Saturday, January 27, 2024

Environmental Hearing Board Denies Lackawanna Energy Center Power Plant Motion To Dismiss Boro Of Jessup’s Appeal Of DEP Air Permit

On January 25, 2024, the
Environmental Hearing Board denied a motion by the Lackawanna Energy Center natural gas-fired power plant to dismiss the portion of the Borough of Jessup’s appeal of a DEP Title V Air Quality Permit saying the permit is inconsistent with the local Conditional Use Decision and Host Municipality Agreement.  [Docket: 2023-068]

The Board allowed the appeal to continue on its merits.

             On August 31, 2023, the Borough of Jessup in Lackawanna County appealed the Title V Air Quality Permit for the natural gas-fired power plant operated by the Lackawanna Energy Center, LLC in part on the grounds the permit was inconsistent with with the Air Quality Plan Approval issued by DEP and the Host Municipality Agreement and Land Use Conditional Use Decision adopted by the Borough.  

Among other provisions in the 2016 Conditional Use Decision, it required the operation of the Lackawanna Energy Center to “conform to all representations made” by the Center in its application and at all public hearings, and these conditions.

Among other provisions, the Host Municipality Agreement required the Center to “abide by all final and non-appealable conditions of the conditional use permit approval issued by the Borough.”

On January 25, the Environmental Hearing Board denied the permitee’s motion to dismiss certain objections raised in the Borough’s appeal related to the Conditional Use Decision and the Host Municipality Agreement in DEP’s issuance of the Title V Air Permit.

The permitee contended the EHB had no jurisdiction to consider these objections.  DEP filed a memoranda in support of the Lackawanna Center’s motion to dismiss.

The EHB concluded-- “The Department considered the zoning matters [Conditional Use Decision and the Host Municipality Agreement] during its permit review, so it is appropriate for the Board to evaluate on appeal.”

The Board noted “The Department tells us that it referenced the Conditional Use Decision at least 19 times in the Department’s response to public comments document.  That fact alone is enough to warrant denial of the motion to dismiss.”

“LEC and the Department say we must dismiss these objections because the Borough has not sufficiently detailed how the Title V permit is “inconsistent” with the Conditional Use Decision, and because the Borough has not identified “any legally significant inconsistency” between the permit and the Conditional Use Decision.

“However, these arguments have more to do with whether there is adequate support for a claim, not whether the Board can entertain a claim at all on its face. An evaluation of the merits is not something that comes into play in deciding a motion to dismiss.”

The Board also pointed out discovery in this appeal is far from over.

“In Protect PT, supra, (Opinion and Order, June 29, 2023), we denied a motion to dismiss that argued that certain claims pertaining to the use of PFAS were speculative in an appeal of unconventional gas well permits. 

“We found the motion to dismiss was premature because discovery was continuing: “We cannot simply assume in the context of a motion to dismiss that an appellant’s claims are speculative where discovery is still ongoing.” 

“The same is true here. LEC and the Department do not provide any legal support for the notion that we should be dismissing an appellant’s objections before the completion of discovery because those objections are allegedly too vague.”

Click Here for a copy of the opinion.

Click Here for documents related to this case.

PA Weekly Oil & Gas Industry Public Notice Dashboards:

-- PA Oil & Gas Weekly Compliance Dashboard - Jan. 20 to 26 - 15 More Abandoned Conventional Wells; Plugging Abandoned Shale Gas Wells; Revolution Pipeline Land Slip; Brief Compressor Fire; Crypto Mining?  What's That Pink Stuff?  [PaEN]

-- 5 Months Later, Roulette Oil & Gas Still Has Not Resolved Violations For Abandoning A Shale Gas Well Without Plugging It In Potter County  [PaEN]

-- XTO Energy Begins Plugging First Of 4 Abandoned Shale Gas Wells At Butler County Well Pad [PaEN]

-- 66 Months Later, DEP Worked With Conventional Well Owner, But Multiple Spills At A Well  Site Have Still Not Been Cleaned Up; No Protections In Place For Operators Or Taxpayers  [PaEN]

-- PA Oil & Gas Industrial Facilities: Permit Notices/Opportunities To Comment - January 27  [PaEN]

-- DEP Posted 84 Pages Of Permit-Related Notices In January 27 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

Related Articles This Week:

-- Senators Santarsiero, Comitta Introduce SB 581 Increasing Setback Safety Zones From Natural Gas Drilling Sites, Other Infrastructure, Based On Latest Science  [PaEN]

-- DEP To Require Unconventional Shale Gas Operators To Disclose Chemicals Used In Drilling, Fracking Operations Earlier In Well Drilling Process Thru PPC Emergency Plan Changes  [PaEN]

-- DEP Extends Deadline Of First Methane Pollution Report From Oil & Gas Facilities To June 1, 2024  [PaEN] 

-- Marcellus Drilling News: DEP Approves Catalyst Energy Oil & Gas Wastewater Injection Well In McKean County  [Jan. 26 Inspection Found Gas Bubbling From Well]  [PaEN]

-- PUC: Act 13 Drilling Impact Fees To Drop By 25% For Fees Due On 2023 Wells; Total Revenue To Drop By Nearly $105 Million  [PaEN] 

-- Environmental Hearing Board Denies Lackawanna Energy Center Power Plant Motion To Dismiss Boro Of Jessup’s Appeal Of DEP Air Permit  [PaEN] 

-- Environmental Hearing Board Denies Liberty Twp., Citizens Group Appeal Of DEP Tri-County Landfill Permit Over Threats Posed By Birds, Radioactive Oil & Gas Waste In Mercer County  [PaEN] 


-- The Energy Age Blog: The Story Of Bryan & Ryan Latkanich In Washington County

-- StateImpactPA - Rachel McDevitt: PA Tells Frackers To Disclose Chemicals, But It’s Not  Clear Exactly What Changes The Public Will See

-- The Energy Age Blog: Reality - ‘Proprietary’ Fracking Chemicals Remain Secrets, But What About The Bigger Picture?  

-- White House Announces Temporary Pause On Pending Approvals Of LNG Natural Gas Exports

-- Chester Mayor Says LNG Natural Gas Export Plant ‘Dead In The Water’  

-- AP: Liquefied Natural Gas: What To Know About LNG And Biden’s Decision To Delay Gas Export Proposals  [No Impact On LNG Now Going To Europe, Asia, DOE Can Allow Exemptions On Natural Security Grounds]

-- PA Marcellus Shale Coalition And Natural Gas Industry Partners Urge Biden Administration To Maximize US LNG Economic, Environmental And Security Benefits

-- Reuters: Texas Freeport LNG Natural Gas Export Unit Faces Month-Long Outage After Winter Storm

-- TribLive: 3 More Range Resources Shale Gas Well Pads Approved By Fawn Township, Allegheny County

-- TribLive Letter: Public Water Resources Should Not Used By Shale Gas Companies In Westmoreland County During Declared Drought - By Tom Pike, Protect PT

-- WKBN27: Environmental Advocate Appeal Of Tri-County Landfill Permit Denied By EHB, Citizens Concerned About Disposal Of Radioactive Oil & Gas Waste

-- Marcellus Shale Coalition: Act 13 Drilling Impact Fees Breathe Life Into County & Municipal Projects [Fee Revenue To Drop By Nearly $105 Million In 2024 ]

-- Bloomberg: Diversified Energy Faces Short-Seller Attack From ESG-Focused Snowcap; Faults Environmental, Asset-Retirement Practices  [Largest Conventional Oil & Gas Operator In PA]

[Posted: January 27, 2024]  PA Environment Digest

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