Friday, May 31, 2019

PA Supreme Court Allows Residents Of Other Municipalities To Testify In Local Zoning Cases Involving Drilling Operations

On May 31, the PA Supreme Court issued an opinion allowing a municipality considering a local zoning permit for a gas drilling operation to take first-hand evidence and testimony of residents from another municipality with respect to the impacts to their health, quality of life and property from a similar drilling operation.
The case involved a special conditional use permit denied to EQT and an affiliate to operate an unconventional  natural gas drilling on a 29.7-acre property in the Borough of Jefferson Hills, Allegheny County.
In addition to the proposed 16 gas wells on the property ,there would be a 3.4 million gallon water impoundment pond containing water to be used during the drilling operation.
The Jefferson Borough Council held a hearing on the application that included testimony from 3 objectors who were residents of the adjacent Union Township in Washington County near a similar gas well drilling site constructed in 2007.
They described their experiences with the drilling operation that included having to leave in the middle of the night “countless” times, staying at a hotel away from the site for 2 months, serious respiratory illness and other impacts.
The Borough Council denied the special conditional use permit for drilling citing all of the testimony it had received.
EQT appealed the Borough’s decision to Allegheny County Court of Common Pleas which reversed the Borough’s decision without taking additional evidence.
The Borough then appealed that decision to Commonwealth Court, which affirmed the Common Pleas Court decision.
In its decision, the PA Supreme Court said, “We determined that the evidence received by the governing body, detailed above, including that provided by the residents of the community regarding how the facility impacted their day-to-day lives while it was in operation, was sufficient to enable the objectors to demonstrate detriment.
“We expressly rejected the Commonwealth Court’s conclusion that this testimony constituted only “bald assertions,” or “unsupported anxieties,” because the residents’ testimony was based on their own firsthand experiences with the operation of the facility.
“In sum, then, we conclude that the testimonial evidence of the Union Township objectors was both relevant and probative as to the question of whether the grant of conditional use authorization to EQT for construction and operation of the Bickerton site would adversely impact the health, safety, and general welfare of the residents of Jefferson Borough; therefore, it was properly received and considered by Council in rendering its decision on EQT’s application.
“The Commonwealth Court panel improperly characterized this firsthand experiential evidence as “speculative”; therefore, we are constrained to vacate the order of the Commonwealth Court and remand to that tribunal, with instructions to remand this matter to the trial court to reconsider its decision in light of this opinion.”

Senate Appropriations To Consider Bills Allowing Game, Fish & Boat Commissions To Adopt Own License Fees June 3

The Senate Appropriations Committee is scheduled to meet on June 3 to consider bills authorizing the Game and Fish and Boat Commissions to adopt their own license fees for 3 years.  The bills include--
-- Senate Bill 552 (Stefano-R- Fayette) authorizing the Game Commission to adopt its own license fees for 3 years; and
-- Senate Bill 553 (Stefano-R-Fayette) authorizing the Fish and Boat Commission to adopt its own license fees for 3 years.
House Bill 808 (Mehaffie-R-Dauphin) authorizing the Fish and Boat Commission to adopt their own fees for 3 years (House Fiscal Note and summary) is on the Senate Calendar for action, and still needs to go to Senate Appropriations Committee.
The meeting will be held in the Rules Room Off The Floor, sometime after the Senate breaks from session.
Sen. Pat Browne (R-Lehigh) serves as Majority Chair of the Senate Appropriations and can be contacted at 717-787-1349 or send email to:  Sen. Vincent Hughes (D-Philadelphia) serves as Minority Chair and can be contacted at 717-787-7112 or send email to:

