Bear Lake Properties, LLC (Board decision, June 28, 2012)

Plain-English summary

EPA Region 3 issued two permits for Class II underground injection wells at the Bittinger site in Pennsylvania. Petitioners challenged the Region's treatment of drinking-water wells, well depth, gas wells, population growth, earthquake risk, and late-filed comments. The Board held that the record did not clearly show that the Region had identified and considered all drinking-water wells within the area of review, including the data and regulatory obligations it relied on. It remanded the permits for the Region to cure those record deficiencies and make detailed findings available for public review and comment. The Board denied review of the other challenges.

Decision snapshot

• Cited authorities: 40 C.F.R. §§ 124.6, 124.10, 124.13, 124.19, 144.6, and 146.23; 42 U.S.C. §§ 300h-300h-8
• Outcome: The permits were remanded for further findings on drinking-water wells, and review was denied on all other issues.
• Key point: A UIC permit record must show that the Region identified and considered accurate data on drinking-water wells within the area of review.

Full text (EPA EAB public release)

630 ENVIRONMENTAL ADMINISTRATIVE DECISIONS

          IN RE BEAR LAKE PROPERTIES, LLC
                             UIC Appeal No. 11-03

  ORDER DENYING REVIEW IN PART AND REMANDING IN
                      PART



                             Decided June 28, 2012



                                        Syllabus

   Mr. William A. Peiffer, Jr. and Mr. Paul T. Stroup (together “Petitioners”) petitioned

the Environmental Appeals Board (“EAB” or “Board”) to review the U.S. Environmental Protection Agency, Region 3’s (“Region”) decision to issue two Underground Injection Control (“UIC”) permits to Bear Lake Properties, LLC (“Bear Lake”), pursuant to Part C of the Safe Drinking Water Act (“SDWA”), 42 U.S.C. §§ 300h-300h-8, and EPA’s imple- menting regulations at 40 C.F.R. parts 124 and 144-148. The permits authorize construc- tion and operation of two Class II injection wells referred to as Bittinger #1 and Bit- tinger #4 in Columbus Township, Warren County, Pennsylvania.

   On appeal Petitioners argue that the Region’s decision to issue the permits was defi-

cient in six respects. In particular, Petitioners argue that the Region clearly erred by 1) fail- ing to establish that it satisfied its regulatory obligations to account for and consider all drinking water wells within the area of review of the injection wells; 2) failing to properly account for the depth of water wells in Columbus Township; 3) failing to account for all gas wells in the area of review of the injection wells; 4) failing to consider the population growth of Columbus Township and the possible adverse economic impacts of the injection wells; 5) failing to consider the potential for earthquakes; and 6) accepting late-filed com- ments on the draft permit.

   Held: The Board remands the permit on the issue of whether the Region adequately

articulated in the record and to the public that the Region satisfied its regulatory obligations to account for and consider all drinking water wells within the area of review of the injec- tion wells. The Region had a responsibility to ensure that accurate data as to drinking water wells within the area of review of the proposed injection wells were identified and consid- ered. The record does not support a finding that the Region satisfied its responsibility in this regard. In particular, the Region failed to clearly articulate its regulatory obligations or compile a record sufficient to assure the public that the Region relied on accurate and appropriate data in satisfying its obligations. The permit is therefore remanded. Review is denied on all other issues.

VOLUME 15
 BEAR LAKE PROPERTIES, LLC 631

 Before Environmental Appeals Judges Catherine R. McCabe,

Kathie A. Stein, and Anna L. Wolgast.

   Opinion of the Board by Judge Wolgast:


                           I. STATEMENT OF THE CASE

   On June 8, 2011, the U.S. Environmental Protection Agency (“EPA” or

“Agency”) Region 3 (“Region”) issued two Underground Injection Control (“UIC”) permits to Bear Lake Properties, LLC (“Bear Lake”), pursuant to Part C of the Safe Drinking Water Act (“SDWA”), 42 U.S.C. §§ 300h – 300h-8, and EPA’s implementing regulations at 40 C.F.R. parts 124 and 144-148. The permits au- thorize construction and operation of two Class II injection wells1 referred to as Bittinger #1 (permit number PAS2D216BWAR) and Bittinger #4 (permit number PAS2D215BWAR) in Columbus Township, Warren County, Pennsylvania. Both permits authorize injection into the Medina Formation, Bittinger #1 into the perfo- rated interval between 4210 feet and 4327 feet, and Bittinger #4 into the perfo- rated interval between 4285 feet and 4302 feet.2 On July 8, 2011, Mr. William A. Peiffer, Jr. and Mr. Paul T. Stroup (together, “Petitioners”) filed with the Environ- mental Appeals Board (“EAB” or “Board”) a petition for review of the Permits (“Petition”). The Region filed a response to the Petition. See Region III’s Response to Petition for Review (“Region’s Response”). For the reasons set forth below, the Petition is denied in part and granted in part, and the permits are remanded for further action consistent with this decision.

   1 Under 40 C.F.R. § 144.6, injection wells fall into five classes depending on the material

being disposed of in the well. Class II wells are used to inject fluids:
(1) Which are brought to the surface in connection with natural gas stor-
age operations, or conventional oil or natural gas production and may be
commingled with waste waters from gas plants which are an integral
part of production operations, unless those waters are classified as a haz-
ardous waste at the time of injection. (2) For enhanced recovery of oil or
natural gas; and (3) For storage of hydrocarbons which are liquid at stan-
dard temperature and pressure.
40 C.F.R. § 144.6(b).

  2 See Statement of Basis for Underground Injection Control (UIC) Program Draft Class II Per-

mit No. PAS2D215BWAR at 2, and Statement of Basis for Underground Injection Control (UIC) Program Draft Class II Permit No. PAS2D216BWAR at 2.

