Environmental Law

Bad Actor Provision in Act 13 only applies to PADEP "Final Actions"

Posted on March 30, 2012
Some people may have overlooked the fact that the General Assembly put a "Bad Actor" provision in Act 13 that gives PADEP the right to deny a drilling permit if the permit applicant has outstanding violations.  It's in Section 3211 and it reads as follows: (e...

US Supreme Court Gives Property Owners Right to Obtain Pre-Enforcement Judicial Review of EPA CWA Compliance Orders

Posted on March 22, 2012
In a unanimous decision issued yesterday, the US Supreme Court for the first time gave property owners the right to pursue immediate judicial review of a compliance order issued by EPA under the Clean Water Act.  Up until now, it had been universally understood and accepted that the Clean Water Act precluded pre-enforcement judicial review of EPA compliance orders...

EPA well testing in Dimock finds No Contamination

Posted on March 16, 2012
In an article appearing this morning, it was reported that EPA's first round of samples failed to identify any contamination in 11 residential wells in Dimock.   Why am I not shocked by that?  Probably because I actually believe PADEP and Cabot when they say that they've analyzed prior sampling and it showed that the well water was not contaminated by nearby drilling...

"We are One DEP"

Posted on March 07, 2012
In his recent testimony before the Senate Appropriations budget hearing, Pennsylvania DEP Secretary Mike Krancer told the committee members that one of his central themes, from the outset of his tenure as Secretary, has been to emphasize that the Department is "one DEP"...

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PA Marcellus Legislation Brings Several Hammers Down on Local Ordinances

Posted on February 16, 2012
A lot has been said about the preemption of local ordinances contained in the amendments to the PA Oil and Gas Act (HB 1950) recently signed into law by Governor Corbett.  But not much has been said about the multiple hammers given to the oil and gas companies for invalidating those ordinances, including private rights of action, and the ability to collect attorneys fees from the local governments...

SAB Process Subcommittee Begins Year Long Project to Help DEP Revise the Act 2 Technical Guidance Manual

Posted on January 12, 2012
Yesterday I chaired a meeting in Harrisburg of the Process Subcommittee of the Cleanup Standards Scientific Advisory Board (SAB), which has been tasked with helping provide advice to the Department on revising the Act 2 Technical Guidance Manual (TGM)...

Secretary Krancer Lays Down the Law Before Congress

Posted on November 21, 2011
In testimony delivered last week before a Congressional Subcommittee in Washington, D.C., PADEP Secretary Michael Krancer did what a thoughtful judge should do.  He set forth both the facts and the law on the subject of Pennsylvania's regulation of the Marcellus Shale...

DRBC Postpones Vote on Marcellus Regulations

Posted on November 18, 2011
In a press release issued earlier today, the DRBC announced that it is postponing the special meeting it had scheduled for November 21 to vote on its proposed Marcellus regulations.  No new date was provided.  At this point, the uncertainty created by DRBC, and the continued de-facto moratorium resulting from the inability of drillers to obtain permits, has made it very unlikely that any drilling will occur anywhere in the basin even after DRBC issues its regulations...

CSSAB to Provide Input on Revising Act 2 Technical Guidance Manual

Posted on October 30, 2011
On October 28, I was asked to chair the newly reconstituted Process Subcommittee of the PA Cleanup Standards Scientific Advisory Board (SAB), for the express purpose of helping the Department revise the Act 2 Technical Guidance Manual (TGM)...

How Many Bats Does It Take to Stop a Windmill?

Posted on October 20, 2011
We've got many different kinds of bats in Pennsylvania but only one can stop a windmill.  We've got big brown bats, little brown bats, tri-colored bats, hoary bats, small-footed bats, silver-haired bats, northern long ear bats, red bats, evening bats, and an occasional seminole bat...

Three Counties Tops in Marcellus Gas Production

Posted on October 12, 2011
An article appearing in Directions Magazine notes that Bradford, Susquehanna and Greene Counties have the highest producing Marcellus Shale gas wells in the Commonwealth of Pennsylvania, according to the most recent data.   The same article notes that as of June 30, 2011, there were 1,655 wells reporting gas production, which was a 37% increase over the prior six months...

DRBC Should Use Extra Time to Give Full Consideration to PA's Objections to the Proposed Marcellus Regulations

Posted on October 10, 2011
Natural gas drillers looking to engage in Marcellus Shale exploration and development in northeastern Pennsylvania (mostly Wayne and Pike counties) are going to have to wait a little longer before they can start putting in their applications with the Delaware River Basin Commission...

Governor Corbett's Proposed Marcellus Shale Impact Fee

Posted on October 06, 2011
I worked closely with Dave Hess when he was Executive Deputy Secretary and I was Special Deputy Secretary under Jim Seif and Governor Ridge.  Dave was responsible for PADEP's environmental digest that provided fresh news about activities at the Department and around the state that concerned environmental protection...

Governor Corbett Releases Proposal for Implementing Marcellus Shale Advisory Commission's recommendations

Posted on October 03, 2011
In a news release issued earlier today, Governor Corbett announced his plans for implementing the 94 recommendations previously released by the Marcellus Shale Advisory Commission.  The recommendations include legislative, regulatory and policy initiatives...

PADEP Reorganization is Good for Brownfields

Posted on September 21, 2011
Yesterday, Secretary Krancer formally announced his reorganization for the Pennsylvania Department of Environmental Protection.   According to the Secretary's announcement, there will be a new Bureau of Environmental Cleanup and Brownfields...

