Pennsylvania General Energy Company, LLC (Board decision, August 21, 2014)

Plain-English summary

EPA Region 3 issued Pennsylvania General Energy Company, LLC a Class II Underground Injection Control permit to convert an existing production well into a brine-disposal well in Pennsylvania. Three petitions challenged the permit's protection of the groundwater aquifer and the Region's responses to public comments. The Board denied one petition for lack of standing because the petitioner had not participated in the public review process. It denied the other two because the petitioners did not confront the Region's thorough responses or show clear error or abuse of discretion. No monetary penalty was imposed by this permit decision.

Decision snapshot

• Cited authorities: 42 U.S.C. § 300h; 40 C.F.R. §§ 124.19, 144.1, 144.3, 144.6, 144.11, 144.31, 144.52, 146.3, 146.6, 146.10, 146.22, 147.1951, and 147.1955
• Outcome: Review of all three consolidated petitions was denied, and the Class II UIC permit remained in place.
• Key point: A UIC petitioner must participate in the public review process or challenge a change in the final permit, and must explain why the Region's response to comments is clearly erroneous or otherwise warrants review.

Full text (EPA EAB public release)

498 ENVIRONMENTAL ADMINISTRATIVE DECISIONS

       IN RE PENNSYLVANIA GENERAL ENERGY
                  COMPANY, LLC

              UIC Appeal Nos. 14-63, 14-64, & 14-65

                    ORDER DENYING REVIEW


                        Decided August 21, 2014



                                   Syllabus
     This matter involves three consolidated petitions for review of an Underground

Injection Control (“UIC”) permit that U.S. Environmental Protection Agency Region 3 (“Region”) issued to Pennsylvania General Energy Company for a Class II injection well on March 19, 2014. The Board received petitions from the following individuals: Ms. Suzanne Watkins (UIC Appeal No. 14-63), Ms. Judy and Mr. Paul Wanchisn and Ms. Stacy and Mr. Mark Long (UIC Appeal No. 14-64) (“Wanchisn/Long Petition”), and Mr. William J. Woodcock III (UIC Appeal No. 14-65). Petitioners contend that the Region failed to respond adequately to public comments submitted regarding the permit and question whether the permit conditions are adequate to protect the groundwater aquifer.

     Held: The Board denies all three petitions for review. The Board denies Mr.

Woodcock’s petition for lack of standing. The Board finds that the Region provided thorough and well-reasoned responses during the public comment period to the questions and concerns raised in the Wanchisn/Long and Watkins petitions. The Board denies those petitions for failure to confront the Region’s responses and failure to demonstrate that the Region made a clear error of law or fact or abused its discretion in issuing the permit.

 Before Environmental Appeals Judges Leslye M. Fraser, Catherine R.

McCabe, and Kathie A. Stein.

    Opinion of the Board by Judge McCabe:

                       I. STATEMENT OF THE CASE

   On March 19, 2014, the U.S. Environmental Protection Agency (“EPA” or

“Agency”) Region 3 (“Region”) issued an Underground Injection Control (“UIC”) permit to Pennsylvania General Energy Company, LLC (“PGE”) for a Class II injection well, referred to as the “Marjorie C. Yanity 1025.” See

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Injection Control Permit No. PAS2D013BIND Authorization to Operate Class II- D Injection Well (Mar. 19, 2014) (“Permit”). The Environmental Appeals Board (“Board”) received three petitions for review of the permit from the following individuals: Ms. Suzanne Watkins (UIC Appeal No. 14-63), Ms. Judy and Mr. Paul Wanchisn and Ms. Stacy and Mr. Mark Long (UIC Appeal No. 14-64) (“Wanchisn/Long Petition”), and Mr. William J. Woodcock III (UIC Appeal No. 14-65). The Board consolidated these appeals on April 30, 2014. For the reasons explained below, the Board denies the petitions for review.

               II. PROCEDURAL AND FACTUAL HISTORY

A. The UIC Program

    Congress established the UIC program pursuant to Safe Drinking Water

Act (“SDWA”) section 1421, 42 U.S.C. § 300h, and EPA promulgated regulations at 40 C.F.R. parts 144 through 148 to protect underground sources of drinking water. The program is designed to protect underground water that “supplies or can reasonably be expected to supply any public water system.” SDWA § 1421(d)(2), 42 U.S.C. § 300h(d)(2). The regulations specifically prohibit “[a]ny underground injection [] except into a well authorized by rule or except as authorized by permit issued under the UIC program.” 40 C.F.R.
§ 144.11. The UIC permit application procedures are set forth in section 144.31, which provides: “all injection activities including construction of an injection well are prohibited until the owner or operator is authorized by permit.” 40 C.F.R. § 144.31(a).1

   The UIC regulations establish minimum requirements for state-

administered permit programs. EPA administers the UIC program in those states

    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
    storage 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
    hazardous 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 standard temperature
    and pressure.