                                                                                        VOLUME 15

632 ENVIRONMENTAL ADMINISTRATIVE DECISIONS

                          II. ISSUES ON APPEAL

  The Petition filed in this case presents the following issues:

  1.    Have Petitioners demonstrated that theRegion clearly erred by failing
        to establish that it satisfied its regulatory obligations to account for
        and consider all drinking water wells within the area of review of the
        injection wells?

  2.    Have Petitioners demonstrated that the Region clearly erred by failing
        to properly account for the depth of water wells in Columbus
        Township?

  3.    Have Petitioners demonstrated that the Region clearly erred by failing
        to account for all gas wells in the area of review of the injection
        wells?

  4.    Have Petitioners demonstrated that the Region clearly erred by failing
        to consider the population growth of Columbus Township and the
        possible adverse economic impacts of the injection wells?

  5.    Have Petitioners demonstrated that the Region clearly erred by failing
        to consider the potential for earthquakes?

  6.    Have Petitioners demonstrated that the Region clearly erred by ac-
        cepting late-filed comments on the draft permit?


                       III. STANDARD OF REVIEW

  In determining whether to review a petition filed under 40 C.F.R.

§ 124.19(a), the Board first considers whether the petitioner has met threshold pleading requirements such as timeliness, standing, and issue preservation. See 40 C.F.R. § 124.19; In re Beeland Group, LLC, 14 E.A.D. 189, 194-95 (EAB 2008); In re Indeck-Elwood, LLC, 13 E.A.D. 126, 143 (EAB 2006); In re Avon Custom Mixing Servs., Inc., 10 E.A.D. 700, 704-08 (EAB 2002); In re Knauf Fi- ber Glass, GmbH, 9 E.A.D. 1, 5 (EAB 2000). For example, a petitioner must demonstrate that any issues it appeals were either raised with reasonable specific- ity during the public comment period or were not reasonably ascertainable during that period. 40 C.F.R. §§ 124.13, 124.19(a); see, e.g., Indeck, 13 E.A.D. at 143; In re Mille Lacs Wastewater Treatment Facility, 11 E.A.D. 356, 363 & n.7 (EAB 2004); In re Encogen Cogeneration Facility, 8 E.A.D. 244, 249-50 & n.8 (EAB 1999).

VOLUME 15
 BEAR LAKE PROPERTIES, LLC 633

   Assuming that a petitioner satisfies its threshold pleading obligations, the

Board then considers the petition to determine if review is warranted. Beeland, 14 E.A.D. at 194-95; Indeck, 13 E.A.D. at 143. Ordinarily, the Board will not review a petition filed under 40 C.F.R. § 124.19(a) unless it appears from the petition that the permit condition in question is based on a clearly erroneous find- ing of fact or conclusion of law or involves an exercise of discretion or an impor- tant policy consideration that the Board, in its discretion, should review. 40 C.F.R.
§ 124.19(a); accord In re Chukchansi Gold Resort & Casino, 14 E.A.D. 260, 264 (EAB 2009); In re Scituate Wastewater Treatment Plant, 12 E.A.D. 708, 717 (EAB 2006); In re Gov’t of D.C. Mun. Separate Storm Sewer Sys., 10 E.A.D. 323, 332-33 (EAB 2002); In re New Eng. Plating Co., 9 E.A.D. 726, 729 (EAB 2001). In considering permit appeals, the Board is guided by the preamble to the part 124 regulations, which explains that review should be “only sparingly” exercised and that “most permit conditions should be finally determined at the Regional level.” Consolidated Permit Regulations, 45 Fed. Reg. 33,290, 33,412 (May 19, 1980); accord Scituate, 12 E.A.D. at 717; In re City of Moscow, 10 E.A.D. 135, 140-41 (EAB 2001).

   For each issue raised in a petition, the burden of demonstrating that review

is warranted rests with the petitioner, who must raise objections to the permit and explain why the permit issuer’s previous response to those objections is clearly erroneous or otherwise warrants review.3 In re Teck Cominco Alaska, Inc., 11 E.A.D. 457, 494-95 (EAB 2004); In re Westborough, 10 E.A.D. 297, 305, 311-12 (EAB 2002); In re City of Irving, 10 E.A.D. 111, 129-30 (EAB 2001), review denied sub nom. City of Abilene v. EPA, 325 F.3d 657 (5th Cir. 2003). Consequently, the Board has consistently denied review of petitions which merely cite, attach, incorporate, or reiterate comments previously submitted on the draft permit. E.g., In re City of Pittsfield, NPDES Appeal No. 08-19 (EAB Mar. 4, 2009) (Order Denying Review), aff’d, 614 F.3d 7 (1st Cir. 2010); City of Irving, 10 E.A.D. at 129-30; In re Hadson Power 14, 4 E.A.D. 258, 294-95 (EAB 1992) (denying review where petitioners merely reiterated comments on draft permit and attached a copy of their comments without addressing permit issuer’s re- sponses to comments); see also In re Peabody W. Coal Co., 12 E.A.D. 22, 33

    3 Federal circuit courts of appeal have upheld this Board requirement that a petitioner must

substantively confront the permit issuer’s response to the petitioner’s previous objections. City of Pitts- field v. U.S. EPA, 614 F.3d 7, 11-13 (1st Cir. 2010), aff’g In re City of Pittsfield, NPDES Appeal No. 08-19 (EAB Mar. 4, 2009) (Order Denying Review); Mich. Dep’t Envtl. Quality v. U.S. EPA, 318 F.3d 705, 708 (6th Cir. 2003) (“[Petitioner] simply repackag[ing] its comments and the EPA’s response as unmediated appendices to its Petition to the Board * * * does not satisfy the burden of showing entitlement to review.”), aff’g In re Wastewater Treatment Facility of Union Township, NPDES Ap- peal Nos. 00-26 & 00-28 (EAB Jan. 23, 2001) (Order Denying Petitions for Review); LeBlanc v. EPA, 310 Fed. Appx. 770, 775 (6th Cir. 2009) (concluding that Board correctly found petitioners to have procedurally defaulted where petitioners merely restated “grievances” without offering reasons why Region’s responses were clearly erroneous or otherwise warranted review), aff’g In re Core Energy, LLC, UIC Appeal No. 07-02 (EAB Dec. 19, 2007) (Order Denying Review).

