Three hour hearing on drilling cases before PA’s top court

Natural gas drilling rig - Lindsay Lazarski-WHYY
The Pennsylvania Supreme Court wrestled on Wednesday in Philadelphia with how to scrutinize government actions that affect publicly owned natural resources and citizens’ environmental and property rights in two cases with roots in shale gas drilling but with potential repercussions for other forms of development.
Laura Legere of the Pittsburgh Post-Gazette writes today:
During a dynamic morning session that lasted nearly three hours, the justices peppered attorneys on all sides with questions both sweeping and practical — such as whether the environmental rights described in the state constitution are fundamental rights and whether lawmakers have singled out the gas industry for special treatment.
One case, Pennsylvania Environmental Defense Foundation v. Commonwealth, concerns the state’s decision to lease publicly owned forestlands for gas development and use the money to balance budgets.
The other, Robinson Township v. Commonwealth, challenges several provisions in the state’s updated oil and gas law, including the validity of the state’s centralized method of reviewing municipal gas drilling ordinances and limitations on sharing information about gas development fluids that might affect drinking water or public health.
Six of the court’s seven justices heard oral arguments in the cases, including three who were presiding over their first days of arguments since being elected to the high court last year. Justice Michael Eakin, who was suspended in December, did not participate.
The justices seemed inclined to go back to the text of the state’s environmental rights amendment — Article 1, Section 27 of the constitution — to discern what should be expected of the government as the steward of Pennsylvania’s public natural resources. They did not give any clear sign of how they would define those standards.
In a surprising move, one of the Commonwealth’s attorneys Sean Concannon encouraged the court to do away with the current three-part harms and benefits balancing test that has for decades been the shorthand method for judging whether government actions comply with the state’s environmental rights amendment.
But he urged the court to adopt a reasonable replacement that will not stifle economic development or infringe on property rights.


 
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Jury awards $4.2 M to two Pa. families in fracking lawsuit

A Pennsylvania jury handed down a $4.2 million verdict in a lawsuit centering on water contamination from negligent shale gas drilling in Dimock, PA, a tiny town that made international headlines for its flammable and toxic drinking water, Sharon Kelly reports today in the DESMOG Blog.

The defendant in the lawsuit, Cabot Oil and Gas Corp., had strenuously denied that it had caused any harm to the plaintiffs or their drinking water. In 2012, the company reached a settlement with roughly 40 other residents along Carter Road in Dimock, but the terms of that settlement were never made public and included a “non-disparagement” clause that prevents those who settled from speaking out about their experiences with Cabot.

The verdict, which was reported by the Associated Press, comes as long-awaited vindication for the Hubert and Ely families, who had refused to settle in part because they wanted their voices heard, they said at a press conference when the trial began in Scranton on February 22.

The lawsuit had stretched on for roughly seven years, and the plaintiffs were at one point forced to represent themselves in court after being unable to find legal counsel following the settlement of the vast majority of the plaintiffs.

The Huberts and the Elys still live on Carter Road, hauling their water by truck – a chore that became far more cumbersome in the winter when hoses often froze and water tanks must be heated, Scott Ely, a former Cabot subcontractor turned whistleblower, had testified.

The Ely family, which owns the land on which the Huberts reside, would receive $2.75 million and the Hubert family $1.49 million, one local television station is reporting. Because the lawsuit had been narrowed dramatically before trial, the plaintiffs were not permitted to pursue Cabot for any harms done to their health, but only for the damage to property and the personal nuisance that the water contamination had caused.

The case has been closely watched by the oil and gas industry, which has often reached secret settlements in claims of drilling and fracking contamination – creating uncertainty about the frequency and extent of accidents and misconduct.

State and federal environmental regulators have cited non-disclosure agreements as a major hurdle preventing a full assessment of the risks related to the shale oil and gas drilling rush.

The lawsuit pitted solo practitioner Leslie Lewis and attorney Elisabeth Radow against a team of litigators and attorneys from Norton Rose Fulbright, a London-based law firm which in 2014 was the seventh highest-grossing law firm in the world.

 

 
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Radioactive contamination detected at PA metal shredder

Environmental agencies in two states have determined that scrap contaminated with low levels of radiation was shredded at a PSC Metals facility in Beaver Falls, Pennsylvania. Some of the scrap was later shipped to Ohio and triggered readings from radiation monitors at three facilities there.

Recycling Today reported on March 2:
The Ohio Department of Health (ODH) has issued several news releases pertaining to the incidents, with the most recent one issued Feb. 27, 2016. The agency indicates the radioactive scrap was detected at PSC Metals yards in Canton and Massillon, Ohio, and at a Tube City (TMS International) facility in Mansfield, Ohio.

According to the ODH, the department had radiation protection staff on-site at all three facilities in late February to conduct radiation testing and to ensure planning for the safe disposal of the contaminated scrap metal.

The contaminated scrap metal has been contained securely and does not pose a health risk to facilities’ employees or the general public, says Gene Phillips of the ODH Bureau of Environmental Health and Radiation Protection.

Phillips singles out the role of radiation monitors in detecting the contamination. “As a precaution, many scrap metal processing facilities have radiation alarms to monitor and detect radiation in incoming shipments for the safety of their employees and the general public,” he comments.

The source of the radiation is under investigation.
Phillips says, “Radiation can occur in scrap metal for a variety of reasons, including because the owner who sends it for recycling does not realize that the [obsolete] equipment contains small radioactive sources.”

Radiation surveys of contaminated scrap metal delivered to PSC Metals in Massillon showed a highest reading of 25 millirem per hour, equivalent to the radiation dose from two-and-a-half chest X-rays within one hour, ODH says.


