pa environment digest sept. 16, 2013

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PA Environment DigestAn Update On Environmental Issues In PAEdited By: David E. Hess, Crisci Associates

Winner 2009 PAEE Business Partner Of The Year Award

Harrisburg, Pa September 16, 2013

Federal Court Upholds Chesapeake Bay Cleanup Blueprint

Pennsylvania Federal Judge Sylvia Rambo Friday issued a ruling upholding Bay cleanup efforts, and

rejecting the arguments of the Farm Bureau the National Homebuilders Association, and other big

agriculture interests.

The ruling affirmed the U.S. Environmental Protection Agency, working with the states, has theauthority to set science-based pollution limits.

This is a great day for clean water in the region, there could be no better outcome, said

Chesapeake Bay Foundation President William C. Baker. CBF and our partners respectfully salute the

thoughtful legal decision making by Judge Rambo, the presiding federal judge in the United States

District Court for the Middle District of Pennsylvania.

Less than two weeks after EPA established pollution limits for the Bay, as required by the Clean

Water Act for any body of water not meeting specific water quality standards, The American Farm

Bureau Federation and the Pennsylvania Farm Bureau filed a complaint in federal court to throw out the

limits known legally in the Clean Water Act as a Total Maximum Daily Load or TMDL.

Not long after the original complaint was filed, the two initiating groups were joined by theNational Association of Home Builders, the National Chicken Council, the National Corn Growers

Association, the National Pork Producers Council, the National Turkey Federation, The Fertilizer

Institute, and the U.S. Poultry & Egg Association.

CBF and its partners intervened in the lawsuit to protect the clean up. The partners included

Citizens for Pennsylvanias Future, Defenders of Wildlife, Jefferson County (WV) Public Service

District, Midshore River Keeper Conservancy, and the National Wildlife Federation.

As one of the 17 million people who live near a river or stream flowing to the Chesapeake

Bay, I am thrilled that the court ruled in favor of clean water, fishable rivers and safe places for children

to swim, said Larry Schweiger, president and CEO of the National Wildlife Federation. The court

made it clear the agency is authorized to continue doing what is necessary to reduce pollution enteringthe Chesapeake Bay and protect the water that sustains people, wildlife and livelihoods. The

science-based standards create accountability and are leading to real results.

In the case, known as American Farm Bureau et al v. EPA, the plaintiffs made three complaints:

(1) that the pollution limits or TMDL exceeded EPAs authority, (2) that they were based on faulty

science, and (3) that the plaintiff did not have adequate time to participate in the comment process.

Judge Rambo found against them on all points.

Clean water is the legacy I want to leave to my children and grandchildren. Restoring clean
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water puts people to work and strengthens our economies, Baker said. We call on the opposition to

cease their attempts to derail the clean-up efforts, lay aside expensive litigation, and roll up their sleeves

and work with us for clean rivers and streams across the region.

Jim Abernathy, interim president and chief executive officer of PennFuture, says "PennFuture is

pleased that the court has upheld EPA's authority to issue the plan that will clean up polluted rivers and

streams in Pennsylvania and the Chesapeake Bay."Everyone -- farmers and homeowners, rural and urban -- all realize clean water is vital to their

community and to their economy. Midshore Riverkeeper Conservancy joined this lawsuit to represent

the voice of rural areas and small towns. We dont know what purpose this suit was meant to serve but

it was not in most peoples interests, said Tim Junkin, Midshore Riverkeeper executive director. We

are thrilled that EPA has prevailed. It is a critical time and the clean water blueprint offers a new

approach and requires that everyone does their fair share to clean up our local waters.

The courts decision is great news for fish and wildlife that depend on a healthy Bay for their

survival. If implemented properly, the rule has the potential to significantly improve the ecological health

of the Bay for the benefit of wildlife and people alike, said Michael Senatore, Vice President for

Conservation Law at Defenders of Wildlife.Click Here to see how Pennsylvania is doing in meeting its Chesapeake Bay cleanup

commitments.

Attorney General Files Criminal Charges Against XTO Energy Drilling Company

The Attorney General's Office Tuesday announced charges against a Pennsylvania subsidiary of

ExxonMobil for illegally discharging more than 50,000 gallons of toxic wastewater from a Marcellus

Shale gas well site in Penn Township, Lycoming County.

Attorney General Kathleen G. Kane identified the company as XTO Energy Inc., 395 Airport

Road, Indiana, Pa. Evidence and testimony was presented to a statewide investigating grand jury, whichrecommended the criminal charges being filed.

XTO owns the Marquardt well site in Penn Township, which contains two natural gas wells on

the site. During natural gas extraction, these wells produce waste water containing toxic substances,

such as chlorides, barium, strontium and aluminum. XTO allegedly stored this waste water in

21,000-gallon storage tanks at the Marquardt site for subsequent processing.