40 C.F.R. § 144.6(b).

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that, like Pennsylvania, are not yet authorized to administer their own programs. See 40 C.F.R. §§ 144.1(e), 147.1951.

B. The PGE Permit

    The proposed permit authorizes PGE to convert an existing PGE

production well into a Class II brine disposal injection well, and to inject fluids produced in association with PGE’s oil and gas production operations. Permit at 1. The lowermost source of drinking water in the area surrounding the proposed well is located approximately 520 feet below surface elevation. See Statement of Basis for U.S. EPA’s Underground Injection Control (UIC) Program Draft Class IID Permit No. PAS2D013BIND for Pennsylvania General Energy Company, LLC at 2 (Sept. 18, 2013) (“Statement of Basis”). The permit limits injection to an area referred to as the “Huntsville Chert Formation” in the interval between approximately 7,544 feet through 7,620 feet. Id. An interval of approximately 7,024 feet separates this injection area from the lowermost source of drinking water. Id. at 3. Immediately above the injection zone is a confining zone referred to as the “Onandoga Formation,” comprised of approximately 180 feet of limestone and shale. Id. at 3; U.S. EPA Region 3, Responsiveness Summary for the Issuance of [a UIC] Permit for [PGE] at 10 (Mar. 19, 2014) (“Responsiveness Summary”). This geological formation has a low permeability, giving it the ability to confine and trap fluids and prevent upward migration. Id. As discussed below, the permit contains provisions designed to ensure both well integrity and the protection of drinking water.

      III. THRESHOLD REQUIREMENTS FOR BOARD REVIEW

    Section 124.19 of Title 40 of the Code of Federal Regulations governs

Board review of a UIC permit. In considering any petition filed under 40 C.F.R.
§ 124.19(a), the Board first evaluates whether the petitioner has met threshold procedural requirements such as timeliness, standing, issue preservation and specificity. 40 C.F.R. § 124.19(a)(2)-(4); see also In re Indeck-Elwood, LLC, 13 E.A.D. 126, 143 (EAB 2006). If the Board concludes that a petitioner satisfies all threshold pleading obligations, then the Board evaluates the merits of the petition for review. See Indeck-Elwood, 13 E.A.D. at 143. If a petitioner fails to meet a threshold requirement, the Board typically denies or dismisses the petition for review. See, e.g., In re Russell City Energy Ctr., LLC, PSD Appeal Nos. 10- 12 & 10-13, at 4-7 (EAB June 9, 2010) (Order Dismissing Two Petitions for Review as Untimely).

   In any appeal from a permit decision issued under part 124, the petitioner

bears the burden of demonstrating that review is warranted. 40 C.F.R.

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§ 124.19(a)(4). The petitioner bears that burden even when the petitioner is unrepresented by counsel, as is the case here.2 In re New Eng. Plating Co., 9 E.A.D. 726, 730 (EAB 2001); In re Encogen Cogen. Facility, 8 E.A.D. 244, 249-50 (EAB 1999). With these principles in mind, the Board next considers the three petitions presented in this appeal.

                                   IV. ANALYSIS

A. Mr. Woodcock Lacks Standing

    In every appeal from a permit decision, a petitioner must demonstrate

prior involvement in the public review process, either by filing written comments on the draft permit or by participating in a public hearing. 40 C.F.R. 124.19(a)(2).3 A person who does not participate during the public review process may petition for review if changes are made between the draft and final permit, but may only challenge the decision with respect to those changes. Id.; see, e.g., In re Am. Soda LLP, 9 E.A.D. 280, 288-89 (EAB 2000); In re Envotech, 6 E.A.D. 260, 267 (EAB 1996). The Board denies, for lack of standing, petitions for review that do not meet this threshold requirement. E.g., In re Beeland Group, LLC, UIC Appeal Nos. 08-01 & 08-03, at 4, 10-11 (EAB May 23, 2008) (Order Denying Review); In re Avon Custom Mixing Servs., Inc., 10 E.A.D. 700, 708 (EAB 2002).

