissions account for a large amount of toxic air pollutants emitted by this facility.

While the TRI data is not the entire story, it provides an eye-opening look at the significant amounts of toxics emitted by a facility of this type and size. To access the entire toxic emissions data for Clairton, including water emissions, air emissions, compliance records, and waste transport, visit the EPA’s TRI Envirofacts site here (Clairton is the last facility on the list). Background information about TRI and common TRI terms can be found here

George Jugovic is chief counsel for PennFuture and is based in Pittsburgh.

Wednesday, July 16, 2014

Alphonse makes a play

In March, this blog described a “bureaucratic version of the Alphonse and Gaston routine” – “After you, Alphonse.” “No, you first, my dear Gaston.” – in which two units of Pennsylvania’s Department of Environmental Protection (DEP) were pointing to each other as the responsible regulator while failing to prevent polluting discharges of eroded sediment from a parcel of land in Fayette County known as the Curry site. Cast in the role of Alphonse was the Waterways and Wetlands (W&W) Program in DEP’s Southwest Regional Office in Pittsburgh, and playing the role of Gaston was DEP’s Mining Program.

As noted in the earlier post, baseball broadcasters describe two fielders who both shy away from a catchable fly ball as “pulling an Alphonse and Gaston.”

An update is required: Alphonse has stepped up and made a play!

PennFuture learned last week that on June 19, the W&W Program issued Compliance Orders to Appalachian Timber Company (available here) and Curry Lumber Company (available here) for failure to implement or maintain effective erosion and sediment control best management practices at the Curry parcel, in violation of DEP’s regulations.

The orders state that the cited violations have resulted in sediment pollution entering Morgan Run, a stream running along part of the western boundary of the Curry site that is entitled to special protection as a “High Quality Cold Water Fishery.” The remedial actions required by the orders include submitting a revised erosion and sediment control plan to the Fayette County Conservation District by June 27 and implementing specified best management practices by July 1.

Recent seeding operations and other activities at the Curry site suggest that W&W’s orders have had a beneficial impact, but the permanent stabilization of disturbed areas required by W&W’s compliance orders takes time, so there may be more tell about this part of the story.

There is another part of the story, however, that does not appear to be covered by W&W’s compliance orders. The biggest erosion and sedimentation problems observed at the Curry Site during the last several months have been outside the Morgan Run watershed. Citizens and the federal Office of Surface Mining Reclamation and Enforcement have documented problems on eastern portions of the Curry site that drain directly into the High Quality waters of the Youghiogheny River through several eastward-flowing unnamed tributaries. This photo, taken from the Great Allegheny Passage bike trail last November, shows a distinct, milky plume of sediment pollution carried into the Yough by one of those tributaries. Photos taken on New Year’s Eve show the muddy waters of one of the Curry site tributaries, which contributed to a similar plume of sediment pollution in the Yough. (All photos are used with the permission of the Youghiogheny Riverkeeper®.)

When performing follow-up inspections to assess the companies’ compliance with its June 19 orders, W&W should make sure that the conditions on the eastern side of the Curry site are not causing or contributing to sediment pollution in the Yough through the eastward-flowing tributaries.

Having called out W&W for inaction in March, we now give a shout out to W&W for the actions it has taken – a tip of the (Pirates) cap to you, Alphonse.

But our commendation comes with a qualification: The game is not over, and there are more plays to make. Keep stepping up and catching the ball, Alphonse!

Kurt Weist is senior attorney for PennFuture and is based in Harrisburg.