House Hearing Highlighted Need For Planned Public Safety Response To Pipelines

On May 30, the House Veterans Affairs and Emergency Preparedness Committee held a hearing in Media, Delaware County which highlighted both the regulations designed to make pipelines a safe way to transport product and the need to have an emergency response plan in the event of a leak.
Currently, the response plan – if one is even available – is often prepared by local officials and shared with residents with little uniformity from one municipality to another.
There’s often a chain of command that involves a hierarchy of people who must make specific decisions prior to the information being shared with the public.
“One of the top priorities of the VAEP Committee is ensuring public safety, and today’s hearing demonstrated the need for improvement in the event of a pipeline emergency. The quicker we can communicate effectively at that critical time, the more lives we’ll be able to save,” said Rep. Stephen Barrar (R-Delaware), who serves as Majority Chair of the Committee.
Plans that are in place now are generally unsuitable for vulnerable community members, such as people in nursing homes or those without a smartphone who would not receive a mass alert, according to Tim Boyce, director of Delaware County’s Department of Emergency Services and the county’s emergency management coordinator.
Joseph McGinn, vice president of public affairs and government relations for Energy Transfer, testified that there are more than 1,000 miles of pipeline in the Commonwealth, which demonstrates the need for effective communication, preparedness and planning.
Testifiers from the Pennsylvania Emergency Management Agency and the Pennsylvania Office of the State Fire Commissioner (OSFC) shared their dedication to training emergency responders so they are prepared if a pipeline is compromised. In fact, more than 500 emergency responders have received pipeline training provided by the OSFC.
“It is our job as policymakers to ensure that the public remains safe and that private industry, as well as state and local governments, do everything possible to prevent dangerous emergency situations from occurring in our communities,” Rep. Barrar said. “Together, we must enhance safety measures to protect the public.”
Those presenting comments at the hearing included--
-- Representatives Chris Quinn (R-Delaware) and Carolyn Comitta (D-Chester);
-- Tim Boyce, director of the Delaware County Department of Emergency Services and county emergency management coordinator;
-- Joseph McGinn, vice president of Public Affairs and Government Relations for Energy Transfer/Sunoco Pipelines;
-- Bill Godsey, president and chief executive officer for Geo Logic Environmental Services;
-- David Padfield, acting director of the PA Emergency Management Agency;
-- Bruce Trego, State Fire Commissioner;
-- Bibianna Dussling, veteran naval officer and co-president of Middletown Coalition for Community Safety;
-- Eric Friedman, president of Andover Homeowner’s Association Inc. and MCCS board member;
-- George Alexander, leadership team member for Del-Chesco United for Pipeline Safety;
-- Gladys Brown Dutrieuille, chairman of the Public Utility Commission; and
-- Paul Metro, manager of the safety division of the bureau of investigation and enforcement of the Public Utility Commission.
Rep. Stephen Barrar (R-Delaware) serves as Majority Chair of the Committee, and can be contacted by calling 717-783-3038 or by sending email to: Rep. Chris Sainato (D-Lawrence) serves as Minority Chair and can be contacted by calling 717- 772-2436 or by sending email to:
(Photo: Rep. Barrar.)
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IFO: First Quarter Natural Gas Production Grew 14.7 Percent In Pennsylvania

On May 31, the Independent Fiscal Office released its quarterly report on natural gas production in Pennsylvania which found total production grew 14.7 percent during the first quarter of 2019 to over 1.653 trillion cubic feet, compared to the first quarter in 2018.
The number of producing natural gas wells increased from 7,916 in the first quarter of 2018 to 8,765 in the first quarter this year.  The number of non-producing wells drop slightly. The total number of wells (producing, non-producing) increased 7.7 percent over last year from 10,125 in 2018 to 10,906 so far in  2019.
The top 5 producing counties are Susquehanna, Washington, Greene, Bradford and Lycoming counties.
[Note: In the current debate over the Act 13 drilling impact fee and a proposed natural gas severance tax, proponents of a severance tax note it is based on natural gas production which has been increasing significantly, where the Act 13 fee is a fee on each well.]

