DEP?decision prevents brine spreading on roads
It was a long, winding legal road.
But an appeal of a Warren County woman filed against the Department of Environmental Protection has essentially resulted in DEP temporarily prohibiting – and reconsidering – the use of brine on roads for dust suppression.
The appeal was filed by Siri Lawson, Lindell Road, Farmington Township, last July by her counsel, Fair Shake Environmental Legal Services.
It specifically challenged DEP’s granting of a plan approval to Hydro Transport LLC, which had been contracted by Farmington and Sugar Grove Townships to apply brine on township roads.
When such plan approvals are appealed, the appeal goes before the Environmental Hearing Board.
Comprised of five judges, the hearings before the board are considered similar to non-jury civil trials at the Court of Common Pleas level, whose decisions go to Commonwealth Court when appealed.
Lawson’s appeal raised five objections
¯ That DEP approved “discharge of an industrial waste in the form of brine from oil and gas wells upon dirt roads in Farmington Township which causes or contributes to pollution…. Such discharge is not authorized by regulation, rule or permit.”
¯That the discharge was approved “without imposing operating requirements likely to protect the waters of the Commonwealth….”
¯ That regulations weren’t included to ensure air quality.
¯ That DEP authorized the disposal “of residual waste in violation of the Solid Waste Management Act’s permitting requirements.”
¯ That DEP “is without authority” to issue such plans.
Multiple entities attempted to intervene in the case. Farmington Township and PSATS – the Pennsylvania State Association of Township Supervisors – were granted permission while the Pennsylvania Grade Crude Oil Coalition and Damascus Citizens for Sustainability were not.
“Brine from oil and gas wells contains not only salts such as sodium, calcium and bromide but also radioactive elements such as radium and barium, as well as ammonium and iodide, among other potential pollutants,” Lawson’s attorney wrote in a filing. “(T)he spread of brine from conventional oil and gas operations for dust suppression and road stabilization has never been approved as a beneficial use in Pennsylvania…. In order for a residual waste, such as oil and gas brine, to be approved for beneficial use, the Department of Environmental Protection must issue a general permit…. A general permit has never been issued for the beneficial use of brine for dust suppression and road stabilization.”
They claimed that an attempt to identify brine as a beneficial use by DEP was undertaken in 20111 and withdrawn in 2012.
“Appellant admits that she has grave concerns regarding the Department’s legal authority to authorize the spread of brine through Plan Approvals.”
In their motion for permission to intervene, Farmington Township’s counsel noted that the township entered into the agreement with Hydro Transport LLC on May 9, that Hydro Transport LLC submitted for DEP plan approval on June 7 and that the approval was granted the following day.
“The beneficial use of brine for Roadspreading is a valuable tool utilized by Farmington Township, and other municipalities in the area, to provide dust control and prevent dust pollution,” their counsel argued, seeking to intervene in the appeal “to defend in utilizing the Roadspreading of brine in the future as a cost effective and environmentally safe method….”
A filing by Lawson argued that “to the contrary, the spread of brine increases dust pollution and townships….”
PSATS argued that their membership – which includes Farmington and Sugar Grove townships – “would have to discontinue their current arrangements with third-party brine spreading providers or cease their own operations. Then they would have to resort to significantly more expensive alternatives to control dust and stabilize township-owned roads.
“They will be forced to resort to far more expensive alternatives, such as re-traveling or paving roads, (that) will necessarily require those members to raise taxes on their residents or provide less, or lower quality, municipal services,” PSATS argued.
Amid flurries of legal filings, DEP filed a motion to dismiss the appeal, arguing that the township’s agreement with Hydro Transport LLC expired on December 21, 2017.
“The board no longer has the ability to grant effective relief and the Appellant has been deprived of a necessary stake in the outcome,” DEP asserted.
Lawson’s counsel argued that the issue is not moot “because the issue before the board is capable of repeating yet evading review…. Meaningful relief may be granted to appellant in the form of a finding of law.”
Counsel continued their argument: “(T)he Department’s attempt to characterize Hydro Transport’s Plan Approval as though it were in any way unique from another of the other Plan Approvals authorized by the Department on a yearly basis is meritless.” Noting that over 100 of these plans are approved annually within one or two days of submission, counsel asserted that DEP reversed its position on how it was able to approve the plan. “There is no requirement that would prohibit the Department from changing its position again.”
“Moreover, the Department has expressly repudiated its action and conceded that the brine described in Hydro’s 2017 plan approval is a residual waste that the Department cannot authorize to be disposed or beneficially used under the Solid Waste Management Act without a permit…. Appellant has thus obtained her requested relief…. The present appeal solely concerns the propriety of the Department’s action in issuing the 2017 plan approval…. The Department has conceded, in multiple filings with this board, that Hydro’s 2017 plan approval was wrongfully issued and that it will not be reissued to Hydro Transport LLC in the future under the present facts.”
In a May17 opinion from the Environmental Hearing Board, the Board concluded that “We find that this appeal is moot because we cannot grant effective relief to the specific action that is being appealed, the issuance of the Plan Approval to Hydro Transport…. The board cannot vacate or remand the Plan Approval back to the Department (because it expired) and thus there is no effective relief that the Board can provide to Ms. Lawson on the Department action challenged in this matter.”
The Board called DEP’s admission that the original plan approval should not have been granted as a “rather unusual concession on its part.”
“We do not believe that it would be proper to continue this matter challenging a particular Department action because of Ms. Lawson’s generalized opposition to the practice of brine spreading,” the Board continued in its opinion. “Ms. Lawson has, for all practical purposes, received the relief that she would be entitled to if she prevailed on the Lawson Motion or following a hearing in this matter.”
An attached order indicated that the Board elected to dismiss the appeal.