                                                                                        VOLUME 15

634 ENVIRONMENTAL ADMINISTRATIVE DECISIONS

(EAB 2005) (“[P]etitioner may not simply reiterate comments made during the public comment period, but must substantively confront the permit issuer’s subse- quent explanations.”).

                 IV. PROCEDURAL AND FACTUAL HISTORY

   Under SDWA section 1421, 42 U.S.C. § 300h, the EPA Administrator is

required to promulgate regulations for state UIC programs to protect underground sources of drinking water (“USDWs”).4 The EPA has promulgated such imple- menting regulations, which are found at 40 C.F.R. parts 144 through 148. The SDWA and the UIC regulations focus exclusively on groundwater that is or may be a source of drinking water. EPA administers the UIC program in those states that, like Pennsylvania, are not yet authorized to administer their own programs. See 40 C.F.R. §§ 144.1(e), 147.1951. The UIC permit application procedures are set forth in section 144.31, which provides: “All injection activities including con- struction of an injection well are prohibited until the owner or operator is author- ized by permit.” Id. § 144.31(a).

   On October 29, 2010, Bear Lake submitted permit applications for con-

struction and operation of the Bittinger #1 and Bittinger #4 injection wells located in Warren County, Pennsylvania, close to the New York State border. In January of 2011, following review of the applications, the Region issued draft permits and a statement of basis supporting the draft permits, along with a public notice re-

   4  The purpose of the UIC program is to protect underground water that “supplies or can rea-

sonably be expected to supply any public water system .” SDWA § 1421(d)(2), 42 U.S.C.
§ 300h(d)(2); see In re NE Hub Partners, L.P., 7 E.A.D. 561, 566 (EAB 1998), review denied sub nom. Penn Fuel Gas, Inc. v. U.S. EPA, 185 F.3d 862 (3d Cir. 1999); In re Envotech, L.P., 6 E.A.D. 260, 263-64 (EAB 1996); In re Brine Disposal Well, 4 E.A.D. 736, 742 (EAB 1993) (“[T]he Agency’s

UIC regulations are oriented exclusively toward the statutory objective of protecting drinking water sources.”). The UIC regulations define the term “USDW” as:

          [A]n aquifer or its portion:

          (a)(1) Which supplies any public water system; or

          (2) Which contains a sufficient quantity of ground water to supply a
          public water system; and

                 (i) Currently supplies drinking water for human consump-
                 tion; or

                 (ii) Contains fewer than 10,000 mg/l total dissolved
                 solids; and

          (b) Which is not an exempted aquifer.

40 C.F.R. § 144.3.

VOLUME 15
 BEAR LAKE PROPERTIES, LLC 635

questing comments and scheduling a public hearing. The Public Hearing took place on March 23, 2011. The Public Comment period closed on March 30, 2011.5 The Region issued final permits for Bittinger # 1 and Bittinger #4 on June 8, 2011, along with a response to comments document.

  On July 8, 2011, Petitioners filed the petition for review at issue in this

matter. The Region filed its Response on August 25, 2011.

                                         V. ANALYSIS

A. Petitioners Have Demonstrated That the Region Failed to Establish That It Satisfied Its Regulatory Obligations to Account for and Consider All Drinking Water Wells Within the Area of Review of the Injection Wells

   The question before the Board is whether the Region met its regulatory ob-

ligations to identify and consider appropriate and accurate site-specific informa- tion in its review of Bear Lake’s permit applications. The regulations governing the issuance of UIC permits prohibit the movement of fluid containing any con- taminant into USDWs as a result of underground injection activity if the contami- nant may cause a violation of any primary drinking water standard or may other- wise adversely affect human health. 40 C.F.R. § 144.12(a). To assist the Agency in determining whether contamination will occur, the regulations require an appli- cant to provide to the Agency:

          A topographic map (or other map if a topographic map is
          unavailable) extending one mile beyond the property
          boundaries of the source depicting * * * those wells,
          springs and other surface water bodies, and drinking
          water wells listed in public records or otherwise known to
          the applicant within a quarter mile of the facility property
          boundary.

Id. § 144.31(e)(7). This information must be considered by the Region in author- izing Class II wells. See id. § 146.24(a)(1); In re Beckman Prod. Servs., 5 E.A.D. 10, 21 (EAB 1994) (the Region must consider site-specific information when deciding whether to issue a new Class II UIC permit) (citing 40 C.F.R.

    5 The public hearing was initially scheduled to take place on February 23, 2011. The Region

later extended the date for the public hearing, as well as the deadline for submitting public comments, until March 23, 2011. See Responsiveness Summary to Public Comments for the Issuance of Under- ground Injection Control Permits for Bear Lake Properties, LLC (“RTC”) at 1. During the public hear- ing, the Region extended the comment period until March 30, 2011. Id.

                                                                                    VOLUME 15

636 ENVIRONMENTAL ADMINISTRATIVE DECISIONS

§ 146.24)). This includes information on any water wells within the “area of re- view.” See 40 C.F.R. § 146.24(a)(1)-(2). Under 40 C.F.R. § 144.3, “area of re- view” is defined as the area surrounding the injection well calculated according to the criteria set forth in 40 C.F.R. § 146.6. Section 146.6 calls for the area of re- view to be determined according to calculation of a “zone of endangering influ- ence” or according to a “fixed-radius method.” In this case, the Region adopted Bear Lake’s calculation of a zone of endangering influence encompassing a one-quarter-mile radius around the wells. See Region’s Response Ex. 2 (Permit Application for Bittinger #1); id. Ex. 3 (Permit Application for Bittinger #4). Peti- tioners do not object to the Region’s area of review determination.

