PA Environment Digest Blog: Environmental Hearing Board Denies DEP Motion To Dismiss BCD Properties Appeal Over Its Illegal Disposal Of Oil And Gas Wastewater By Road Dumping; Case To Proceed On Its Merits

On December 29, the Environmental Hearing Board issued an opinion and order denying the Department of Environmental Protection’s motion to dismiss BCD Properties appeal finding the letter sent by DEP advising the company it did not comply with Residual Waste Coproduct Regulations involving the road dumping of oil and gas wastewater was an appealable action. EHB Docket No. 2025066.

DEP’s motion argued its April 16, 2025 letter to BCD Properties is not a final action of the department-- as it explicitly states in the letter-- and is therefore not subject to review by the Board.

The DEP letter to BCD advised the company the coproduct determination for the Danylko 4 conventional oil and gas wastewater did not meet the requirements of the Residual Waste Regulations and continued road dumping of wastewater may result in enforcement action.

DEP’s letter further advised BCD of the regulations it must meet.

The EHB opinion said, "There is no indication that the coproduct letter is tentative, contingent, or interim. It does not ask or allow for further study nor does it open the matter up for discussion, debate or suggestions."

"As such, the Board finds the coproduct letter to fundamentally alter the current and ongoing status quo of Appellant’s business.

"The letter directs the company to cease use of the brine or act - by generating, maintaining, and producing documentation that sufficiently supports a valid coproduct determination - to avoid facing enforcement consequences."

“Also, we find the regulatory language itself to be in direct conflict with the Department’s assertions.”

"Specifically, the Department argues “there is no defined evaluative process in the statute, regulations, or provision of law requiring the Department to render a decision.”

"The Department likewise argues that the “regulations do not state that the Department shall approve or deny a coproduct determination, nor do they require BCD to submit a form or application to the Department for the Department to declare that is has a valid ‘coproduct.’ ”

"However, upon a review of the regulations governing coproducts, the term “coproduct” not only has a fairly complicated definition but also requires a complex and extensive evaluative process to be made by either a party or the Department that the product is in fact a “coproduct.”

"For example, the regulations clearly indicate that there is a defined regulatory procedure for determining whether something qualifies as a coproduct, and the Department may be required to render a determination on the matter by assessing a variety of factors."

"The regulation states: “[i]f no product or produced raw material exists for purposes of chemical and physical comparison, the Department will review, upon request, information provided and determine whether the material is a coproduct . . . . 25 Pa. Code. § 287.1(B)(iii)."

The opinion notes the matter before the Board “involves: (1) the coproduct definition itself providing an evaluative process to be undertaken to determine something is in fact a coproduct, (2) a regulatory provision of law requiring the Department to render a coproduct determination, and (3) regulations requiring a party to submit to the Department and others documentation proving it has a valid coproduct.”

In short, whether or not BCD Properties complied with the Residual Waste Coproduct Regulations.

"In sum, the Department’s coproduct letter is a determination that directly affects Appellants’ personal property rights, ongoing obligations, and business status quo, creating a final action over which the Board has jurisdiction. Thus, we deny the Department’s Motion to Dismiss."

Click Here for a copy of the opinion and order.

What Happens Now

The BCD appeal will now proceed on its merits, if no further motions are made.

Prior to the motion to dismiss, DEP and BCD advised the Board on July 14, 2025 they had been in preliminary settlement discussions.

Background

BCD Properties, Inc. owns the Danylko 4 conventional gas well in McKean Township, Erie County that produces very little gas, but a lot of wastewater, according to the appeal filed by BCD.

BCD has been producing wastewater and marketing it for road dumping for 6 years-- since at least 2019, the appeal said.

In 2023, Pennfield Energy LLC entered into a contract with Harmony Township, Forest County to road dump oil and gas wastewater. Pennfield obtained the wastewater it road dumped from BCD, according to the appeal.

In July 2024, Harmony Township provided DEP with copies of the coproduct documentation produced by BCD as required by the Residual Waste Regulations [Read more here] comparing the BCD wastewater with wastewater from another conventional well owned by Seneca Mineral Company called LS25 and dumped on roads.

BCD’s appeal notes at about this same time, the state Office of Attorney General Environmental Crimes Section contacted BCD as part of an investigation of its production and sales of wastewater for road dumping.

On April 16, 2025, DEP issued a letter to BCD advising the coproduct determination for the Danylko 4 wastewater did not meet the requirements of the Residual Waste Regulations and continued road dumping of wastewater may result in enforcement action.

DEP’s letter further advised BCD of the regulations it must meet.

On May 14, 2025, BCD appealed DEP’s letter to the Environmental Hearing Board.