The grand jury found that XTO hired a company to recycle waste water at the Marquardt site

from Nov. 4, 2010 through Nov. 11, 2010. After that one-week period, XTO directed that company

to remove their processing equipment from the site and transport it to another XTO well site in West

Virginia.

However, XTO allegedly continued to transport and store gas well waste water at the

Marquardt site despite not having the proper equipment on site to safely store or process it.

The illegal discharge of gas well waste water was discovered on Nov. 16, 2010, when an

inspector with the Department of Environmental Protection made an unannounced visit to the Marquardt

site.

According to the grand jury, during that visit a DEP inspector discovered that a rear discharge

valve on a storage tank had been opened and a drain plug had been removed, causing gas well waste

water to flow out of the storage tank onto the ground. There also was evidence of prior waste water
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discharges from other storage tanks at the Marquardt site.

The grand jury found that between November 12-16, 2010 more than 93,000 gallons of waste

water was transported to and stored at the Marquardt site, of which approximately 57,000 gallons was

unaccounted for following the spill.

Kane said that the toxic waste water flowed into and polluted an unnamed tributary of Sugar

Run. As a result of the spill, DEP required more than 3,000 tons of contaminated soil to be excavatedand removed from the Marquardt site

XTO allegedly failed to place a spill containment system under any of the storage tanks at the

Marquardt site failed to lock or otherwise secure any of the storage tanks on site and failed to utilize

any security measures to prevent unauthorized individuals from accessing the Marquardt site.

According to the grand jury, XTO did not have a permit to discharge wastewater at the

Marquardt site and failed to report any waste water spills to DEP as required by law.

XTO Energy Inc. is charged with five counts of unlawful conduct under the Clean Streams Law

and three counts of unlawful conduct under the Solid Waste Management Act.

Kane thanked the Department of Environmental Protection for their assistance with the

investigation.The case will be prosecuted in Lycoming County by Chief Deputy Glenn A. Parno of the

Attorney General's Environmental Crimes Section.

Company Reaction

XTO Energy Inc., a subsidiary of Exxon Mobil Corporation, said today it will

challenge criminal charges filed by Pennsylvanias Attorney General, Kathleen Kane, regarding

a November 2010 spill of produced water from a temporary storage tank being used during a water

recycling operation in Lycoming County.

Criminal charges are unwarranted and legally baseless because neither XTO nor any of its

employees intentionally, recklessly or negligently discharged produced water on the site.

XTO acted quickly and cooperatively with state and federal authorities to clean up theproduced water.

There was no lasting environmental impact and the site has been fully remediated in accordance

with guidance of Pennsylvanias Department of Environmental Protection.

The criminal charges filed by the Attorney General are unprecedented and an abuse of

prosecutorial discretion. There was no intentional, reckless, or negligent misconduct by XTO. The

incident did not result in significant or lasting environmental harm.

Charging XTO under these circumstances could discourage good environmental practices, such

as recycling. The action tells oil and gas operators that setting up infrastructure to recycle produced

water exposes them to the risk of significant legal and financial penalties should a small release occur.

XTO has already agreed with federal authorities on reasonable civil penalties and preventative

steps to avoid future accidents of this type. Without admission of liability, on July 18, 2013, a consent

decree regarding the discharge was signed between XTO and the U.S. Department of Justice and the

U.S. Environmental Protection Agency.

The Department of Justice conducted a full investigation for more than a year and concluded

that criminal charges were not warranted. An investigation by the Pennsylvania Department of

Environmental Protection is ongoing.

Other Reaction


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The PA Chamber of Business and Industry said it is deeply concerned by Pennsylvania

Attorney General Kathleen Kanes decision to file criminal charges against a company operating in the

Commonwealth for what by all accounts was an unintentional action caused by a contractor.

Kanes charges against XTO Energy, Inc. stem from a November 2010 spill of produced water

from a temporary storage tank being used during a water recycling operation in Lycoming County.

PA Chamber President and CEO Gene Barr said it is puzzling that this action is being takengiven that XTO worked voluntarily with state and federal authorities to clean up the produced water,

and the site has since been fully remediated and especially given that both the U.S. Department of

Justice and the U.S. EPA found no reason to impose criminal sanctions.

This decision sends a chilling message to all businesses looking to locate in Pennsylvania that

they could be held criminally liable in the event of an unintentional spill by a contractor that resulted in n

injury to humans or wildlife and that had no lasting impacts on the environment, Barr said. Its an

unusual, if not unprecedented, over-reach by the attorney general.

NewsClips:

More Actions Coming In Wake Of XTO Spill ChargesAGs Criminal Charges Stun Drilling Industry, Business Group

Shale Criminal Charges Stun Drilling Industry

Criminal Drilling, Vandalism Or Negligent Contractor?