    2
      The Board generally endeavors to construe liberally the issues presented by an

unrepresented petitioner, so as to fairly identify the substance of the arguments being raised. The Board nevertheless “expect[s] such petitions to provide sufficient specificity to apprise the Board of the issues being raised.” In re Seneca Res. Corp., 16 E.A.D. 411, 412 n.1 (EAB 2014); In re Sutter Power Plant, 8 E.A.D. 680, 687-88 (EAB 1999). “The Board also expects the petitions to articulate some supportable reason or reasons as to why the permitting authority erred or why review is otherwise warranted.” Sutter, 8 E.A.D. at 688; accord In re Beckman Prod. Servs., 5 E.A.D. 10, 19 (EAB 1994).
3
This regulation provides in relevant part:

    Any person who filed comments on the draft permit or participated in a
    public hearing on the draft permit may file a petition for review as
    provided in this section. Additionally, any person who failed to file
    comments or failed to participate in the public hearing on the draft permit
    may petition for administrative review of any permit conditions set forth
    in the final permit decision, but only to the extent that those final permit
    conditions reflect changes from the proposed draft permit.

40 C.F.R. § 124.19(a)(2).

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    Mr. Woodcock’s petition does not indicate that he submitted comments on

the draft permit, nor does the record reflect that he participated in any way. Further, the Region’s response to the petitions states that Mr. Woodcock did not submit comments on the draft permit during the public comment period or participate in the public hearing. Region’s Response at 14-15. Mr. Woodcock also does not challenge the Region’s permit decision with respect to changes made between the draft and final permit. Based on all of the above, the Board concludes that Mr. Woodcock does not meet the threshold standing requirements of 40 C.F.R. § 124.19(a)(2) and, accordingly, denies Mr. Woodcock’s petition for review.

B. The Wanchisn/Long Petition Fails to Demonstrate That Review Is Warranted

   The part 124 regulations require that a petition demonstrate that the

contested permit conditions are based on either a clear error of fact or law or an exercise of discretion or important policy consideration warranting Board review. The petitioner must explain, with factual and legal support, why the permit condition or other challenge warrants Board review, and why the Region’s response to comment on the issue raised was clearly erroneous or otherwise warrants review. 40 C.F.R. § 124.19(a)(4).

    The Wanchisn/Long petition fails to meet these requirements. The

petition consists essentially of a series of questions and concerns pertaining to the UIC permit. The petitioners contend on appeal that the Region did not specifically answer all of their very detailed technical questions. The Board finds, to the contrary, that the Region provided thorough and well-reasoned responses to the questions and concerns.4 As petitioners note, these same questions were submitted to the Region as comments on the draft permit. See Wanchisn/Long Petition at 3-4. Yet, the petition fails to reference the Region’s responses or to

    4
      In its response to comments, the Region grouped the specific questions into

common categories, which enabled it to provide a clear and efficient response to the overarching concerns and questions that petitioners raised. This format for the response to comments is consistent with the regulations and the Board’s case law. See 40 C.F.R.
§ 124.17(a) (requiring that the permit issuer briefly respond to all significant comments); In re Kendall New Century Dev., 11 E.A.D. 40, 50 (EAB 2003) (stating that § 124.17(a) “‘does not require a [permit issuer] to respond to each comment in an individualized manner,’ nor does it require the permit issuer’s response ‘to be of the same length or level of detail as the comment’”) (quoting In re NE Hub Partners, LP, 7 E.A.D. 561, 583 (EAB 1998), review denied sub nom. Penn Fuel Gas, Inc. v. EPA, 185 F.3d 862 (3rd Cir. 1999)).

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explain why the Region’s responses were clearly erroneous or otherwise warrant Board review.

    The Region appropriately recognized the petitioners’ legitimate and

understandable concerns with respect to the safety of their drinking water, and explained in detail how its technical analysis supports the conclusion that the permit conditions for this Class II well protect the drinking water aquifer in accordance with the requirements of the federal UIC regulations. This satisfies the Region’s obligations under the law. Simply repeating questions in a petition for review before the Board that have been previously presented to and answered by the permit issuer does not satisfy the regulatory requirement that petitioners confront the permit issuer’s responses and explain why the responses were clearly erroneous or otherwise warrant Board review. See 40 C.F.R. § 124.19(a)(4)(ii).

    Federal circuit courts of appeal have consistently upheld the Board’s

threshold requirement to demonstrate, with specificity, that review is warranted, including the requirement that a petitioner must substantively confront the permit issuer’s response to the petitioner’s previous objections. See, e.g., Native Vill. of Kivalina IRA Council v. EPA, 687 F.3d 1216, 1219 (9th Cir. 2012), aff’g In re Teck Alaska, Inc., NPDES Appeal No. 10-04, at 7-11 (EAB Nov. 18, 2010) (Order Denying Review); City of Pittsfield v. 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 of Envtl. Quality v. 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 Twp., NPDES Appeal Nos. 00-26 & 00-28 (EAB Jan. 23, 2001) (Order Denying Petitions for Review); LeBlanc v. EPA, 310 F. App’x 770, 775 (6th Cir. 2009) (concluding that the Board correctly found petitioners to have procedurally defaulted where petitioners merely restated “grievances” without offering reasons why the permit issuer’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); see also 78 Fed. Reg. at 5,282. The petition does not satisfy this requirement.