   In its application for construction and operation of Bittinger #1, Bear Lake,

through its contractor, Tetra Tech, concluded that no groundwater wells existed within a one-mile radius of the well. See UIC Permit Application for Bittinger #1, App. A (Region’s Response Ex. 2). According to the application, the closest ground water well is located approximately one and a quarter miles from the facil- ity. Id. at section 2 (Area of Review). In its application for construction and oper- ation of Bittinger #4, Bear Lake concluded that no groundwater wells existed within a one-quarter-mile radius, and that only five water wells existed within a one-mile radius. See UIC Permit Application for Bittinger #4, App. A (Region’s Response Ex. 3).6

  Through both written comments and oral testimony during the public hear-

ing, commenters expressed concern over whether Bear Lake had adequately sur- veyed drinking water wells located in New York State and whether data used to identify local water wells in the area surrounding Bittinger #1 and #4 was out- dated. RTC, Response No. 7 (Region’s Response Ex. 6); see also E-mail from Mary Heston to Stephen Platt, EPA Region 3 (Apr. 1, 2011) (Region’s Response Ex. 12). The gist of the comments appears to be a general concern about whether the Region complied with its obligation to identify drinking water wells within the area of review of the Bittinger #1 and #4 wells. In responding to these comments, the Region stated as follows:

          Subsequent to the public hearing, EPA requested that
          Bear Lake Properties conduct another survey of drinking
          water wells located within one mile of the proposed injec-
          tion well facility. This one mile survey did include
          properties located in New York State. The revised survey
          map Bear Lake Properties provided to EPA, with GPS lat-



   6 The Board notes that the Region’s Response includes an incomplete version of the permit

applications for Bittinger #1 and #4. On June 6, 2012, at the request of the Clerk of the Board, the Region filed a complete version of the applications. Citations to the applications (Region’s Response Exs. 2-3) in this decision are to the complete versions filed on June 6, 2012.

VOLUME 15
 BEAR LAKE PROPERTIES, LLC 637

           itude/longitude locations, identified 10 private drinking
           water wells located in New York State, within one mile of
           the Bittinger #4 well, the closest well to the New
           York/Pennsylvania state line.

RTC, Response No. 7; see also E-mail from S. Stephen Platt, EPA Region 3, to Karl (Apr. 1, 2011) (Region’s Response Ex. 11) (requesting that Bear Lake con- duct “one final review, and provide documentation to EPA, on any additional pri- vate drinking water wells * * * located within one mile of the facility bound- ary”).7 The results of this additional survey are attached as Exhibit 11 to the Region’s Response (hereinafter cited as “Supplemental Survey”).8

   On appeal, Petitioners assert that even with the supplemental survey, the

Region has still failed to adequately survey waters wells. See Petition at 4-6. Ac- cording to the Petition, even after the additional survey of water wells, the Region failed to correct information provided in Bear Lake’s original permit application regarding wells near Bittinger #1 and failed to provide accurate information re- garding the number of water wells within a one-mile radius of Bittinger #4. Id. at 5. Petitioners assert that “[a]ccurate information about both Bittinger wells from both New York and Pennsylvania must be included and considered to provide complete and comprehensive information. Both the initial information as well as the amended information submitted by Permittee is factually incorrect.” Id. The Region, Petitioners argue, clearly erred by relying on inaccurate and insufficient information when making its permit determination.9 Id. at 5-6.

   7 The E-mail does not include a last name or title for “Karl.” The Board assumes that this

individual is an employee of, or contractor for, Bear Lake.

    8 The initial as well as the more recent surveys of existing water wells appears to have been

conducted by Bear Lake’s contractor, Tetra Tech. See, e.g., Region’s Response Exs. 2-3 (containing selected portions of the Bittinger #1 and #4 permit applications), Ex. 11 (providing supplemental data on water wells within a one-mile radius of injection wells). The Board notes that the Region’s Re- sponse includes an incomplete version of Exhibit 11. On May 5, 2012, at the request of the Clerk of the Board, the Region filed a complete version of this exhibit. See Region III’s Supplemental Filing of Administrative Record. Citations to Exhibit 11 in this decision refer to the compete version filed with the Board on May 5, 2012.

    9 In support of its argument on this issue, Petitioners rely, in part, on an exhibit to the Petition

purporting to show water wells in proximity to Bittinger #1 and Bittinger #4. The exhibit is titled “Location sketch of water wells in proximity to Bittinger No. 4 and Bittinger No. 1” and is designated by Petitioners as “Exhibit C” to the Petition. The face of the Exhibit indicates that it was prepared on July 2, 2011, by petitioner Mr. William A. Peiffer, Jr. As this Board has previously held, however, the administrative record in a permit proceeding under 40 C.F.R. part 124 is closed at the time of permit issuance and documents submitted subsequent to permit issuance may not be considered part of the administrative record. In re Dominion Energy Brayton Point, LLC, 12 E.A.D. 490, 518 (EAB 2006). Because Petitioners’ Exhibit C was prepared after the June 8, 2011 issuance of the permits in this matter, the Exhibit is not part of the administrative record for the permitting decisions. The Board has,
Continued

                                                                                         VOLUME 15

638 ENVIRONMENTAL ADMINISTRATIVE DECISIONS

   The Region does not directly respond to Petitioners’ assertions. Instead, the

Region argues that the permits’ conditions are protective of any water wells lo- cated within one mile of the injection wells and that Petitioners have failed to identify “any deficiencies in any particular permit conditions imposed by the Re- gion.” Region’s Response at 14. According to the Region, even if the record failed to account for all drinking water wells, the Board should nevertheless deny review because “the permits are designed to protect all nearby water wells.” Id. at 14-15. Inexplicably, the Region’s Response does not provide this Board with any sub- stantive discussion or analysis of the surveys of drinking water wells conducted prior to issuance of the permits, nor does the Region attempt to demonstrate, with citations to the administrative record, that the surveys adequately accounted for all drinking water wells. The Board is therefore left to wade through the record to determine whether the Region has satisfied its regulatory obligations.