AG Files Criminal Charges Against Gas Drilling Company

AG Files Criminal Charges Against XTO Drilling

AG Kane Charges Company Over Fracking Spill

Frackers Fired Up By Criminal Charges In 2010 Spill

DEP Cancels Oil & Gas Technical Advisory Board Subcommittee Meetings For Sept. 18-19

The Department of Environmental Protectionpublished a notice in the September 14 PA Bulletin

canceling the September 18-19 subcommittee meetings of the Oil and Gas Technical Advisory Board

due to be held in Harrisburg.

Subcommittees of the Board, including some outside stakeholders, had met twice to consider

issues related to the recently proposed Chapter 78 oil and gas regulation changes mandated by the Act

13 Marcellus drilling law.

A controversy developed in July when members ofthe Board wrote to DEP and members of

the Environmental Quality Board saying the proposed Chapter 78 regulations had major flaws and were

not ready for public review. The Advisory Board members had voted in April to allow the regulations

to move ahead for public comment.

DEP decided to go ahead with the regulations, over the objections of the industry-dominated

Advisory Board, and they were formally approved for public comment by the Environmental Quality

Board at its August 27 meeting.

The subcommittees and stakeholders had been considering several key issues on which

consensus was not yet reached, including: public resource protection, pre-hydraulic fracturing

assessment, waste management at well sites, and water supply restoration standards.
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DCNR Adds 7 Watersheds To Pennsylvania Rivers Conservation Registry

The Department of Conservation and Natural Resources published notices in the September 14 PA

Bulletin formally adding seven watersheds to the Pennsylvania Rivers Conservation Registry. The

watersheds include--

-- Allegheny Headwaters Watershed: Conservation Plan developed by the Western PAConservancy in Cameron, McKean and Potter counties. (formal notice)

-- Brokenstraw Creek Watershed: Conservation Plan developed by the Western PA Conservancy

in Crawford, Erie and Warren counties. (formal notice)

-- Catawissa Creek Watershed: Conservation Plan developed by the PA Environmental Council in

Carbon, Columbia, Luzerne and Schuylkill counties. (formal notice)

-- Lower Mahoning Creek Regional Watershed: Conservation Plan developed by the Western PA

Conservancy in Armstrong, Indiana and Jefferson counties including Mahoning Creek, Lower Mahoning

Watershed, Pine Creek, Hays Run. (formal notice)

-- Mahanoy Creek Watershed: Conservation Plan developed by the Northern Schuylkill Council of

Governments in Columbia, Northumberland and Schuylkill counties. (formal notice)-- Newtown Creek Watershed: Conservation Plan developed by Newtown Borough in Bucks

County. (formal notice)

-- Slippery Rock Creek Watershed: Conservation Plan developed by Stream Restoration, Inc. in

Beaver, Butler, Lawrence, Mercer and Venango counties. (formal notice)

The action makes them eligible for implementation, development or acquisition grant funding

through the program.

For more information, visit DCNRs Rivers Conservation Program webpage.

September DEP Monthly Report To Citizens Advisory Council Now Available

This week the Department of Environmental Protection made available the September Monthly Report

of key actions and initiatives within the agency to the DEP Citizens Advisory Council. This report is

well worth the time to catch up on items you may have missed.

Click Here to read your copy. The next meeting of the Citizens Advisory Council is September

17.

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Senate/House Agenda/Session Schedule/Bills Introduced

Here are the Senate and House Calendars and Committee meetings showing bills of interest as well as a

list of new environmental bills introduced--

Session Schedule

Here is the latest voting session schedule for the Senate and House--

House

September 23, 24, 25, 30

October 1, 2, 15, 16, 17 (Non-Voting), 21, 22, 23

November 12, 13, 18, 19, 20

December 9, 10, 11, 16, 17, 18 (Non-Voting)

Senate

September 23, 24, 25, 30

October 1, 2, 15, 16, 21, 22, 23

November 12, 13, 18, 19, 20

December 3, 4, 9, 10, 11

Bill Calendars

House (September 23): House Bill 302 (Moul-R-Adams) transferring funds from the Oil and Gas

Lease Fund to DEP for a competitive grant program to convert small mass transit bus fleets to natural

gas House Bill 303 (Moul-R-Adams) transferring funds from the Oil and Gas Lease Fund to DEP for a
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competitive grant program to convert large mass transit fleets to natural gas House Bill 304

(Marshall-R-Beaver) funding conversions of transit buses to natural gas House Bill 306

(Pickett-R-Bradford) redirecting the Alternative Fuels Incentive Fund to create the Keystone Fuel

Incentive Program to fund conversions of vehicles to natural gas House Bill 308 (Saylor-R-York)

redirecting $6 million annually from the Clean Air Fund to finance vehicle conversions to natural gas.

pa environment digest sept. 16, 2013

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