Southwestern PA Water Resource Center Hosts 5 Workshops On Stormwater, Flooding In June, July

The Southwestern PA Commission’s Water Resource Center and its partners will host a series of 5 workshops in June and July on a variety of critical stormwater pollution reduction and flooding topics.  The workshops include--
-- June 12: Advanced Floodplain Management In PA, Cranberry Township Municipal Center Council Chambers, 2525 Rochester Road, Cranberry Township, Butler County.  8:30 a.m. to 5:00 p.m. Click Here to register.
-- June 13: Pennsylvania Flood Insurance Roundtable, Fugh Memorial Social Hall, 27 Crescent Ave., Etna, Allegheny County 9:00 a.m. to 1:30 p.m. Click Here to register.
-- June 19: Adjusting Your Program To New MS4 Stormwater Requirements, by Mike LaSala, Landstudies. Community and Recreation Center at Boyce Mayview Park, 1551 Mayview Road, Upper St. Clair, Allegheny County from 9:00 a.m. to Noon.  Click Here to register.
-- June 20: Adjusting Your Program To New MS4 Stormwater Requirements, by Mike LaSala, Landstudies. Hempfield Township Municipal Building, 1132 Woodward Drive, Greensburg, Westmoreland County. 9:00 a.m. to Noon.  Click Here to register.
-- July 24: National Flood Insurance Program: I-Codes And Substantial Damage/ Improvement. Community and Recreation Center at Boyce Mayview Park, 1551 Mayview Road, Upper St. Clair, Allegheny County. 8:30 a.m. to 4:00 p.m.
Click Here for more information on these and other workshops coming up.
For more information on programs, initiatives, other upcoming events and assistance available, visit the Southwestern PA Commission’s Water Resource Center website.

June 22 5th Annual Great Outdoor Picnic In Centre County To Introduce Kids To Outdoor Sports

The Wildlife For Everyone Foundation and the PA Federation of Sportsmen and Conservationists will are hosting the 5th Annual Great Outdoor Picnic at Penn's Cave & Wildlife Park in Centre Hall, Centre County from 11:00 to 4:00 p.m.
The Great Outdoor Picnic offers kids an opportunity to try their hand at the tried-and-true outdoor sports of fly fishing, archery and target shooting.
Do you remember when your mom told you to go out to play on a summer morning and then had to call you in for dinner eight hours later?
If you do, you’re probably a Baby Boomer or Generation Xer; on average kids today don’t view going outside as a desirable source of recreation. Indoor and virtual recreation options have trumped nature
According to the DCNR-sponsored PA Statewide Comprehensive Outdoor Recreation Plan, which surveys more than 10,000 residents every five years, the majority of respondents cited mental and physical health as the main benefit derived from being outdoors.
Nature is good for our well-being.
At a recent WFEF-sponsored clay shoot, youth participants age 17 and under noted that their interest in shooting was rooted in the fun and skill required, as well as the opportunities the sport presents to get outside and be with family.
This family event is designed to introduce kids to the outdoor sports.
These skill sets are typically handed down from parent to child in an effort to pass on a tradition from which much enjoyment has been derived.
Apart from the hunt outcome or catch, the memories of fishing or hunting with multi-generational relatives and friends who serve as mentors, supporters and teammates, arouse feelings that can’t be replicated in other pursuits.
The best part is that these sports have to take place outside, in the beautiful Pennsylvania outdoors.
The Great Outdoor Picnic offers youth the opportunity to experience fly fishing, B B gun shooting and archery.
Representatives from state agencies and organizations including the Game Commission, Fish and Boat Commission, United Bowhunters, National Wild Turkey Federation, and the PA Trappers Association, among others, will be present to assist inexperienced youth (and adults) with valuable tips and information.
Hourly drawings will give away a B B gun and starter fly fishing rod to a lucky youth.
Other attractions include the opportunity to build a Bluebird nesting box, demonstrations highlighting K9 field skills, wildlife chainsaw carvings, and the chance to see and learn about a red fox and variety of Pennsylvania turtles.
An old-fashioned picnic lunch is free to every ticket holder and charge.
Adult admission is $100 and includes 2 adults and an unlimited number of kids age 17 and under.
Every adult who purchases a ticket is entered into the Super Raffle for 71 outdoor-themed prizes valued over $37,000! Prizes include an ATV, kayak, Jon Boat, camping gear, handguns, long guns, gift cards to Cabela’s in addition to numerous other items.
The drawing will be continuous throughout the afternoon and winning tickets go back into the drawing. Raffles start at Noon and food is served from Noon to 3:00 p.m.
Primitive camping (no hookups) is offered Friday and Saturday night on the grounds of Penn’s Cave & Wildlife Park. Interested groups and individuals need to contact the Wildlife for Everyone Foundation office at 814-238-8138.
Tickets may be ordered in advance online or call 814-238-8138 for more information.  Click Here to download a flyer about the picnic.
The Annual Great Outdoor Picnic is sponsored by the Wildlife for Everyone Foundation and the PA Federation of Sportsmen and Conservationists.