   The record does not support a finding that the Region considered appropri-

ate and accurate site-specific information in reaching its permit decisions. As stated above, as a result of concern expressed by commenters during the public comment period regarding the accuracy of this information, the Region requested that Bear Lake conduct a supplemental review of all water wells within a one-mile radius of Bittinger #1 and #4. Rather than providing clarity, however, this Supplemental Survey raises additional questions. For example, while the in- formation submitted with the permit applications did not identify any water wells within one mile of Bittinger #1, the Supplemental Survey appears to identify four- teen groundwater wells within this same area. Compare Bittinger #1 Permit Ap- plication (Region’s Response Ex. 2) (table titled “Bittinger Area: Columbus Twp: Warren County, PA, Wells w/in 1 mile radius of Bittinger #1”) with Supplemental Survey (table titled “Groundwater Wells Within 1 Mile of Bittinger #1 Well, War- ren County, PA”). The Region does not explain or comment on this apparent dis- crepancy. Similarly, while the original survey of water wells within one mile of Bittinger #4 (submitted as part of the permit application) identified five water wells, the Supplemental Survey appears to identify seventeen wells (none of which appear to correspond to the five wells identified in the permit application). Compare Bittinger #4 Permit Application (Region’s Response Ex. 3) (table titled “Bittinger Area: Columbus Twp: Warren County, PA, Wells w/in 1 mile radius of Bittinger #4”) with Supplemental Survey (table titled “Groundwater Wells Within 1 Mile of Bittinger #4 Well (Warren County, PA”)). Again, the Region does not explain or comment on this apparent discrepancy. Further, as stated above, the

(continued)
in certain circumstances, considered documents presented on appeal that were not part of the adminis- trative record. See, e.g., In re Guam Waterworks Auth., 15 E.A.D. 437, 456 (EAB 2011) (stating that the Board has considered documents not part of the administrative record where, for example, the appeal process is the logical and/or first opportunity to present such documentation). Nevertheless, as Exhibit C appears to be a tracing of a map prepared by Bear Lake, and because the map itself is already part of the administrative record, the Board declines to consider this exhibit.

VOLUME 15
 BEAR LAKE PROPERTIES, LLC 639

Region’s response to comments document states that the Supplemental Survey identified ten drinking water wells in New York State located within one mile of Bittinger #4, yet these wells are not identified in the list provided in the Supple- mental Survey, nor does the Region explain why these ten wells were not previ- ously identified during the permit application process.

   Given these apparent discrepancies, as well as the Region’s failure to pro-

vide the Board with a clear explanation or analysis supporting its conclusion that all water wells within the area of review have been identified and considered, the Board is unable to determine, based on the current record, if the Region has satis- fied its regulatory obligations.10 The Region had a responsibility to ensure that accurate data regarding the number and location of drinking water wells within its selected area of review were identified and considered. The record before the Board is insufficient to support a finding that the Region satisfied its responsibil- ity in this regard. In particular, the Region has utterly failed to clearly articulate its regulatory obligations or compile a record sufficient to assure the public that the Region relied on accurate and appropriate data in satisfying its obligations. In- deed, the Region has failed to clearly articulate what data it relied upon in making its determination.11

  Under these circumstances, the Board concludes that the Region has com-

mitted clear error by failing to provide a reasoned analysis in the record evidenc- ing compliance with its regulatory obligation to ensure that water wells within the applicable area of review are properly identified and considered prior to permit issuance. See 40 C.F.R. §§ 144.31(e)(7), 146.24(a). A clear articulation of the Re- gion’s regulatory obligations and record evidence of the data relied on in reaching its decision is particularly important where, as here, the record indicates com- menters’ confusion with both regulatory requirements and the data relied on by the Region.12 Accordingly, the permits are remanded to Region 3 for reconsidera-

   10 As stated above, the Region argues that even if all water wells were not accounted for, the

permits include conditions sufficient to protect USDWs. While this may be true, it does not relieve the Region of its regulatory obligation to properly identify and consider the presence of all water wells in the area of review.

    11 The Board does not hold that the Region failed to assess water wells within the area of

review. Rather, the Board concludes that the record is insufficient to determine if the Region has satisfied its obligations.

    12 The Board notes that much of the confusion surrounding this issue may be of the Region’s

own making. As stated above, the Region determined that the applicable area of review/zone of endan- gering influence encompassed a one-quarter-mile radius around the injection wells. See Region’s Re- sponse at 16 & Exs. 2-3. Similarly, the regulations at 40 C.F.R. § 144.31(e)(7) require that applicants provide a topographical map depicting, among other things, water wells within a quarter mile of the injection wells. Nevertheless, without explanation, the Region required that Bear Lake’s Supplemental Survey identify drinking water wells within one mile of the proposed injection wells. In addition, in its
Continued

                                                                                      VOLUME 15

640 ENVIRONMENTAL ADMINISTRATIVE DECISIONS

tion. On remand, the Region must clearly articulate its obligations and the data relied upon in complying with its obligations. If the Region decides to reissue the permits, the Region shall include specific and detailed findings and make those findings available to the public for review and comment.13

B. Petitioners Have Not Demonstrated That the Region Clearly Erred by Failing to Properly Account for the Depth of Water Wells in Columbus Township

  Petitioners assert that the information in the record regarding the depth of

water wells in Columbus Township, Pennsylvania is not accurate. See Petition at 6-7. In particular, Petitioners argue that the depth of wells in the Township reaches two-hundred-fifty-feet rather than the one-hundred-thirty-feet depth stated by Bear Lake in its permit application. Id. at 6. As a result of this alleged error in assessing the depth of water wells, Petitioners assert that the “well construction standards, mechanical integrity testing requirements, and monitoring requirements which were established by EPA with regard to the Bittinger Wells could not have been accurate.” Id.

