American Oil and Gas Reporter - April 2015 - 179

ConventionCoverage: Pennsylvania Independent Oil & Gas Association
we are trying to prevent the intervention,
because we do not know how to serve
process on a river."

Legal Options
Garber recounted a township meeting
he attended with Lucas in June, at which
a self-described community activist persuaded residents they should ban hydraulic
fracturing, well waste disposal, and underground injection. Garber admitted it
was tough for supervisors to stand up to
that type of public pressure.
Lucas pointed out under Pennsylvania
law, municipalities could be liable to pay
damages and attorneys' fees, but in all
too many instances, the size of the potential
award dwarfed the town or township annual budget. State laws probably immunize
supervisors from personal lawsuits or
offer a qualified good-faith immunity, if
the action in question is judged to be reasonable, he said.
"Municipalities may be vulnerable in
a lot of rural communities, where the
members of the board of supervisors also
are the road masters," Lucas said. "Many
of you have dealt with members of local
governments who also want you to pave
roads on which you had no impact. The
road degrades, and all of a sudden they
want tens of thousands of dollars in
permit fees and the like. That is an area
where local government officials are extremely vulnerable for personal-and not
municipality-liability."
According to Garber, in many of the
township-level disputes, the municipality's
solicitor separates himself from the supervisors' actions. In Indiana County, a
Grant Township supervisor was quoted
as saying his solicitor told him the CELDFproposed anti-oil-and-gas ordinance was
unconstitutional, but he was implementing
it anyway.
"The difficulty is, CELDF is representing these communities-as far as we
know-on a pro bono basis," Garber said.
"So until there is a damage award at the
end of the case, the townships are not
paying attorneys' fees or expert fees.
They think they are getting a free ride."
The traditional response to these township prohibitions is taking the municipality
to court and asking a judge to decide as a
matter of law that the ordinances violate
federal or state laws, he said.
PGE Lawsuit
PGE sued Grant Township after su-

pervisors adopted the CELDF-proposed
ordinance in June that prohibited a number
of oil and gas activities, including converting a production well into an injection
well, McManus said. While the legal fees
and delays are a problem, she indicated
the company was losing even more money
because while the case was pending, PGE
had to spend hundreds of thousands of
dollars every month to truck its waste
fluids to Ohio injection wells.
"The supervisors knew this was illegal
when they passed it; they knew it was
unconstitutional and their comment was
'let's go to the judge. He has to tell us it
is unconstitutional,'" she said. "The entire
budget for the township probably is about
one month's worth of the damages we
are incurring."
McManus said PGE was proceeding
with the court action to set a precedent

that Grant Township's ordinance was illegal and that similar attempts would not
benefit it or other townships. She pointed
to Mora County, N.M., where the county
board, again following CELDF advice,
approved a similar ordinance, which a
federal judge ruled unconstitutional.
Lucas noted that CELDF pro bono
assistance to local municipalities included
pledges to defend local officials in the
event of a lawsuit.
"If you ever are in that situation, you
want to ask: if CELDF is agreeing to defend this ordinance at no cost to you, is it
agreeing to indemnify the township and
you individually for any damage award
that may be assessed? I wonder if some
of these communities have accounted for
this," he asked.
r

Pennsylvania DEP Is Revising
TENORM, Enforcement Policies
CHAMPION, PA.-Technically enhanced naturally occurring radioactive
material, and the commonwealth's compliance and enforcement policies are two
of the regulatory issues for the Pennsylvania Department of Environmental Protection and the oil and gas industry, reported Paul Hart, president of Fluid Recovery Services Inc.
Leading off a presentation on regulatory
issues at the Pennsylvania Independent
Oil & Gas Association's winter meeting,
Hart reported DEP released a TENORM
study in January after a year of data collection and analysis.
"It concluded the public was safe, but
DEP wanted to do lots more work," Hart
said. "When we bring material from the
formation to the surface, DEP views it as
a contaminant, and it expects the industry
to address it at all levels."
DEP is concerned about long-term
exposure when fluids are used in road
spreading and deicing, waste is directed
to landfills, and workers cleaning pipes
and tanks, Hart reported. According to
agency estimates, 30 percent of transported
solids exceed Department of Transportation radiological limits.
Hart warned operators could expect
more scrutiny of possible water supply
contamination and more frequent well inspections as DEP examined its compliance

and enforcement policies. "DEP knows it
cannot visit every well every year, but it
is revising its procedures for inspections,
as well as for notices of violation," Hart
said. "DEP also is under pressure to
resolve NOVs on a shorter timeline, and
so it also changed that procedure."

The Pennsylvania Department of Environmental Protection is planning to do
more work on what it regards as the potential for technically enhanced naturally
occurring radioactive material found in
drilling waste, Paul Hart, president of
Fluid Recovery Services Inc., tells the
Pennsylvania Independent Oil & Gas Association's winter meeting, held Feb. 2425 in Champion, Pa.

APRIL 2015 179



American Oil and Gas Reporter - April 2015

Table of Contents for the Digital Edition of American Oil and Gas Reporter - April 2015

Contents
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