    The questions and concerns raised in the Wanchisn/Long petition fall into

the following general categories: (1) the calculation of the “area of review” and “zone of endangering influence” surrounding the injection well; (2) the potential for seismic activity; (3) well integrity, monitoring, and testing requirements; (4) the injection and confining zones; and (5) the plugging and abandonment of the well when operations cease. Petitioners and others, including the League of

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Women Voters of Pennsylvania, raised these concerns in a virtually identical fashion during the public comment period.5 The Board finds that the Region provided thorough and well-reasoned responses to each of these concerns, as described below.

    1. Area of Review

    Under 40 C.F.R. § 144.3, the “area of review” 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 review to be determined according to calculation of a “zone of endangering influence” or according to a “fixed-radius method” around the well of not less than one-fourth mile.6 40 C.F.R. § 144.6(b). The zone of endangering influence is defined as “the lateral distance in which the pressure in the injection zone may cause the migration of the injection and/or formation of fluid into an underground source of drinking water.” Id. § 146.6(a)(1)(i). The zone of endangering influence is calculated based on a mathematical model, an example of which is provided in the regulations. Id. § 146.6(a)(2).7 In the present case, as the Region explained in the Statement of Basis accompanying the draft permit, PGE initially chose a one- quarter mile fixed radius as the area of review surrounding the proposed injection well. Statement of Basis at 2. In considering PGE’s permit application, the

    5
       Compare Wanchisn/Long Petition with League of Women Voters of

Pennsylvania, Comments Regarding General Energy Co., LLC (PGE) PAS2D013BIND (Oct. 28, 2013), and E-mail from Judy & Paul Wanchisn to Steve Platt, U.S. EPA Region 3, Re: Comments on Draft UIC Permit (Nov. 4, 2013).
6
An important part of the application and approval process for Class II wells is
identifying existing and abandoned injection and drinking water wells in the area of the proposed well and developing appropriate corrective action plans, as needed, for those wells. The regulations require applicants to submit a topographical map extending one mile beyond the property boundary depicting springs and other surface water bodies, as well as drinking water wells within a quarter mile of the property boundary. 40 C.F.R.
§ 144.31(e)(7). In addition, the Region must consider data on the operation, construction, and history of any water wells within the area of review. Id. § 146.24(a)(1)-(3); see id.
§ 144.55(a) (requiring applicants to identify, among other things, all wells within the area of review that penetrate the injection zone).
7
The regulations provide a mathematical model, referred to as a modified Theis
equation, which may be used for calculating the zone of endangering influence. The model includes the following parameters: thickness of injection zone, injection rate, duration of injection, specific gravity of fluid in the injection zone, and thickness of the injection zone. 40 C.F.R. § 146.6(a)(2).

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Region “conducted a zone of endangering influence calculation (a modified Theis equation flow model) using geologic information pertinent to the injection zone as well as anticipated operational parameters” provided by PGE. Id. Based on its zone of endangering influence calculation, the Region extended the area of review beyond the one-quarter mile fixed-radius chosen by PGE. Id. As a result, PGE provided data on wells approximately 100 feet beyond the one-quarter mile radius. Id.

    The Wanchisn/Long petition asserts that the Region failed to describe the

assumptions and methodology underlying the zone of endangering influence calculation and failed to identify “many of the values” used in calculating the zone of endangering influence. Wanchisn/Long Petition at 3, 12-13. Thus, according to the petition, the Region did not provide the public with sufficient information to critique EPA’s calculation. Id. In responding to the identical comments on this issue submitted during the public comment period, the Region explained:

   Calculation of the [zone of endangering influence] considers
   pressure build-up in the injection zone over a given period of time
   based on geologic and operational parameters. The [area of
   review] or [zone of endangering influence] analyses are conducted
   to make sure that if old wells exist, they would not allow fluids to
   migrate upwards into [underground sources of drinking water]
   during the injection well operation. If an applicant chooses to use
   a one-quarter mile [area of review], as PGE did, EPA Region III
   verifies that this is acceptable by calculating a [zone of
   endangering influence] around the injection well. EPA used
   information such as the porosity and permeability of the injection
   zone, the existing reservoir pressure, and operational parameters,
   such as the injection rate and volume to calculate the [zone of
   endangering influence]. When EPA calculated the [zone of
   endangering influence] it determined that, after a ten year period,
   the [zone of endangering influence] would be a distance of 1450
   feet away from the injection well, approximately 130 feet greater
   than the one-quarter mile [area of review] [chosen by PGE]. This
   would mean that if any open conduits (i.e., abandoned wells)
   existed within this 1450 foot distance, they could potentially allow
   fluid to move upwards into [underground sources of drinking
   water] after injection for ten years. No wells were found to exist,
   that penetrated the injection zone, within 1450 feet of the proposed
   injection well.[8]

   8
      Should any unplugged or abandoned wells that penetrate the injection zone

within the area of review be identified at a later date, the permit requires that PGE

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Responsiveness Summary at 3-4. The Board finds that the Region’s response provided a rational and well-supported explanation of its zone of endangering influence analysis and the parameters considered in extending the area of review beyond the one-quarter mile radius PGE proposed. The Wanchisn/Long Petition does not discuss or “explain why the [Region’s] response to the comment[s] was clearly erroneous or otherwise warrants review,” as required by 40 C.F.R.
§ 124.19(a)(4)(ii).

    2. Seismic Activity

     The Wanchisn/Long Petition repeats concerns expressed during the

comment period regarding the potential for seismic events in the area surrounding the well and the potential consequences of any such events. See Wanchisn/Long Petition at 7-8. The Region addressed these concerns extensively in its response to public comments.9 The Region evaluated factors relevant to seismic activity, such as the existence of known faults and/or fractures and any history of, or potential for, seismic events in the area of the injection well. The Region explained that it found no geologic evidence of the existence of a fault in the location of the proposed PGE injection well or any recorded seismic activity originating in the county. Responsiveness Summary at 7. Although it acknowledged that injection of fluids has the potential to induce seismic activity, the Region stated that the conditions necessary to cause such activity (a fault in a near-failure state of stress, a “path of communication” between injected fluid and a fault, and sufficient pressure of injected fluids to cause movement along a fault line) are not present in this case. Id. (citing National Research Council, Induced Seismicity Potential in Energy Technologies 6 (Nat’l Academies Press 2013)).

perform corrective action. See Permit pt. III.A.5 (prohibiting injection operations until the permittee has plugged all abandoned wells identified in the area of review).
9
The Region’s response includes: (1) a background discussion on induced
seismic activity, citing a National Academy of Sciences report on induced seismic potential; (2) a discussion of known faults in the location of the proposed well, relying on data from the United States Geologic Survey and the Pennsylvania Department of Conservation and Natural Resources; (3) a discussion of the effects of earthquakes centered elsewhere, such as a seismic event in Youngstown, Ohio; (4) a discussion of factors affecting seismic activity and comparing the geology where such activity has occurred with the geology surrounding the proposed well; (5) a discussion of the effects of natural gas production at the proposed injection well and the general suitability of depleted oil, gas, or geothermal reservoirs for underground injection; and (6) a discussion of the potential for contamination of underground sources of drinking water resulting from seismic events. See Responsiveness Summary at 7-10.

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With regard to the potential endangerment of underground sources of drinking water due to earthquakes, the Region explained:

   Of the hundreds of thousands of injection wells operating in the
   United States, EPA is not aware of any case where a seismic event
   caused an injection well to contaminate an [underground source of
   drinking water]. There have not been any reports of earthquakes
   having affected the integrity of injection wells in the cases of
   induced-seismicity in the United States. A number of factors help
   to prevent injection wells from failing in a seismic event and
   contributing to the contamination of an [underground source of
   drinking water]. Most deep injection wells, those that are
   classified as Class I or Class II injection wells[,] are constructed to
   withstand significant amounts of pressure. They are typically
   constructed with multiple steel strings of casing that are cemented
   in place. The casing in these wells is designed to withstand both
   significant internal and external pressure. * * * Furthermore, brine
   disposal injection wells are required to be mechanically tested to
   ensure integrity before they are operated and many are
   continuously monitored after testing to ensure that mechanical
   integrity is maintained. The well should shutdown if a seismic
   event that affects its mechanical integrity were to occur, because
   the well will be designed to automatically cease operation if there
   is a mechanical integrity failure. * * * Furthermore, there is no
   fault system present that would allow for the migration of fluid out
   of the injection zone.

Id. at 9-10. Further, as noted in the Statement of Basis, the permit establishes a maximum injection pressure designed to avoid over-pressurization and limit the potential for seismic events. Statement of Basis at 3.

