Subterranean Injection Control: US EPA Environmental Appeals Commission Examines Class II Permit Renewal Challenge | Mitchell, Williams, Selig, Gates & Woodyard, PLLC

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The EPA (Environmental Appeals Board) of the United States Environmental Protection Agency (“EPA”) petitioned in a May 6 decision challenging the renewal of a Class II underground injection control permit ( “UIC”). See UIC Call n ° 21-01.

Ms. Darlene Marshall (“Marshall”) asked EAB to review the EPA Region 3 re-issue of a permit to Windfall Oil & Gas, Inc. (“Windfall”).

The Class II injection well (“well”) is located in Brady Township, Pennsylvania.

The regulations of the Safe Drinking Water Act (“SDWA”) include minimum requirements for UIC permits. The EPA has not delegated the UIC program to the state of Pennsylvania. Therefore, EPA Region 3 issues such permits in the state.

The UIC program provides for injection wells to be divided into six classes. Class II storage wells include those used to inject fluids brought to the surface in natural gas storage operations or in conventional oil or gas production.

The most recent Class II license issued for the well dates back to 2015. This license had a five-year term that was due to expire on October 31, 2019. However, due to an error, the EPA issued a minor amendment correcting the expiration date for July 30, 2020.

The permit was reissued on December 13, 2020. It authorizes Windfall to construct and operate a Class II injection well subject to certain specified conditions. The well injection zone would be between 7,300 and 7,387 feet below surface level in the Huntersville Chert / Oriskany formation. In addition, the lowest groundwater source of drinking water is located approximately 800 feet below surface level and separated from the injection area by approximately 6,500 feet of shale and rock.

Marshall challenged the reissuance of the permit, raising six issues, including:

  • Selection of review area by the EPA
  • EPA treatment of wells outside the examination area
  • The potential for injection liquid to migrate or transmit to underground sources of drinking water
  • The potential for seismic activity near the injection well
  • Potential impacts of the well on the quality of drinking water
  • The absence of emergency planning conditions of the permit

EAB rejects the petition and the six issues raised, stating:

In Windfall I, the Commission ruled fairly on each of the substantive issues raised by the petitioner in this appeal, and the petitioner did not point out any factual or legal basis, or any new information in the administrative record of this permit, which would cause us to reconsider our previous analysis. 16 EAD at 773-814. The petitioner has also failed to demonstrate that the region clearly erred in re-issuing the permit in 2020. The permit re-issued in 2020 is designed to protect underground sources of drinking water and includes provisions for construction, d ‘operation, record keeping and monitoring that directly address the concerns of the petitioner. For each of the issues fairly raised in the petition, the Region explained its clearance decision in the administrative record, including the underlying rationale for the decision. The petitioner did not shoulder her burden of showing that the region’s decisions were clearly wrong. As for the seventy enumerated questions which are described in a few words in the petition, they do not meet the minimum procedural requirements of the appeal.

Note the reference to “seventy problems listed”. EAB did not consider these questions to be substantive and therefore dismissed them as not satisfying the procedural requirements of an appeal.

A copy of the decision can be downloaded here.

About Yvonne Lozier

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