Senate Environmental Committee To Consider Bills June 4 To Pay Drilling Rights Owners, Change Definition Of Pollution

The Senate Environmental Resources and Energy Committee is scheduled to meet June 4 to consider a number of significant and controversial bills in opposition to the fracking moratorium in the Delaware Watershed, nutrient reduction procurement legislation and a bill that would loosen the requirements for reporting spills and redefine what constitutes pollution under the state Clean Streams Law.
The Committee will also consider the Senate version of legislation-- Senate Bill 108 (Yaw-R-Lycoming)-- to create a check off on vehicle and driver’s licenses for a Keystone Tree Fund to support the development of riparian buffers.
The House version-- House Bill 374 (Everett-R- Lycoming)-- has been stuck on the House Calendar since it was reported out of Committee on February 19.
The other bills include--
-- Compensate Gas Rights Holders In Delaware Watershed: Senate Bill 305 (Baker-R- Luzerne) would require the Delaware River Basin Commission to reimburse oil and gas rights holders for the value of their rights if DRBC adopts a moratorium on fracking in the watershed. Similar legislation was reported out of the Committee last session. It is not known whether there will be any amendments to the bill.
The House Environmental Resources and Energy Committee reported out its version of the bill-- House Bill 827 (Fritz-R- Wayne) on March 26 and it is now on the House Calendar for action.  Click Here for background on the issue.
-- Nutrient Procurement Program: Senate Bill 575 (Yaw-R-Lycoming) was just introduced May 31. It would establish a procurement program for nitrogen, phosphorus and sediment reductions needed to comply with the Chesapeake Bay Watershed pollution reduction goals and only applies to the Chesapeake Bay Watershed in Pennsylvania.  It would appropriate $20 million from the General Fund to buy reductions after a bidding process. It sets aside 20 percent of the reductions (not the funding) to benefit small farmers in most need of financial assistance. It is not known whether there will be any amendments to the bill.
Last September, Matt Johnston of the University of Maryland Chesapeake Bay Program and Dr. Emily Trentacoste of the U.S. Geological Survey presented the PA Chesapeake Bay Watershed Planning Steering Committee with the list of the top 11 most cost effective practices to reduce nitrogen going to the Chesapeake Bay based on all this experience and data in the Chesapeake Bay Program (page 73 of his presentation).
The practices include alternative crops on farmland at $1/pound of nitrogen reduced to exclusion fencing with grass buffers at $6/pound.
In between are-- less expensive to more-- were water quality conservation plans, grass buffers on row crops, barnyard runoff control, water control structures, wetland restoration, forest buffers on row crops ($2/pound), narrow buffers on row crops, narrow forest buffers on row crops and nutrient management on the land.
The small farmers and landowners that need the financial help to install these much cheaper practices per pound of pollutant removed are very, very unlikely to participate in the bidding process set up in this bill because they individually could not deliver the thousands of pounds of reductions envisioned through this process.
Only more expensive nitrogen removal technologies based on per pound of nitrogen removed could afford to bid in this process.  If the only people who can bid are the more expensive options, this process will guarantee it presents agencies with the choice of only picking expensive options.