    The Board finds that the Region provided a thorough and rational response

to the concerns raised about seismology. The Wanchisn/Long Petition does not address the Region’s response to comments or explain why the response was clearly erroneous or otherwise warrants Board review.

   3. Well Integrity, Monitoring, and Testing Requirements,

    The Wanchisn/Long Petition raises concerns regarding the well’s

construction, including the pipe thickness and the cement around the well casings, the general integrity of the well, and its ability to withstand the fluid injection pressure. Petitioners also question the sufficiency of testing and monitoring requirements to ensure protection of underground sources of drinking water. See Petition at 5-6, 8-9, 15. The Region responded in detail to these concerns. For

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example, the Region explained in detail why it found that the construction specifications provide adequate protection of drinking water:

   A provision of the UIC regulations, 40 C.F.R. Section
   147.1955(b)(1), requires an injection well’s surface casing to be
   placed 50 feet below the determined lowermost [underground
   source of drinking water]. The lowermost [underground source of
   drinking water] where the proposed PGE injection well is located
   is found at a depth of approximately 520 feet. The well is
   constructed with 11 ¾ inch surface casing, placed to a depth of 568
   feet and cemented back to the surface. It also contains 8 5/8 inch
   intermediate casing which has been placed to approximately 1539
   feet and cemented back to the surface. Both of these casing strings
   are designed to protect [underground sources of drinking water] as
   well as help prevent the rupture or collapse of the well. In addition
   4 ½ inch long string casing has been placed to a depth of 7788 feet
   and has been cemented back to a depth of 6850 feet. The
   requirements of 40 C.F.R. § 147.1955(b)(5) outline the cementing
   provisions for the long string casing and do not require the long
   string casing to be cemented back to the surface. They were
   developed for the protection of [underground sources of drinking
   water] as well as the stability of the down-hole wellbore. This
   casing also helps to support the well and prevent rupture or
   collapse.

Responsiveness Summary at 2.

    Similarly, the Region explained in detail why it has confidence in the

well’s integrity, in the well’s ability to withstand the permit’s maximum allowable injection pressure, and in the sufficiency of the permit’s testing requirements to ensure mechanical integrity:

   EPA will also be conducting a mechanical integrity test. The
   mechanical integrity test is a pressure test, run at ten percent above
   the permitted maximum injection pressure and held for thirty
   minutes. The pressure test is conducted between the 4 ½ inch long
   string casing and the tubing and packer which will be installed in
   the well. This test will determine whether the long string casing,
   tubing and packer have integrity and whether it will be able to
   withstand the maximum injection pressure permitted for the
   injection well. After the mechanical integrity test is conducted and
   the results are successful, the permit requires continuous
   monitoring of the injection well during its operation to verify its
   on-going mechanical integrity.

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Id. at 2-3. Finally, the Region explained why it believes the permit’s monitoring requirements are adequate:

    The permit requires certain injection fluid constituents to be
    analyzed and the results submitted to EPA every two years and
    whenever the operator anticipates any change in the injection fluid.
    The parameters which will be analyzed are listed on page six of the
    permit. EPA believes that the conditions found in * * * the permit,
    are sufficient to adequately characterize and monitor the
    wastewater for injection purposes.[10] The purpose of this
    monitoring is to verify that the fluids injected in the well are the
    type of fluids authorized in the permit. In addition, many of the
    parameters that will be monitored in the injection fluid are also
    found in shallow ground water. Therefore, if any sample results
    show shallow ground water contamination, those results can be
    compared against the injection fluid analyses conducted by the
    injection well operator to determine whether the injection well may
    be the cause of that contamination.

Id. at 5. The petitioners fail to confront the Region’s response on this issue or explain why the Region’s responses were clearly erroneous or otherwise warrant Board review. Further, the Board finds that the permit sets forth detailed construction and operating requirements, as provided in the applicable regulations,that are designed to achieve the overarching purpose of the SDWA and UIC regulations – to protect underground sources of drinking water from contamination.11

    10
        The permit requires continuous and extensive monitoring of various

parameters for the life of the well, such as surface injection pressure, annular pressure, flow rate and cumulative volume in the Injection Well. See Permit pt. II.B. The well must be equipped with a automatic shut-off device in the event of a mechanical integrity failure. Id. In addition, the permit requires monitoring of the nature and composition of the injection fluid. Id. II.B.3. The petition does not raise any specific objections to these or other permit conditions.
11
For example, the permit allows injection “only into a formation which is
separated from any underground source of drinking water by a confining zone, as defined in 40 C.F.R. § 146.3, that is free of known open faults or fractures within the Area of Review as required by 40 C.F.R. § 146.22.” Permit pt. III.A.1. The permit specifically prohibits injection that initiates fractures in the confining zone adjacent to underground sources of drinking water or causes the movement of fluids into an underground source of drinking water. Id. pt. III.B.4. The well must be cased and cemented to prevent the movement of fluids into or between underground sources of drinking water for the life of the well. Id. pt. III.A.2. The permit prohibits injection until the permittee demonstrates

