Local officials retain some power over drilling

http://citizensvoice.com/news/local-officials-retain-some-power-over-drilling-1.934118

Local officials retain some power over drilling

BY ELIZABETH SKRAPITS (STAFF WRITER)
Published: August 9, 2010

When it comes to regulating natural gas drilling, the state Oil and Gas Act trumps local ordinances – mostly.

As is the case with methadone clinics and adult entertainment venues, municipalities and counties can’t keep natural gas wells out altogether. But local officials do have some power, such as the ability to limit wells to agricultural, manufacturing or industrial zones and bar them in residential districts.

“We – local land use authorities – can regulate the ‘where;’ we cannot regulate the ‘how.’ That power, to regulate the ‘how’ of natural gas drilling, rests entirely with the Commonwealth of Pennsylvania,” Luzerne County Zoning Hearing Board Chairman Larry Newman said after last week’s hearing on granting Encana Oil & Gas USA Inc. conditional use to drill 10 natural gas wells in Lake and Fairmount townships.

Municipal and county planning and zoning authorities do have some say in the matter of natural gas drilling in their communities, state officials say.

“They’re not completely pre-empted by any means under state law,” Department of Environmental Protection Secretary John Hanger said. “They do have a role.”

Drilling processes, techniques and materials are beyond the power of local zoning authorities, Hanger said. For example, a zoning hearing board cannot tell a natural gas company what kind of cement can be used in a well casing, he said. Instead, the Oil and Gas Act gives DEP the authority to set drilling standards.

Denny Puko of the state Department of Community and Economic Development said the Oil and Gas Act generally not only pre-empts local regulations of any type except for the Municipalities Planning Code and the Flood Plain Act, but goes a step further: although municipalities and counties can do things under those two statutes, they can’t regulate what the Oil and Gas Act regulates.

“They’re limited,” he said. “You can see there’s not a whole lot of room.”

But legal precedents are being set which can change that.

Puko cited three state court cases that clarified what counties and municipalities can and can’t do when it comes to natural gas drilling: Huntley & Huntley vs. Oakmont Borough; Penneco Oil Co. and Range Resources vs. the County of Fayette; and Range Resources vs. Salem Township (Westmoreland County).

In the often-cited 2007 Huntley vs. Oakmont case, Huntley & Huntley sought to drill a natural gas well in a residential subdivision in Oakmont Borough. Borough council denied the company.

The upshot of the case was the Supreme Court unanimously ruled that while the conditional use permit had been improperly denied, companies cannot drill in areas where zoning ordinances do not allow them. The more recent Penneco case is similar in nature.

In the Range Resources vs. Salem Township decision, the court ruled that the township’s ordinance overlapped and in some cases was more stringent than the Oil and Gas Act, making it “an attempt by the Township to enact a comprehensive regulatory scheme relative to oil and gas development within the municipality.”

Unlike in Huntley vs. Oakmont, which was about the “where” of natural gas drilling, Salem Township was trying to regulate the “how.” The court ruled against the township.

“It’s kind of narrow what a municipality can do, according to the court precedent,” Puko said. “I guess at this point, municipalities are left to interpret the law with their municipal solicitors, and act accordingly.”

The court cases are leading zoning officials and solicitors through what Attorney Jeffrey Malak calls “new, uncharted waters.”

Malak, who not only works with property on natural gas leases but also serves as the solicitor for several entities including the Back Mountain Community Partnership, has been researching the subject on behalf of the six member municipalities.

According to Malak, there are numerous provisions municipalities can try to get into their zoning ordinances, including:

• Locating wells in certain zoning districts with permission (conditional use).
• Keeping wells certain distances from occupied structures, public streets, roadways or lot lines.
• Screening, buffering and fencing requirements.
• Bonding the natural gas company to ensure responsibility for road maintenance and repair.

Ordinances to regulate dust, noise and light pollution are also possibilities.

However, Malak noted, “Just because we put it in the zoning ordinance doesn’t mean that it’s valid.”