Time for PADEP to Put SEPs Back in Its Enforcement Toolbox

Posted on August 17, 2011
Supplemental Environmental Projects or SEPs were part of PADEP's enforcement toolbox for many years.   The Ridge Administration used them very effectively.  The Department, in fact, still has a guidance document on its website that describes its SEP policy ...

Marcellus Shale Advisory Commission Issues Report

Posted on July 27, 2011
On July 22, the Governor's Marcellus Shale Advisory Commission released its long anticipated report ("Shale Report"), which was written in response to Executive Order 2011-01, calling for the formation of a Commission that would issue a report to the Governor with recommendations to "develop a comprehensive, strategic proposal for the responsible and environmentally sound development of Marcellus Shale...

EPA Will Study Fracking Impact in Three PA Counties

Posted on July 01, 2011
EPA announced in a news release that it would perform seven "case studies" that would assess the potential impact of hydraulic fracturing on drinking water resources.  The Agency intends to perform two types of studies.  First, there will be "prospective case studies" in which EPA will monitor key aspects of the fracking process throughout the lifecycle of a well...

Is New York getting Ready to Lift its Moratorium on Marcellus Drilling?

Posted on June 30, 2011
An article appearing in today's New York Times states that the Cuomo administration is expected to lift the state's moratorium on drilling in the Marcellus Shale formation.  NYDEC is supposed to be releasing a study on hydrofracking tomorrow, and presumably that will foreshadow what New York plans to do going forward...

Fair Share Act Does Not Change HSCA Joint and Several Liability

Posted on June 29, 2011
Governor Corbett has now signed Senate Bill 1131, commonly referred to as the Fair Share Act, into law.   The law was one of the Governor's top legislative priorities.  It is designed to ensure that business owners and other defendants do not bear a disproportionate share of the liability for damages awarded in civil cases...

More Budget Pain at PADEP

Posted on June 29, 2011
PADEP loses an additional $37 million in the state budget that the Senate passed yesterday and Governor Corbett is expected to sign into law later this week.  Given the steep cuts imposed on PADEP over the last few years, $37 million seems more manageable, but it will still inflict additional pain on a Department that we all rely on to protect the Commonwealth's environment...

SB 263 Requires "Acceptable Data" for New Regulations

Posted on June 29, 2011
My thanks to Paul King at PEC for passing word along that the General Assembly passed SB 263 yesterday and it is on its way to Governor Corbett.   The bill amends the Regulatory Review Act and requires that any regulation sent to the Independent Regulatory Review Commission (IRRC) be supported by "acceptable data"...

PADEP Imposes Record Fine on Oil and Gas Company

Posted on May 17, 2011
In a press release issued earlier today, PADEP announced that it had imposed a $1,088,000 fine on Chesapeake Energy for violations related to natural gas drilling activities.  Chesapeake entered into a CO&A with the Department and agreed to pay $900,000 for contaminating private water wells in Bradford County and $188,000 for a tank fire at one of its drilling sites in Washington County...

Pennsylvania Brownfields Inventory Needs More Work

Posted on May 17, 2011
As a frequent visitor to the PADEP website, I noticed just the other day that there was a new feature on the opening page of the website called "Pennsylvania Brownfields Inventory".   I clicked on it to see what I might find.  Based on what I found, I'm hoping that it is a "work in progress"...

PADEP UECA Covenant Registry Now On Line

Posted on May 16, 2011
I received an email notification earlier today that PADEP's UECA Covenant Registry is now up and running on line.  The notification read as follows:  The Pennsylvania Activity and Use Limitations Registry (PA AUL) is now available online.  The PA AUL fulfills PA DEP's obligation to track environmental covenants as required by Pennsylvania's Uniform Environmental Covenants Act (Act 68 of 2007) where engineering or institutional controls are necessary to demonstrate or assure maintenance of an Act 2 remediation standard...

PEC and CBF Propose Marcellus Shale Amendments

Posted on May 11, 2011
On May 10, the Pennsylvania Environmental Council (PEC) and the Chesapeake Bay Foundation (CBF) jointly released proposed amendments to the PA Oil and Gas Act, which the two groups say will "increase public confidence in the ability of Pennsylvania to "get it right" in regulating natural gas shale development, and in the industry to comply with environmental safeguards...

Secretary Krancer Makes Brownfields a Priority

Posted on May 09, 2011
With all the focus on Marcellus Shale, it is nice to see that PADEP Secretary Mike Krancer has made "Revitalizing Brownfields and Grayfield Properties" one of his top three priorities for the Department.  He said that much in his opening statement before the House Environmental Resources and Energy Committee just last week...

PADEP Wants Marcellus Wastewater Recycled

Posted on April 20, 2011
    Pennsylvania has already issued three statewide general permits pursuant to 25 Pa. Code Chapter 287 --WMGR119, WMGR121, and WMGR123 -- that authorize the treatment, processing, and beneficial reuse of frac water...

Observations From Brownfields 2011 in Philadelphia

Posted on April 06, 2011
On Monday, I attended the Brownfields 2011 Conference at the Philadelphia Convention Center.  To say that it was well attended would be an understatement.  The crowd was enormous and it was standing room only at the Plenary Session and several of the programs I attended...

Billion with a B

Posted on March 03, 2011
How much do Pennsylvania landowners stand to gain from the development of the Marcellus Shale?  In a recent article, FBR Capital Markets said that $1.8 Billion was paid by gas companies to Pennsylvania landowners in 2009, and an expected $250 Billion would be paid to Pennsylvania landowners over time from the development of the Marcellus Shale...

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