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   Overall, the record demonstrates that the Region imposed appropriate

permit conditions regarding the well’s construction and operating requirements and rationally concluded that these conditions are sufficiently protective of underground sources of drinking water in the vicinity of the well. Petitioners fail to demonstrate that the Region’s determination regarding the well’s construction, mechanical integrity, and testing and reporting requirements was clearly erroneous or otherwise warrants Board review. See In re Bear Lake Props., LLC, 15 E.A.D. 630, 646 (EAB 2012) (the Board typically defers to the permit issuer on fundamentally technical or scientific issues where the permit issuer adequately explains its rationale and supports its rationale in the record).

    4. Injection and Confining Zones

    The Wanchisn/Long Petition expresses concerns regarding the ability of

the well’s injection zone to contain the injected fluid. See Wanchisn/Long Petition at 6. In particular, petitioners ask whether injection will cause fractures or faults into which the injected fluids will flow and whether fluid might travel beyond the injection zone. Id. at 6, 8. As with the other issues, petitioners’ concerns were raised in identical fashion during the comment period, and the Region provided a detailed response. In response, the Region explained that a confining zone, the Onondaga Formation, is immediately above the injection zone and has “very low permeability giving it the ability to confine and trap fluids from migrating upwards.” Responsiveness Summary at 10. In addition, the Region cites other factors preventing migration out of the injection zone such as the permit’s limit on injection pressure and the absence of abandoned wells or other penetrations of the injection zone. Id. at 11. The petition fails to confront the Region’s responses to comments or explain why the responses are clearly erroneous or warrant Board review.

    5. Plugging and Abandonment

   The UIC regulations impose financial requirements for plugging and

abandonment of Class II wells. Applicants are required to submit a plan for plugging and abandonment of the well that complies with 40 C.F.R. § 146.10. See 40 C.F.R. § 144.31(e)(10). Further, the applicant must “demonstrate and maintain financial responsibility and resources to close, plug, and abandon the

the well’s mechanical integrity and that it has plugged all abandoned wells identified within the area of review. Id. pt. III.A.4. Further, as noted above, the permit requires continuous monitoring and an automatic shut-off device in the event of mechanical integrity failure. Id. pt. II.B. Finally, the permit contains detailed reporting requirements for any noncompliance. Id. pt. II.D.

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underground injection operation in a manner prescribed by the [Region] * * *.” Id. § 144.52(a)(7). In the present case, the permit specifies that the permittee “shall maintain continuous compliance with the requirement to maintain financial responsibility and resources to close, plug and abandon the underground Injection Well in accordance with 40 C.F.R. § 144.52(a)(7) in the amount of at least
$60,000.” Permit pt. III.D.

   The Wanchisn/Long Petition asks whether $60,000 is sufficient for

plugging and abandonment. See Wanchisn/Long Petition at 9. The Region addressed this issue in responding to public comments as follows:

    The cost of plugging a well depends, among others things, upon
    the depth of the well and how the well was constructed. PGE has
    submitted a $60,000 letter of credit with a standby trust agreement
    for the plugging and abandonment of the injection well. The
    $60,000 cost to plug and abandon the well was determined by a
    third party plugging contractor. EPA Region III reviewed and
    approved this submission. In the future the Region under the
    permit terms can require the permittee to increase the financial
    responsibility if the Region determines the cost to plug and
    abandon the well has increased beyond what is currently projected.

Responsiveness Summary at 12. The petition fails to indicate why the Region’s response was clearly erroneous or otherwise warrants Board review.12

    12
       By motion filed with the Board on August 4, 2014, Ms. Wanchisn seeks to

supplement the administrative record in this permitting matter with a report prepared by the Government Accountability Office (“GAO”), as well as a summary of that report compiled by Ms. Wanchisn. The Region filed a response to the motion on August 19, 2014. The GAO report, entitled EPA Program to Protect Underground Sources from Injection of Fluids Associated with Oil and Gas Production Needs Improvement, reviews EPA’s regulations governing the UIC program for Class II injection wells and makes various recommendation for improved oversight. See GAO-14-555, Report to Congressional Requesters (June 2014). As this Board has explained, however, well- established principles of administrative law and EPA regulations governing permit proceedings significantly limit the materials that may be considered part of the administrative record. The part 124 regulations governing this proceeding specify the documents that must be included in the administrative record and expressly provide that the “record shall be complete on the date the final permit is issued.” 40 C.F.R.
§ 124.18(c). Consistent with that regulation and general principles of administrative law, the Board generally declines requests to include in an administrative record materials that were not actually before the decisionmaker at the time he or she made the decision that is under review. See In re Dominion Energy Brayton Point, LLC, 12 E.A.D. 490, 516-19

