PA Environment Digest Blog: Environmental Hearing Board Allows Protect PT Appeal Of Olympus Shale Gas Well Permits In Westmoreland County To Proceed; Olympus Was Trying To Deprive Protect PT Of Its Rights

On January 10, the Environmental Hearing Board denied a motion by Olympus Energy, supported by the Department of Environmental Protection, to declare an appeal of two shale gas permits in Westmoreland County filed by Protect PT as moot because the wells have already been drilled and fracked.

The Protect PT appeal involved two well permits on the Metis shale gas well pad-- wells 2M and 4M-- in Penn Township, Westmoreland County.

Protect PT filed its appeal on March 10, 2023, asserting that the Department’s issuance of the permits--

-- Violates Article I, Section 27 of the Pennsylvania Constitution [Environmental Rights Amendment] because it fails to take into account Olympus’ compliance history;

-- Allows the introduction of PFAS, PFOA ['forever chemicals'] and other chemicals into the environment without properly regulating or limiting their use; and

-- Fails to require full disclosure of those chemicals.

The EHB opinion says Olympus Energy drilled, fracked and completed the wells between August 22, 2023 and October 13, 2023.

On October 20, 2023, Olympus Energy filed a motion to dismiss the appeal as moot. The motion was supported by a memorandum from DEP.

The EHB pointed out "There are exceptions to mootness, including the following: (1) where the action complained of is capable of repetition but likely to evade review, (2) where issues of great public importance are involved, or (3) where a party will suffer a detriment without a decision by the Board."

"Any one of those circumstances may justify retaining jurisdiction."

Protect PT conceded the wells were drilled and fracked, but argued "this case should be allowed to proceed under exceptions, namely, that the action involved in this appeal is capable of repetition but likely to evade review and, second, that the issues of public importance."

James Cirilano, a Community Advocate for Protect PT, said they knew Olympus would repeat the actions because they already had.

“In June 2022, we [Protect PT] appealed the grant of the drill and operating for 3M, 5M and 7M all on the Metis well site,” said Cirilano. “And then Olympus drilled them, they had flowback, they completed the wells, they asked us to dismiss the appeal based on mootness and we agreed.”

“Then they got the permits for 2M and 4M and we appealed and then they drilled those two wells again and they asked us to dismiss on the basis of mootness again and we said no,” explained Cirilano. We’re not going to do that. You’re obviously playing… you are impairing our rights… you’re playing a game. We appeal and you [Olympus] drill before [the appeal] could be heard. That’s not fair.”

“So that’s what we said, and basically that’s what the Environmental Hearing Board found. You can’t keep on doing this. You are depriving the appellant of their rights to a hearing,” said Cirilano. “They [EHB] are going to hear all the facts now on 2M and 4M. Complete discovery and everything else.

The EHB did agree saying it believes the case falls within the first exception to mootness-- "where the action complained of is capable of repetition but likely to evade review."

Olympus and the Department also contend that Protect PT could have sought a supersedeas [a preliminary injunction of Olympus' drilling] to prevent the drilling and completion of the wells until such time as its request for relief could be addressed.

The Board said, "Protect PT strongly opposes this suggestion, asserting as follows: Given the facts and circumstances of this case, it would be exceedingly difficult, if not impossible, to make a non-speculative determination on the chance of success on the merits.

“Appellant needs to have access to discovery to gain knowledge of the chemicals that are being deemed “proprietary” in order for their assertions to be validly assessed.

“Without knowledge of the types of proprietary chemicals used, it is impossible for Appellant to provide anything but speculation as to 1) the types of chemicals being used, 2) the dangers of those chemicals to health and the environment, and 3) the likelihood that they might be released into the environment. Given those constraints, a petition for supersedeas is almost certainly doomed to fail."

The EHB said, "Requiring Protect PT to obtain a supersedeas in order to reach the merits of its appeal seems to us an unfair and inappropriate burden under the facts of this case."

The EHB also said, "We further find that the appeal raises questions of public importance that should be allowed to proceed to a hearing."

Citing another EHB decision, the Board said-- "We should hesitate before depriving a party of its right to due process before the only forum that can provide an opportunity to be heard at what may be the only time that party will have that opportunity."

Click Here for a copy of the EHB opinion.

One of the Environmental Hearing Board’s new judges-- MaryAnne Wesdock-- wrote the opinion and signed the order.