And setting aside some of the more expensive reductions for small farmers does not make them any cheaper.
An existing, competitive Nutrient Credit Auction Program run by the PA Infrastructure Investment Authority resulted in nitrogen credit sales of $2.25 per pound last September.  The trouble is, the more expensive pollution reduction technology cannot compete in this program because their costs are too high.
-- Changing Spill Reporting Requirements: Senate Bill 619 (Yaw-R-Lycoming) makes fundamental changes to the definition of water pollution under the state Clean Streams Law by saying an accidental spill only constitutes pollution if it violates a numeric surface water quality standard in DEP’s Chapter 93 regulations.
It is not known whether there will be any amendments to the bill to address it's weaknesses.
Both DEP and the Fish and Boat Commission use the current definition of pollution to protect water quality in surface and groundwater as well as aquatic life in streams, especially when there is a spill.
The bill also makes changes to spill reporting requirements by saying a person or company who caused a spill must first make a determination if the spill violates water quality criteria under Chapter 93 or if it exceeds federal reporting requirements (1,000 gallons in any one incident or 42 gallons in each of 2 discharges) before reporting a spill and then only after they take into account the steps they have taken to control or remediate the impact of the spill.
Changing Definition Of Pollution
The bill would add this language narrowing the definition of pollution in the Clean Streams Law: “An accidental discharge, spill or release that does not cause a violation of any of the numeric water quality criteria under 25 Pa. Code Ch. 93 (relating to water quality standards) for the receiving water does not constitute pollution.”
As written, the new definition would not consider a spill or discharge to groundwater as pollution, if it does not cause a violation of a numeric surface water standard in Chapter 93.
Chapter 93 protects water quality by protecting the designated water uses of streams and rivers such as for water supply, aquatic life, fishing and recreation.  This concept is fundamental to the regulation and reporting of pollution under state and federal law across multiple programs.
Every stream and river and larger stream segment in the Commonwealth is classified in one of 16 protected uses-- Aquatic Life (4), Water Supply (5), Recreation and Fish Consumption (4), Special Protection (2) or Navigation (1) (Section 93.3).
In addition, there are a series of 10 Statewide Water Uses protecting all surface waters (Section 93.4).
There are very few numeric water quality criteria in Chapter 93, in fact there are only 15 specifically named in Section 93.7 -- including alkalinity, ammonia nitrogen, bacteria, chloride, color, dissolved oxygen, fluoride, iron, manganese, nitrite plus nitrate, osmotic pressure, pH, Phenolics, sulfate and temperature.
Section 93.7 adds a general requirement that, “The list of specific water quality criteria does not include all possible substances that could cause pollution. For substances not listed, the general criterion that these substances may not be inimical or injurious to the existing or designated water uses applies.”
Section 93.6 also says “Water may not contain substances attributable to point or nonpoint source discharges in concentration or amounts sufficient to be inimical or harmful to the water uses to be protected or to human, animal, plant or aquatic life.
“In addition to other substances listed within or addressed by this chapter, specific substances to be controlled include, but are not limited to, floating materials, oil, grease, scum and substances that produce color, tastes, odors, turbidity or settle to form deposits.”
Again, not numeric water quality standards.
Chapter 93.4 also protects High Quality and Exceptional Value Waters by saying the stream’s existing water quality can not be degraded from the chemical and biological values established during a formal assessment of stream water quality.
Again, they are not necessarily all numeric water quality standards, especially for protecting aquatic life, and they are specific to a specific stream, river or specific stream segments.
Under the change in definition of pollution offered in this bill, neither DEP nor the Fish and Boat Commission could require the cleanup of a spill, require the company to fix the problem that caused a spill or take other enforcement actions like assessing penalties or natural resource damages against an individual or company unless a spill violated the “numeric water quality criteria under 25 Pa. Code Ch. 93.”
