Archive for the 'Environmental' Category

New Amendments to the Coal Refuse Disposal Control Act will Impact Coal Bed Methane Permitting Procedure

By Andrew T. Bockis and Joel R. Burcat

Saul Ewing, LLP, Harrisburg, PA

 

On February 1, 2010, Governor Rendell signed into law House Bill 1847, which amends the Coal Refuse Disposal Control Act, 52 P.S. §§ 30.51 – 30.66.  The amendments, known as the Coal Bed Methane Dispute Resolution Act (P.L. ___, No. 2010-4), establish the Coal Bed Methane Review Board, a quasi-independent panel that will receive administrative and clerical support from the Department of Environmental Protection.  This Board will resolve disputes between property owners over the location of coal bed methane wells and access roads.  Prior to enactment, surface land owners often had little recourse if they did not approve of the location of a coal bed methane well drilled by the mineral rights owner.

 

Coal bed methane is a form of natural gas that is extracted from a coal seam.  It is typically owned by the owner of the coal rights.  The amendments do not change the ownership of property or mineral rights, but rather create a more timely and less expensive process for property owners to clear up disputes that arise over the location of coal bed methane wells without going to court.

 

The amendments will give surface property owners the right to raise objections before the Board to a well operator’s proposed well location.  This process would also allow surface property owners to indicate alternative locations at which the proposed coal bed methane well or access road could be placed.

The amendments require well operators to provide notice of the proposed location of the proposed well to all landowners who are within 1,000 feet from the proposed well location.  Landowners will have 15 days from the date they receive the notice to file an objection with the Board.  If no objections are filed within that time period, the Department of Environmental Protection may proceed to act on the proposed well application.  If objections are filed, the Board will typically conduct a hearing within 10 days, and the Board is required to make a decision within 10 days from the time the hearing concludes.  The Board will assist the parties in agreeing upon a location of the well or access road, but if the parties fail to agree, the Board will make its own written determination.  An appeal from the Board’s decision may be taken to the Court of Common Pleas in the judicial district in which the affected property is located.

The Board will be a three member panel made up of individuals appointed by the Governor from a list of nominees submitted by the Pennsylvania Farm Bureau, in addition to nominees submitted jointly by the Pennsylvania Oil and Gas Association, the Independent Oil and Gas Association and the Pennsylvania Coal Association, and nominees submitted by the deans of Penn State University’s College of Earth and Mineral Sciences.  Board members will serve three year terms, and they may be reappointed.

The amendments do not have any direct impact on Marcellus gas production.  They may perhaps, point the way to legislative initiatives that result in cooperative approaches to resolving disputes relating to Marcellus gas.  The Governor will have until early May to appoint the initial members of the Board.  The notice-and-objection provisions of the amendments will go into effect when the Department of Environmental Protection publishes a notice in the Pennsylvania Bulletin that all initial members have been appointed.

 

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SRBC Orders Stop to Site Preparation at Marcellus Shale Site — Prior to Water Withdrawal

Carl B. Everett, Esq.

Saul Ewing, LLP

Philadelphia

 

On January 12, 2010, the Susquehanna River Basin Commission ordered natural gas drilling company Novus Operating, LLC to cease all water related activities at two Marcellus Shale drilling pad sites in Tioga County and to cease drilling.  The company had begun drilling two wells despite having been informed by the SRBC that its prior approval was required.   The company had not yet begun water withdrawals, which presents an interesting question of SRBC authority.  A link to the SRBC Press Release is avaiable by clicking here.

 

The SRBC regulations are codified at 18 CFR 801-808.  Section 806.4(a) says that no person shall undertake any of the following projects without prior review and approval by the Commission…(8) any natural gas well development project in the basin targeting the Marcellus or Utica shale formations… for exploration or production of natural gas involving a withdrawal, diversion or consumptive use, regardless of quantity.*  Each of the key words is defined.  The definition of “project” contains the following: “For purposes of natural gas development activities, the project shall be considered to be the drilling pad upon which one or more exploratory or production wells are undertaken, and all water-related appurtenant facilities and activities related thereto.” 

 

The regulations addressing violations impose a duty to comply (section 808.11) and further authorize the imposition of civil penalties for violations of the compact or commission rules pursuant to section 15.17 of the compact (section 808.17).  The compact authorizes penalties of not less than $50 nor more than $1,000, with each day of violation to be considered a separate offense.

 

The federal environmental statutes vary with respect to the need for construction permits.  The Clean Water Act applies to discharges; construction is at the risk of the owner.  The Clean Air Act contains rigorous pre-construction requirements.  The SRBC regulations are on the CAA end of the spectrum.  However, the compact itself seems more similar to the Clean Water Act as its focus is on the water resources.  Interestingly, the compact does not mention gas (or coal).  There may be an argument that the regulations, notwithstanding compliance with procedural requirements in their promulgation, exceed the authority granted by the compact.  Perhaps Novus Operating, LLC plans to press that issue.

 

*Section 806.4(a)(8) was erroneously proposed to be deleted, but the error was corrected 74 Fed. Reg. 49810 (September 29, 2009). 

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Texas Agency Study Shows No VOC Air Pollution From Shale Gas Well Sites

The Texas Commission on Environmental Quality took air samples from more than 100 shale gas production facilities in Fort Worth, Texas and found no hazardous air pollution.  The TCEQ announced yesterday the results from their mid-December study in which they sampled for 22 volatile organic compounds, finding no hazardous levels of volatile organic compounds and in most cases no detectable levels at all.  A copy of their press release can be viewed by clicking here.

A link to the TCEQ Barnet Shale site with more information can be accessed by clicking here.

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Fish & Boat Commission To Inspect Drilling Sites Near Waterways

The Pennsylvania Fish & Boat Commission has announced that it will be pro-actively inspecting drilling sites near to waterways and wetlands.  Thus far the Commission has mostly inspected in response to complaints.  150 sites have been identified for inspection.  Inspections will commence in December.

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Cabot Renews Fracking in Susquehanna – Fluid Leak Remediated

A leak of 8,400 gallons of proprietary fracking fluids (1,900 into a wetland) from a ruptured or leaking pipe resulted in a temporary cessation of drilling.  The incident may have been site-specific, due to pressure on the lines from an unusual ground elevation difference from the tanks to the well.  An engineering study of the incident by Cabot resulted in corrective measures accepted by PaDEP, including improved preparedness planning, pipe testing and observation.  Drilling has been allowed to resume.  Fines are still possible, according to a news report.  More information is available in the DEP press release here and comprehensive Times Tribune news report here.

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The Marcellus Shale PR Challenge

The quoted statements by PennFuture in the EarthTimes article (attached) exagerate the environmental impact of Marcellus Shale gas drilling.  While one could raise planning issues that the DCNR will likely have to consider, e.g., sensitive areas to avoid and road infrastructure, the criticisms here are exagerated for impact.  You can read the article and decide for yourself by clicking here.

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