In a lawsuit filed by Seneca Resources of Houston against the Pennsylvania Department of Environmental Protection (DEP) over the issuance of a permit for the conversion of a natural gas well to a wastewater injection well in Highland Township, Elk County, a joint motion of stay filed by both parties on Sept. 23 in the Commonwealth Court of Pennsylvania was granted on Sept. 28. by President Judge Mary Hannah Leavitt.
The lawsuit was filed by Seneca’s outside counsel, Brian Wauhop of Buchanan, Ingersoll and Rooney, P.C. of Pittsburgh.
Seneca applied with the DEP for a permit which would allow them to convert a natural gas well to a wastewater injection well on Nov. 11, 2014. However, the permit was suspended on Aug. 12, 2015 after the DEP found out about Highland Township’s Community Bill of Rights ordinance, which they thought would conflict with the issuance of the permit.
However, Highland Township supervisors Mike Detsch, Glen Hulings and Jim Wolfe voted to rescind the ordinance on Aug. 10, seemingly ending the federal case brought against the township by Seneca. The township signed a consent decree with Seneca, which stated Seneca would not hold the township liable for any incurred damages up to the date which the Bill of Rights ordinance was repealed.
On Aug, 17, Seneca filed a Petition for Review in the Nature of a Complaint in Mandamus against the DEP in an attempt to compel the department into either issuing or denying the permit. The petition stated in spite of the rescinding of the Bill of Rights ordinance, “the department has still taken no action regarding the DEP permit application,” and that “the department has refused to discharge its duty to either issue the permit to Seneca or deny the DEP permit application.”
The petition said they applied with the DEP on June 25, 2012 to convert an existing depleted natural gas well into a UIC Class IID well. It goes on to say “UIC Class IID wells inject brines and other fluids associated with the production of oil and natural gas or natural gas storage operations (“Brine”). When oil and gas are produced, brine is also brought to the surface, which is separated from the oil and gas. Class IID disposal wells can only be used to dispose of fluids associated with oil and gas production.”
However, since the site in question for the well is within a half-mile of the township’s water source, the township supervisors enacted a Community Bill of Rights ordinance on Jan. 9, 2013. Seneca’s petition alleges “the original ordinance is unconstitutional and plainly illegal under both federal and Pennsylvania law.”
The township amended the ordinance on March 24, 2015, according to the petition. However, it reads “Despite the Supervisors’ representation to Seneca that the amended ordinance cured some of the original ordinance’s legal deficiencies, the amended ordinance contained the same substantive provisions and legal infirmities as the original ordinance.”
Section 3(a) of the ordinance states, “It shall be unlawful within Highland Township for any corporation or government to engage in the depositing of waste from oil and gas extraction,” while subsection (b) states “No permit, license, privilege, charter, or other authority issued by any state or federal entity which would violate the prohibitions of this ordinance or any rights secured by this ordinance, the Pennsylvania Constitution, the United States Constitution, or other laws, shall be deemed valid within Highland Township.”
In conclusion, Seneca believes “by refusing to issue or deny the UIC well permit when the application is administratively and technically complete and the department has not advised Seneca of any deficiencies, the department is refusing to perform a duty it has under the law. Seneca’s right to relief is clear and specific, and Seneca does not have any other adequate remedy at law.”
Seneca asked for a decision from the DEP as to whether or not the permit would be issued or denied, and for any court costs and fees incurred with the suit.
However, in the motion of stay request, both parties entered into an agreement, with Seneca requesting “that the department not make a decision on the application until Seneca Resources submits a plan for the department’s approval as an alternative to the draft proposed conditions,” and the DEP “has agreed to not make a decision on the application until after it has reviewed Seneca Resources’ plan.”
Leavitt granted the motion last Wednesday, ordering that “this matter is stayed pending the parties’ attempts to resolve the matter.” The order also stated Seneca will need to file a state report on or prior to Jan. 27, 2017 “in the event that this matter has not been discontinued or otherwise resolved.”
Rob Boulware, manager of stakeholder relations with Seneca Resources, declined comment to The Era. Officials from the DEP did not immediately return emails seeking comment to The Era.