Visit the Protect PT website to learn more about programs, initiatives and upcoming events.

Olympus Very Concerned About Its Compliance History

During a May 10, 2023 Commonwealth Court hearing, an attorney for Olympus Energy LLC said the hundreds of notices of violation issued by DEP to the company should not be admissible in local land use proceedings because they do not prove the company’s shale gas drilling operations have an adverse impact on the environment “beyond the normal that would be expected from any oil and gas development.”

The case involves an Olympus Energy land use application for the Dionysus shale gas well pad submitted to West Deer Township, Allegheny County in 2019.

In December 2021, the Township found the shale gas well pad proposed by Olympus failed to meet their zoning ordinance setback requirements of at least 650 feet from preexisting buildings.

The Township also concluded “with a high degree of probability that the proposed deep well site would substantially affect the health, safety and welfare of the community beyond what is normal for this type of use,” according to Bridget Holbein, Commonwealth Court Office of Legal Counsel.

The determination was based in part on the company’s DEP compliance record. Read more here.

601 Separate Violations

In October, 2022, the Environmental Integrity Project, Food & Water Watch, Mountain Watershed Association, the Youghiogheny Riverkeeper, and individual citizens raised serious environmental compliance concerns about Olympus Energy as part of their comments on an erosion and sedimentation control permit for a proposed Heracles shale gas drilling pad in Elizabeth Township, Allegheny County.

The groups got a printout from DEP’s Oil and Gas Compliance Database showing between February 21, 2018 and March 11, 2022 showing 601 instances of non-compliance (unique Violation IDs) reported for 13 unique DEP permits (unique Site Names) associated with Olympus as the Operator.

Of the 601 non-compliances, 75 are specifically violations of the state Clean Streams Law (CSL).

The groups said, "A comparison of Olympus’s DEP violations per well drilled revealed that Olympus had 735% more violations per well drilled than the average for the top 20 PA operators (Deep Well Site IDs only, excluding pipeline violations).

“Further, Olympus had 296% more violations per well drilled than the next highest operator.

“It was also revealed that Olympus has 548% higher fines per well drilled than the average for the top 20 PA operators and 163% more fines per well than the next highest operator." Read more here.

Pipeline Crashing Thru Home

On December 30, 2022, KDKA TV in Pittsburgh broadcast an exclusive report about a natural gas pipeline that broke loose from its cribbing while under construction and crashed into and through a Westmoreland County home.

The KDKA report said Hyperion Midstream, a subsidiary of Olympus Energy, was responsible for the pipeline crashing into the Ford’s home and the company issued this statement--

“On the evening of December 28, 2022, Hyperion Mainstream identified that a section of pipe being stored in connection with the construction of the Porter to Zeus Pipeline released from its cribbing and impacted a private home. This section of pipe has been removed from the residence, and Hyperion is working closely with the resident." Read more here.

NewsClip:

-- TribLive: Olympus Energy Contends Natural Gas Compressor Station For Penn Twp. Not Harmful To Environment In Westmoreland County

PA Oil & Gas Industry Public Notice Dashboards:

-- PA Oil & Gas Weekly Compliance Dashboard - Jan. 4 to 12 - 9 More Abandoned Conventional Wells; Leaking Wastewater Tanks; Rager Mountain Gas Storage Area Cleanup Continues; Pipeline Land Slips [PaEN]

-- PA Oil & Gas Industrial Facilities: Permit Notices/Opportunities To Comment - January 13 [PaEN]

-- DEP Posted 61 Pages Of Permit-Related Notices In January 13 PA Bulletin [PaEN]

2023 Oil & Gas Compliance Reports:

-- DEP Issued At Least 512 Violations To 95 Conventional Oil & Gas Operators For Abandoning Wells Without Plugging Them In 2023; 10 Shale Gas Operators Were Issued NOVs For Abandoning Wells [PaEN]

-- DEP Issues Record 6,860 Notices Of Violation To Conventional Oil & Gas Operators In 2023-- Nearly 52% More Than In 2021; ‘Culture Of Non-Compliance’ Continues [PaEN]

-- 2023 Shale Gas Operator Compliance Report: 1,310 Violations; Explosions; Pad Fire, Evacuation; Uncontrolled Gas Venting; Frack-Outs; Polluting Water Supply; Spills; Pipeline Crashing Thru A Home; More [PaEN]

-- PA Environment Digest: Articles On Oil & Gas Facility Impacts