Obvious Deficiencies

[Editor’s Note: While DEP did not describe how BCD Properties failed to meet the Residual Waste Regulations, it was obvious--

-- There was no evaluation at all of the "threat of harm to the environment and public health" as the regulations require in the BCD submission. BCD literally only said Seneca Mineral Company’s LS25 wastewater and their wastewater sample had similar simple chemistry (Total Dissolved Solids, chloride, calcium, sodium and magnesium), that's it.

-- BCD only looked at 5 chemicals/parameters not the 39 DEP requires in its oil and gas wastewater general permit, for example. Looking at only 5 parameters (Total Dissolved Solids, chloride, calcium, sodium and magnesium) in comparing the wastes not only gives a woefully inaccurate view of what is in the waste, but it is a totally inadequate basis on which to do any sort of evaluation of the environmental and health impact of the wastes as the Residual Waste Regulations require.

If BCD looked at DEP's Residual Waste General Permit covering beneficial reuse of shale gas wastewater-- which is very similar to conventional wastewater, according to Penn State studies-- DEP requires an analysis of and that the wastewater must meet 39 different chemical standards, including for radioactive radium (Appendix A).

In addition, Penn State's studies of oil and gas wastewater dumped on roads found it violated at least 25 environmental and health discharge standards, including for radioactive radium. Penn State tested for 31 different parameters.

-- BCD also didn't look for any hazardous/toxic chemicals as the regulations require and are known to be in oil and gas wastewater. The Residual Waste Regulations require an analysis of the list of Hazardous and Toxic Constituents contained in federal regulations at 40 CFR Part 261 Appendix VIII. Many of the 39 chemicals in DEP's General Permit analysis list are also on the hazardous/toxics list because they are known to be in oil and gas wastewater.

[The appeal by BCD Properties is part of a continuing effort by the conventional oil and gas industries to legalize the use of road dumping for the disposal of oil and gas wastewater.

[The road dumping of conventional oil and gas wastewater continues unabated in areas of conventional drilling across the state. Read more here.]

(Photos: What road dumping looks like. Row 1-- Late night road dumping on March 21, 2025, note triangular spray pattern; Row 2-- Morning-after March 21 dumping fingerprint; Row- 3 Telltale bluish sheen from road dumping on paved road, water collected after road dumping on Scranton Hollow Road on September 17, 2024)

Resource Links - Conventional Wastewater Road Dumping:

-- Conventional Oil & Gas Well Owners Pushing 3 More Ways To Legalize Road Dumping Their Wastewater; Not Clear How The Public, Put At Risk By Dumping, Will Be Involved [PaEN]

-- DEP Report Finds: Conventional Oil & Gas Drillers Routinely Abandon Wells; Fail To Report How Millions Of Gallons Of Waste Is Disposed; And Non-Compliance Is An ‘Acceptable Norm’ [12.29.22]

-- DEP: Widespread Non-Compliance With Environmental Laws Continues In Conventional Oil & Gas Industry; 3,108+ Abandoned Wells; At Least 85% Conventional Well Owners Fail To Submit Production, Waste, Well Integrity Reports [6.12.25]

-- Late Night Road Dumping: Conventional Oil & Gas Wastewater Continues To Be Dumped On Dirt, Gravel, Paved Roads; DEP Expected To Provide Update At April 24 Meeting [4.9.25]

-- Late Night Dumping II: Conventional Oil & Gas Wastewater Dumping Continues On Roads, This Time With Bigger Trucks; New Research On Harmful Wastewater Impacts [5.22.25]

-- Senate Hearing: Penn State Expert: ‘No More Research That Needs To Be Done’ To Justify A Ban On Road Dumping Conventional Oil & Gas Wastewater [4.17.24]

-- House Hearing: Penn State Expert Says ‘Pennsylvania Should Ban Road Spreading Of Oil & Gas Wastewater;’ Contaminants Exceed Health, Environmental Standards [6.10.24]

-- House Hearing: Penn State Center For Dirt & Gravel Road Studies Says Road Spreading Oil & Gas Wastewater Is Not An Effective Dust Suppressant, Does Not Meet Environmental Testing Standards [6.10.24]

-- Moody & Associates Study Finds Discharge Of Conventional Oil & Gas Wastewater To The Ground Surface ‘Not A Viable Management Practice'; Supports Ban On Road Dumping; Onsite Disposal [5.13.24]

-- The Science Says: Spreading Conventional Drilling Wastewater On Dirt & Gravel Roads Can Harm Aquatic Life, Poses Health Risks To Humans - And It Damages The Roads [10.25.21]

-- How The Conventional Oil & Gas Drilling Industry Eliminated Any Restrictions On The Disposal Of Millions Of Gallons Of Its Wastewater On PA’s Dirt & Gravel Roads [10.21.21]