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512 ENVIRONMENTAL ADMINISTRATIVE DECISIONS

    In sum, petitioners Mr. and Ms. Wanchisn and Mr. and Ms. Long have

failed to confront the Region’s responses to their technical concerns and comments, and have failed to demonstrate that the Region made a clear error of law or fact or abused its discretion in issuing this permit. The Board therefore denies the Wanchisn/Long Petition for review. See, e.g., In re Seneca Resources Corp., 16 E.A.D. 411, 416 (EAB 2014) (denying review where petitioner failed to discuss the response to comments or specify why the response was clearly erroneous or otherwise warranted Board review).

C. Suzanne Watkins’ Petition for Review Fails to Demonstrate That Review Is Warranted

    Ms. Watkins’ petition seeks Board review of the Region’s permit decision

on the following three issues: the potential adverse effect of a surface spill of injection fluids, the possibility that approval of any additional gas production wells could cause fluid to flow out of the injection zone, and the possibility that injected fluids will return to the surface after injection. See Watkins Petition at 1-

2. For the following reasons, the Board concludes that the petition fails to
   demonstrate that review is warranted.13

   The issues raised by Ms. Watkins were raised during the public comment
   

   period on the draft permits. The Region provided a substantive and reasoned response to each of these issues. In particular, in its response to public comments, the Region explained that the possibility of surface spills at the well site and possible future production wells in the area are outside the scope of the UIC permitting program. Responsiveness Summary at 1. As the Region stated, “when making the decision whether to issue a UIC permit for PGE, EPA’s jurisdiction rests solely in determining whether the proposed injection operation will safely protect underground sources of drinking water * * * from the subsurface emplacement of fluids. Although these other concerns listed may be relevant to residents, EPA is not authorized under the [Safe Drinking Water Act] to address them within a UIC permit.” Id. at 1-2. The Region stated further that “[t]he Pennsylvania Department of Environmental Protection is the agency responsible

(EAB 2006). Because the GAO report postdates the permit decision in this matter, the Board denies Ms. Wanchisn’s request to supplement the record.
13
Ms. Watkins also appears to question the integrity of the injection well and the
Region’s area of review/zone of endangering influence determination. See Watkins Petition at 2. However, as discussed above, the Region has responded to similar concerns raised during the comment period. See Responsiveness Summary at 3-4, 9-10. The petition fails to demonstrate that the Region’s response to comments was clearly erroneous or otherwise warrants Board review.

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for all surface construction at the proposed well site as well as for surface spill protection.” Id. at 2. Similarly, the Region responded to concerns regarding the approval of additional production wells by pointing out that the State of Pennsylvania, not EPA, regulates production well development in Pennsylvania, including the issuance of drilling permits for any future production wells. Id. at 11.

   In response to questions raised during the public comment period

concerning the possibility of injected fluids returning to the surface, the Region explained:

   Some comments expressed concern that once the fluid is injected
   under pressure it will come back to the surface. There is a
   confining zone, the Onondaga formation * * * immediately above
   the injection zone. This geologic formation has a very low
   permeability giving it the ability to confine and trap fluids from
   migrating upwards.

Id. at 10. Further, as explained above, several other factors serve to keep injected fluids in place such as permit limits on injection pressure and the absence of other wells penetrating the injection zone within the area of review. Id. at 11.

   Ms. Watkins’ petition does not discuss or explain why the Region’s

responses to the comments were clearly erroneous or otherwise warrant review, as required by 40 C.F.R. § 124.19(a)(4)(ii) and Board precedent. Accordingly, the Board denies Mr. Watkins’ petition for review of the Region’s permit decision.

                            V. CONCLUSION

   For all of the reasons stated above, the Board denies the petitions for

review of the Region’s permit decision filed by Ms. Suzanne Watkins (UIC Appeal No. 14-63), Ms. Judy and Mr. Paul Wanchisn and Ms. Stacy and Mr. Mark Long (UIC Appeal No. 14-64), and Mr. William J. Woodcock III (UIC Appeal No. 14-65).

   So ordered.




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