   Petitioners’ allegations are not supported by the record. As the Region

points out in its Response, the record indicates that the permittee identified the depth of the lowermost USDW as three-hundred-feet below surface elevation. See Region’s Response at 15; Statement of Basis for Underground Injection Control (UIC) Program Draft Class II Permit No. PAS2D216BWAR (“Statement of Basis for Bittinger #1”) at 2, and Statement of Basis for Underground Injection Control (UIC) Program Draft Class II Permit No. PAS2D215BWAR (“Statement of Basis for Bittinger #1”) at 2.14 Further, as the Region stated in responding to comments relating to well construction and mechanical integrity testing:

          The Bittinger #1 and Bittinger #4 proposed UIC permits
          both require that surface casing be set 50 feet below the
          lowermost USDW * * * . The lowermost USDW has
          been identified at a depth of 300 feet and the Bittinger #1

(continued)
Response, the Region stated, again without explanation, that the “UIC Regulations require that the permit application identify water wells located within one mile of the facility boundary.” Id. at 12 (citing 40 C.F.R. § 144.31(e)(7)) (emphasis added).
13 Petitioners have also asserted that the Region erred by failing to account for all wells in

Columbus Township Pennsylvania. Petition at 3-4. As stated above, however, the regulations do not require the identification of all water wells in the Township, but only those within the area of review of the proposed injection wells. Review is therefore denied on this issue.
14 The Statement of Basis for the permits states further that injected fluids will be separated

from the lowest USDW by an interval of approximately 3910 feet for Bittinger #1 and 3985 feet for Bittinger #4. Statement of Basis for Bittinger #1 at 2; Statement of Basis for Bittinger #4 at 2.

VOLUME 15
 BEAR LAKE PROPERTIES, LLC 641

          and Bittinger #4 wells have surface casing set at 401 feet
          and 506 feet respectively. This is well below the “fresh
          water” that would be protected under the PADEP [15 ]
          requirements.

          * * *

          Prior to operating of the wells, EPA requires that the
          wells be tested for mechanical integrity. Cementing
          records and logs are required to show that each well has
          adequate cement to prevent fluid migration out of the in-
          jection zone and an internal pressure test is required to
          ensure that the casing, tubing and packer will not leak
          during the well’s operation. The internal pressure test re-
          quires the annulus of the well (the space between the pro-
          duction casing and the tubing and packer) to be pressure
          tested to ten percent above the permitted maximum injec-
          tion and held for at least 30 minutes, with no more than
          five percent loss in pressure allowed.

RTC, Response No. 8. The Region concluded that the permits would effectively protect USDWs. Id.

  Because the record indicates that the permit conditions regarding the wells’

depth and construction are sufficiently protective of USDWs and because Peti- tioners failed to state why the Region’s response to comments regarding the wells’ construction, mechanical integrity, and testing standards were clearly erroneous or otherwise warrants review, review is denied on this issue. See In re Shell Off- shore, Inc., 15 E.A.D. 536, 542 (EAB 2012) (petitioners must demonstrate why the Region’s response to comments is clearly erroneous or otherwise warrants re- view); In re Guam Waterworks Auth., 15 E.A.D. 437, 444 (EAB 2011) (same).

C. Petitioners Have Not Demonstrated That the Region Clearly Erred by Failing to Account for All Gas Wells in the Area of Review of the Proposed Injection Wells

  Petitioners assert that the review of the Bittinger #1 and #4 permits is war-

ranted because the Region clearly erred by failing to ensure that Bear Lake prop- erly identified all gas wells or abandoned wells within the applicable “zone of

  15 The regulations governing the UIC program for the State of Pennsylvania require that the

owner of a Class II well install casing from the surface to at least fifty-feet below the base of the lowermost USDW. See 40 C.F.R. § 147.1955(b)(1).

                                                                                   VOLUME 15

642 ENVIRONMENTAL ADMINISTRATIVE DECISIONS

endangering influence.”16 See Petition at 7. According to Petitioners, the Region erroneously accepted Bear Lake’s conclusion that no gas wells (other than wells owned by Bear Lake) or abandoned wells were present in the zone of endangering influence.17 Petitioners contend that seventy oil and gas wells exist in the zone of endangering influence. Id. at 8. In responding to comments concerning the identi- fication of any abandoned wells, the Region stated, in part:

           During the public hearing, commenters indicated to EPA
           that they did not think that all abandoned wells near the
           proposed injection site had been documented. It was un-
           clear whether these wells might exist within the zone of
           endangering influence, outside of this area, or might be
           wells that do not penetrate the injection zone. EPA re-
           quested that Bear Lake Properties conduct another survey
           of the area surrounding the proposed injection operation,
           using information provided at the public hearing, to deter-
           mine whether other abandoned wells did, in fact, exist.
           Public records, obtained by EPA subsequent to the public
           hearing, indicated no record of wells being drilled in the
           area of the proposed injection operation prior to the wells
           that are present today. The additional information and
           maps, submitted to EPA, provided information on all of
           the gas wells that are located within a two mile radius of
           the injection well site. This map confirmed the informa-
           tion submitted by Bear Lake Properties, that only gas pro-
           duction wells owned by Bear Lake Properties exist within
           the zone of endangering influence. The additional survey
           conducted by Bear Lake Properties indicated that only the
           Bittinger #1 and Bittinger #4 are contained within the area
           of review.

           EPA has also required in the proposed permits monitoring
           of the fluid level in the injection zone during injection op-
           erations to ensure that pressure created by the injection
           operation will not cause migration of fluid up abandoned
           wells that could exist. By monitoring fluid level, and
           making sure that it remains safely below the lowermost



   16 As stated above, the Region determined the zone of endangering influence to be a

one-quarter-mile radius from Bittinger #1 and #4.

    17 The Petition does not cite to any statutory or regulatory provisions that they allege the Re-

gion has violated. The Board presumes that Petitioners are alleging a violation of the corrective action requirements set forth in 40 C.F.R. §§ 144.55 and 146.7, which focus on the need to ensure that other wells in the vicinity of a proposed well do not provide a conduit for migration of injected fluids.