If a spill temporarily or irreparably harmed aquatic life, temporarily or permanently prevented a stream or river from being used according to its designated use, without violating a numeric standard, neither DEP nor the Fish and Boat Commission could take any action.
Importantly, the new language would also rule out taking any action against anyone causing a spill that affected groundwater and not surface water, if the spill did not violate a numeric water quality criteria in Chapter 93.
Spill Reporting
DEP’s regulations in 25 Pa Code Chapter 91.33 require any individual or company that spills a “toxic substance or another substance which would endanger downstream users of the waters of this Commonwealth, would otherwise result in pollution or create a danger of pollution of the waters, or would damage property, is discharged into these waters—including sewers, drains, ditches or other channels of conveyance into the waters—or is placed so that it might discharge, flow, be washed or fall into them” to notify DEP of the spill.
They must also notify known downstream users of the water, like a drinking water company, a farmer withdrawing water for irrigation or industrial user, of the spill so they can can appropriate steps to protect their systems.
The individual or company spilling the substance must also immediately take steps to prevent injury to property and downstream.
The bill says spills only need to be reported, NOT when they “create a danger of pollution of the waters, or would damage property,” but rather only when--
-- The individual or company first makes a determination the spill violates surface water quality criteria under Chapter 93; or
-- If it exceeds federal reporting requirements (1,000 gallons in any one incident or 42 gallons in each of 2 discharges) and only after they take into account the steps they have taken to control or remediate the impact of the spill; and
-- Only after taking into account any control and remedial measures they have taken.
Ironically, the spill reporting requirements would require notification of spills affecting groundwater because it uses the term “waters of the Commonwealth,” but because of the proposed change in the definition of pollution, neither DEP nor the Fish and Boat Commission could take any action against the individual or company responsible for the spill if it did not violate numeric water quality criteria for surface waters.
Determining Violations Of Water Quality Standards
The practical realities of making a determination if numeric water quality standards were violated during a spill emergency under this bill would require a company or individual to--
-- Know the precise chemical composition of the material being spilled and the amount and if it isn’t known, to take, analyze and report those results [getting test results in an emergency timeframe would not be possible and even the amounts are frequently not know at the time of a spill, especially to groundwater];
-- Know the classification, designated use and any special numeric water quality standards in place at the precise point the spill would enter a surface water [possible, but unlikely, especially in circumstances where a spill happens from a tank truck, pipeline or similar sources]; and
-- Taking, analyzing and reporting the results of water samples upstream, at the point of the spill and downstream of the spill to determine if the a numeric standard was violated at the exact time of the spill [not something that can be accomplished during an emergency caused by a spill].
Likewise, if DEP or the Fish and Boat Commission wanted to take any compliance or enforcement action for a spill with the change in definition of pollution proposed in Senate Bill 619, they would have to prove a numeric water quality standard was violated at the exact time of the spill, which would not be possible after the fact.
The sweeping changes made by Senate Bill 619 would fundamentally change the how Pennsylvania’s surface and groundwater is protected from pollution, significantly restrict the ability of DEP and the Fish and Boat Commission from taking action to require the cleanup and prevention of spills and to assess penalties and to the requirements for reporting spills.
Click Here for a sponsor summary of the bill.
The meeting will be held in Room 8E-B East Wing of the Capitol starting at 9:30.  Click Here to watch the meeting live online.
Sen. Gene Yaw (R-Lycoming) serves as Majority Chair of the Senate Environmental Committee and can be contacted by calling 717-787-3280 or sending email to:   Sen. John Yudichak (D-Luzerne) serves as Minority Chair and can be contacted by calling 717-787-7105 or sending email to:
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