 
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Two major drilling cases before Pa’s supreme court today

 
                                                                                        Ty Wright/Bloomberg                    
The Pennsylvania Supreme Court is scheduled to hear arguments in Philadelphia today in two major gas drilling cases with implications far
beyond the shale fields.
Laura Legere reported yesterday in the Pittsburgh Post-Gazette:
One case deals with the remnants of a landmark challenge to the state’s modern gas drilling law, while the second takes up significant state constitutional issues about public environmental rights that the court revived with a 2013 decision on the drilling law.
Advocates for business groups and some government agencies are hoping the state’s high court will settle the “flurry of confusion” left by the decision in the drilling law case, Robinson Township v. Commonwealth, and reassert decades-old expectations about the government’s role as the steward of public natural resources.
Conservation groups and environmental legal scholars hope the court will cement the central 2013 opinion in the Robinson Township case and set a path for courts to embrace the environmental rights described in the state constitution.
 

 
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Newark group, Sierra Club disagree over EPA river cleanup

EPA dredging
The EPA’s plan includes dredging 3.5 million cubic yards of sediment containing pollutants and toxic material from the Passaic River near Newark, NJ.
A Newark community group is defending the U.S. Environmental Protection Agency’s final plan to clean up the Passaic River, despite criticism by the New Jersey Sierra Club that the plan will fail to completely remove toxic chemicals in the severely contaminated waterway.
Jon Hurdle writes today in NJ Spotlight:
The EPA on Friday announced a $1.38 billion plan to remove 3.5 million cubic yards of sediment containing dioxin, PCBs, heavy metals, and some 100 other contaminants from the lower eight miles of the river, and then cap the riverbed with two feet of sand from bank to bank to contain remaining sediment.
The plan will be the country’s largest-ever environmental dredging project, said Judith Enck, the EPA’s Region 2 administrator, and follows years of analysis and discussion over how to clean up the badly polluted river after more than a century of industrial contamination.
The federal agency said the plan will improve water quality, protect public health, revitalize waterfront areas, and create hundreds of new jobs. “This plan is one of the most comprehensive in the nation and will help restore a badly damaged river,” said Enck, at an event attended by U.S. Senators Cory Booker and Robert Menendez, as well as Bob Martin, commissioner of New Jersey’s Department of Environmental Protection.
The river has been seriously damaged by decades of industrial pollution, notably from Newark’s Diamond Alkali factory which in the 1960s produced Agent Orange, a defoliant used in the Vietnam War. The operation resulted in contamination of the river and surrounding land with dioxin, a highly toxic substance.
The EPA’s program was immediately attacked by the New Jersey Sierra Club, whose director, Jeff Tittel, said it would not remove all the contaminants, so local residents would still be exposed to the cocktail of toxic chemicals that has contaminated fish and raised concerns about human health.
“The people in Newark and along the Passaic River have waited 40 years for a clean-up and now this toxic nightmare will continue,” Tittel said in a statement. “The EPA’s clean-up plan will not work because it will only cap the pollution.”
Tittel said the EPA should have chosen an earlier plan to dredge 8.3 miles to a depth of between 12 and 30 feet, which he said would have removed all the contaminants so that people could once again use the river for fishing and boating, as they did before the 1950s.
The EPA said there is a “reservoir of contaminated fine-grained sediment” approximately 10 feet to 15 feet deep in the lower eight miles of the river. Some 2.5 feet of that will be removed and then the riverbed will be capped with two feet of sand, except along the shoreline where the cap will consist of a foot of sand and a foot of material that will support habitat for fish and plants.
Tittel’s criticism was rejected by a community group that has contributed to the multi-year debate over how to clean up the river.
Debbie Mans, co-chair of the Community Advisory Group for the Passaic River Superfund Site, which backs the plan, called Tittel’s comments “frustrating” and claimed he was attacking the plan without understanding the issue.
“We’ve been meeting as a community group for six years and he has never come to any of our community meetings, never spoken with the community,” said Mans, who is also executive director of New York New Jersey Baykeeper, an environmental group that works to protect the harbor estuary. “The community is behind the proposal and I think it’s disappointing that a statewide group would try to step on top of them to say ‘we know what’s best’ when they haven’t spent the time in the community understanding it.”

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Legislative showdown nears over NJDEP water rules

Rarely used legislative override could prevent rules from being adopted or force DEP to rescind them

John McKeon

Assemblyman John McKeon (D-Essex)
In an unusual rebuke to the Christie administration, lawmakers moved a step closer to revoking a proposed rule that critics say will degrade New Jersey’s water and increase flooding, Tom Johnson writes in
NJ Spotlight.
The Democratic-controlled Assembly Environment and Solid Waste Committee yesterday voted along party lines to order the state Department of Environmental Protection to withdraw a yet-to-be adopted rule proposal that would overhaul flood-hazard, stormwater, and coastal-management regulations it proposed last summer.
The massive revamping of those rules is strongly backed by builders, business interests, and many in the farming community and just as staunchly opposed by environmentalists. To backers, the rules would eliminate redundancy and streamline and simplify complex rules that stifle economic growth, a priority of the DEP since the start of this administration.
“The amendments proposed by DEP threaten the very waters and natural habitats that these regulations are supposed to protect,’’ said Assemblyman John McKeon (D-Essex), the sponsor of the resolution (ACR-160).
If the resolution is passed by the Legislature, it would prevent the DEP from adopting the amended rules, or if adopted, to rescind them as against legislative intent. The override provision is a legislative tool rarely used by that body to challenges actions by the executive branch.
An identical resolution passed both houses in the last legislative session, but the DEP did not take any action on it. If the resolution wins approval again from both houses, it would revoke the rules, if adopted.
An identical resolution is scheduled to be considered by the Senate Environmentand Energy Committee on Monday, giving backers hope that the Legislature may approve the measure before it recesses for budget deliberations later this spring.

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