VOLUME 15
 BEAR LAKE PROPERTIES, LLC 643

        USDW, then even if an abandoned well were to exist (
        i.e., a well that might have been drilled in the past without
        having information of public record), the monitoring
        would detect and prevent fluid migration into the lower-
        most USDW. EPA Region III has a permit condition in
        the proposed Bear Lake Properties permits that requires
        the fluid level to be monitored during the injection
        operation.

RTC, Response No. 6; see also Statement of Basis for Bittinger #1 at 2 (“After extensive research of local, county and state well records, no wells other than Bear Lake Property gas production wells, were found which penetrate the injec- tion zone within this Area of Review.”); Statement of Basis for Bittinger #4 at 2 (same).

   Petitioners mistakenly equate the Region’s assessment of wells within a

two-mile radius with the Region’s zone of endangering influence determination. Under this mistaken assumption, Petitioners assert that the Region’s determination that no gas or other wells exist within the zone of endangering influence is clearly erroneous. According to Petitioners, the zone of endangering influence contains a total of seventy oil or gas wells located in Pennsylvania and New York. Petition at 7-8. Petitioners, however, erroneously state that the zone of endangering influ- ence encompasses a two-mile radius around the wells. Id. at 7-8 (emphasis ad- ded). As noted above, Bear Lake calculated, and the Region adopted, a zone of endangering influence encompassing a one-quarter-mile radius around the injec- tion wells. While Bear Lake also submitted, and the Region considered, informa- tion on wells beyond the one-quarter-mile zone of endangering influence, this did not, as Petitioners suggest, result in an expansion of the zone from a one-quarter-mile radius to a two-mile radius. Under these circumstances, Petition- ers have failed to establish that the Region’s determination on this issue was clearly erroneous or otherwise warrants Board review.

D. Petitioners Have Not Demonstrated That the Region Clearly Erred by Failing to Consider the Population Growth of Columbus Township and the Possible Adverse Economic Impact of the Injection Wells

   Petitioners assert that the Region clearly erred in its permit determination by

failing to consider the rapid population growth of Columbus Township, Penn- sylvania and the economic impact that the wells will have on residents. Petition at

9. Because these considerations are outside the scope of Board review, the Peti-
   tioner for review is denied on this issue.

   The UIC permitting process is narrow in its focus and the Board’s review of
   UIC permit decisions extends only to the boundaries of the UIC permitting pro- gram, which is limited to the protection of underground sources of drinking water.

                                                                       VOLUME 15
   

   644 ENVIRONMENTAL ADMINISTRATIVE DECISIONS

See In re Envt’l. Disposal Sys., Inc., 12 E.A.D. 254, 266 (EAB 2005); In re Am. Soda, LLP, 9 E.A.D. 280, 286 (EAB 2000) (“the SDWA * * * and the UIC regu- lations * * * establish the only criteria that EPA may use in deciding whether to grant or deny an application for a UIC permit”) (quoting In re Envotech, LP, 6 E.A.D. 260, 264 (EAB 1996)); In re NE Hub Partners, LP, 7 E.A.D. 561, 567 (EAB 1998) (“[P]rotection of interests outside of the UIC program [is] beyond our authority to review in the context of [a UIC] case.”), review denied sub nom. Penn Fuel Gas, Inc. v. EPA, 185 F.3d 862 (3rd Cir. 1999); In re Brine Disposal Well, 4 E.A.D. 736, 742 (EAB 1993) (“[P]arties objecting to a federally issued UIC permit must base their objections on the criteria set forth in the [SDWA] and its implementing regulations.”). Accordingly, where petitioners raise concerns outside the scope of the UIC program, the Board will deny review. See, e.g., In re Federated Oil & Gas, 6 E.A.D. 722, 725-26 (EAB 1997); In re Terra Energy, Ltd., 4 E.A.D. 159, 161 n.6 (EAB 1992).

E. Petitioners Have Not Demonstrated That the Region Erred in Considering the Potential for Earthquakes

  Petitioners argue that the Region erred by failing to consider that the pro-

posed wells are located in an earthquake prone area and that underground injec- tion can cause earthquakes. See Petition at 10-12. In responding to comments raised during the public comment period on this issue, the Region stated:

        EPA has no evidence the location proposed for this injec-
        tion operation is located in an earthquake prone area. Evi-
        dence indicates that there are no deep-seated transmissive
        faults that intersect the proposed injection zone or that
        could be influenced by the proposed injection operation in
        the future. It is important to keep in mind that the reser-
        voir proposed for injection, the Medina Formation, pro-
        duced, and continues to produce, natural gas. Over the
        past three decades, natural gas has been removed from the
        pore space within this reservoir, depleting the formation
        of much of the natural gas it contained as well as reducing
        the formation’s reservoir pressure. Earthquakes can occur
        when a geologic formation becomes under-pressurized
        (i.e., through geologic formation collapse causing the
        structure of the formation to shift) or when it becomes
        over-pressurized. The Medina Formation in this location
        is presently under-pressurized from decades of natural gas
        production and there has been no evidence of earthquakes
        due to the removal of this natural gas. In addition, the pro-
        posed injection operation will not over-pressurize the for-
        mation. Because of the removal of millions of cubic feet
        of natural gas, pore space has been created to accept the

VOLUME 15
 BEAR LAKE PROPERTIES, LLC 645

           injection of fluid. The permits would also be conditioned
           to prevent the over-pressurization, or fracturing, of the
           formation.

RTC, Response No. 4.