In one of the municipalities where Malak serves as solicitor, Dallas Borough, the zoning ordinance – which is available at www.dallasborough.org – restricts natural gas well drilling to industrial zones and highway business districts. It has requirements including that drilling cannot take place within 200 feet of any occupied structure or 100 feet of any stream, spring or wetland.

The 100-foot setback from water is a DEP regulation, but municipalities can include that and other state requirements in their zoning ordinances, Malak said.

“It’s a lot of referencing state laws: ‘Hey, the state has this, we’re going to put this in too,'” he said.

As more cases and appeals make it through the state courts, they will give further guidance to municipalities, landowners and gas companies on what is permissible and what isn’t, Malak said.

“It’s an evolving field of law,” he said.

eskrapits@citizensvoice.com, 570-821-2072

Natural gas, unnatural risk: Hydrofracking endangers our water

http://www.nydailynews.com/opinions/2010/07/25/2010-07-25_natural_gas_unnatural_risk.html
Sunday, July 25th 2010

Natural gas, unnatural risk: Hydrofracking endangers our water

There is no higher priority for New York’s state and federal legislators than to put the brakes on the idea of opening areas upstate to the controversial form of natural gas drilling called hydraulic fracturing – “fracking,” for short.

While the technique has been around for 60 years, critics say the modern version of fracking is unsound, leaving broad swaths of land poisoned and polluted.

“Gasland,” an award-winning documentary that airs tonight on HBO (gaslandthemovie.com), shows communities in Pennsylvania, Colorado and elsewhere rife with sick people, animals that have lost their fur, and water so polluted that it actually ignites when a match is held near a kitchen tap.

The problem is a byproduct of modern fracking, which involves shooting millions of gallons of water and a cocktail of extraction chemicals deep underground – on average, 8,000 feet below the surface.  The pressurized water and chemicals shake loose natural gas that is then captured and piped away.

Remnants of the chemicals and half of the millions of gallons of water, however, stay behind and begin rising. The tainted water can end up polluting fresh drinking water, which tends to be only 1,000 feet below the surface.

Worst of all, a mysterious process called methane migration can leak combustible gas into the water table as well. That gives some residents in fracking areas tap water that explodes on contact with an open flame.

“It’s really quite shocking and strange and, and weirdly kind of thrilling when you see it,” the director of “Gasland,” Josh Fox, told me when describing the polluted water that turns to fire. “And then all of a sudden it hits: It’s really a huge problem.”

The film shows people assembling complicated 500-gallon bottled water systems, bemoaning lost property values and complaining of brain lesions, exhaustion and other health issues.

Fox blames the problem on the so-called Halliburton loophole of 2005, provisions in that year’s Energy Policy Act that exempted gas drilling companies from the Safe Water Drinking Act of 1974 and allowed them to not disclose the 500-plus chemicals that get shot underground during fracking.

Passage of the law set off a wave of fracking that has reached 34 states. Fox himself became aware of the trend when a gas company offered him $4,000 per acre to let them frack on land he owns near Delaware – an offer that would have brought him $100,000. After studying the process and its effects around the country, Fox rejected the money outright.

His land, like all of upstate New York, sits atop a vast underground deposit of natural gas, the Marcellus Shale, that stretches from New York to West Virginia and could be a veritable Saudi Arabia of natural gas.

Hopes of exploiting these and other major gas reserves are the reason energy magnate T. Boone Pickens made TV ads advocating more extraction of “clean, natural gas” to wean America off of foreign oil. Pickens was persuasive, patriotic and profit-driven. I just hope he plans more commercials to explain the potential of frack-induced pollution.

A growing number of people are already saying: Not so fast. The New York City Department of Environmental Protection has warned that fracking near the upstate watershed could pollute the drinking water for the 16 million people who live in or near our city.

Environmental groups are calling for a moratorium on leasing any land in New York for fracking, and Albany is considering a law imposing a one-year moratorium on fracking. A federal bill would give the federal Environmental Protection Agency the power to regulate fracking.

These are all good starts at what must be a top priority for elected officials: saving New York from environmental horrors that have already shown much of America the false promise of fracking.

elouis@nydailynews.com