   According to Petitioners, the Region’s reasoning is flawed because “it is ir-

responsible for the EPA to wait until an earthquake occurs to determine that a specific injection well facility is located in an earthquake-prone area, but, also, it fails to take into consideration the fact that earthquakes have been” acknowledged previously as being a problem resulting from injection wells. Petition at 10. Peti- tioners cite to two publications (attached as exhibits H and I to the Petition) pur- porting to document a relationship between injection from UIC wells and seismic activity. Id. at 11. Petitioners also assert, without support, that a well in New York (identified by Petitioners as “Tecroney No. 1”) located three and three quarter miles from Bittinger #4 was shut down due to seismic activity. Petition at 11-12
& Ex. 5. Finally, Petitioners cite to a local news report from a Syracuse, New York, television station questioning whether a connection may exist between in- jection wells and seismic activity in Arkansas. Id. at 12 & Ex. K.

   In response to the Petition, the Region acknowledges, as it did in respond-

ing to comments, that, although some injection activities have been associated with seismic activity, this seismic activity has occurred in geologic formations in other part of the United States. See Region’s Response at 18. The Region states that there is no evidence that any seismic activity has or will occur in the Medina Formation and that none of the injection wells permitted by Pennsylvania since 1985 have experienced injection-related seismic activity. Id. Further, the Region points out, as it did in responding to comments on this issue, that the wells will be operated at a pressure well below formation fracture pressure. Id. at 19; see also, RTC Response No. 4, Statement of Basis for Bittinger #1 at 3 (“The maximum allowable surface injection pressure for the permitting operation will be 1696 psi. The maximum bottom-hole pressure shall not exceed 3916 psi. Pressure will be continuously monitored. This pressure limitation will meet the regulatory criteria of 40 CFR § 146.23(a).”); Statement of Basis for Bittinger #4 at 3 (“The maximum allowable surface injection pressure for the permitting operation will be 1726 psi. The maximum bottom-hole pressure shall not exceed 3984 psi. Pressure will be continuously monitored. This pressure limitation will meet the regulatory criteria of 40 CFR § 146.23(a).”).18

  18   40 C.F.R. § 146.23 states, in part, that:

           Injection pressure at the wellhead shall not exceed a maximum which
           shall be calculated so as to assure that the pressure during injection does
           not initiate new fractures or propagate existing fractures in the confining
                                            Continued



                                                                                         VOLUME 15

646 ENVIRONMENTAL ADMINISTRATIVE DECISIONS

   As the Board has previously stated, a petitioner’s burden to demonstrate that

review is warranted is particularly heavy in cases where a petitioner seeks review of issues that are fundamentally technical or scientific in nature, as the Board typically defers to the expertise of the permit issuer on such matters if the permit issuer adequately explains its rationale and supports its reasons in the record. See NE Hub, 7 E.A.D. at 567-68; accord In re Dominion Energy Brayton Point, LLC, 12 E.A.D. 490, 510 (EAB 2006); In re Peabody W. Coal, 12 E.A.D. 22, 33-34 (EAB 2005). The publications Petitioners cite purporting to show a connection between underground injection and seismic activity are not part of the permitting record in this matter and thus were not considered by the Board.19 Further, noth- ing in the record supports Petitioners’ assertion regarding injection-related seismic activity at Tecroney No.1. In its Response, the Region states that it consulted with Region 2 regarding the circumstances of this well and learned that “[n]either Re- gion II nor the New York Department of Environmental Conservation had infor- mation that this well was connected to injection-related seismic activity.” Region’s Response at 18 n.3. While Petitioners clearly disagree with the Region’s determi- nation regarding the threat of seismic activity in the area surrounding the injection wells, Petitioners have failed to meet their heavy burden of demonstrating that the Region erred in making its technical and scientific determination regarding the threat of injection-related seismic activity in the Medina Formation. NE Hub, 7 E.A.D. at 567.

F. Petitioners Have Not Demonstrated That the Region Clearly Erred by Accepting Late-Filed Comments on the Draft Permit

   Petitioners argue that the Region clearly erred by failing to provide public

notice that the public comment period on the draft permit had been extended from March 30, 2011, to April 15, 2011. Petition at 12. According to Petitioners, “[t]his lack of notice prevented additional comments from being submitted and is preju- dicial to the rights of those interested parties * * * .” Id. at 13.

(continued)
zone adjacent to the USDWs. In no case shall injection pressure cause
the movement of injection of formation fluids into an underground
source of drinking water.
40 CF.R. § 146.23(a)(1) (entitled Operating, monitoring, and reporting requirements) .

   19 See Dominion, 12 E.A.D. at 518 (administrative record in a permit proceeding under

40 C.F.R. part 124 is closed at the time of permit issuance and documents submitted subsequent to permit issuance may not be considered part of the administrative record). Even were the Board to consider these publications, the publications do not undermine the Region’s determination regarding seismic activity in the area surrounding Bittinger #1 and #4.

VOLUME 15
 BEAR LAKE PROPERTIES, LLC 647

   As the Region points out, however, the public comment period was not ex-

tended to April 15, 2011. While the Region accepted and considered certain late-filed comments from several commenters, including the Chautauqua County Department of Health, see Region’s Response at 20 & Ex. 12, this did not result in a reopening of the comment period. See In re Weber #4-8, 11 E.A.D. 241, 243 n.2 (EAB 2003) (considering and responding to late-filed comments does not result in the reopening of the comment period because, “as a matter of good governance, the Region should retain the flexibility to freely respond to citizens’ concerns, even those belatedly raised, without impairing the efficiency and finality of the permitting process”). Moreover, Petitioners do not allege any specific prejudice as a result of the Region’s acceptance of the late-filed comments, nor do they state what issue(s) they would have raised, if any, had the public comment period in fact been extended. Accordingly, review is denied on this issue.

                             VI. CONCLUSION

  As explained above, the Board is unable to determine based on the current

state of the record if the Region has satisfied its regulatory obligation to ensure that all water wells within the area of review are properly identified and consid- ered. The permit is therefore remanded to the Region to allow the Region the opportunity to cure the record deficiencies. The Region must clearly articulate its obligations and the data relied upon in complying with its obligations. If the Re- gion decides to reissue the permits, the Region shall include specific and detailed findings and make those findings available to the public for review and comment. Review is denied on all other issues.

  So ordered.




                                                                   VOLUME 15