EAB Grants Remand of Proposed Brady Twp. Disposal Injection Well Permit

WASHINGTON, D.C. – The Environmental Appeals Board (EAB) has granted a motion from the federal Environmental Protection Agency (EPA) for the voluntary remand to allow reconsideration of a permit decision for a proposed disposal injection well in Brady Township.

Windfall Oil & Gas of Falls Creek has proposed a frack/brine fluid disposal injection well to be located on Highland Street Extension in Brady Township.  Frank Zelman is the landowner and lease holder with Windfall Oil & Gas.

In Pennsylvania, a Class 2 disposal injection well requires an EPA Underground Injection Control (UIC) permit. It also requires a state Department of Environmental Protection (DEP) well drilling permit.

On Feb. 14, the EPA issued Windfall Oil & Gas its UIC permit for its proposed disposal injection well. However, Windfall Oil & Gas cannot begin drilling until the EPA finalizes the UIC permit and it also receives its DEP drilling permit.

The EAB received 57 petitions requesting review of the UIC permit. On May 15, the EPA filed a motion requesting a voluntary remand of the permit “to reconsider the comments submitted during the public hearing and comment period and to assure that the substantive and procedural requirements” were met.

In its motion, the EPA explained that upon review of the administrative record, it determined that “certain public comments were not fully addressed or considered during the permit decision” and that “there are factual mistakes in the Response to Comments document.” The EPA stated its plans to correct its errors and to reconsider the public comments and then “decide whether to reissue the permit, draft a new permit for public comment or deny the permit.”

Upon discussion the EAB granted the remand request, stating “a voluntary remand is generally available where the permitting authority has decided to make a substantive change to one or more permit conditions, or otherwise wishes to reconsider some element of the permit decision before reissuing the permit.” The EAB emphasized it “typically grants a motion [for remand] where the movant shows good cause for its request and/or granting the motion makes sense from an administrative or judicial efficiency standpoint.”

According to the EAB order, the EPA clearly expressed its intent to reconsider its decision on the permit. In its order, the EAB stated that administrative efficiency will be served by allowing the EPA to reconsider its permit decision. The EAB also noted that none of the petitioners opposed the EPA’s motion.

“For all of these reasons, the board agrees that a remand for reconsideration of the permit decision is appropriate,” the EAB stated. “If upon reconsideration, the [EPA] determines that a new draft permit should be issued or that significant conditions of the permit should be changed, it must provide an additional public comment opportunity under the applicable public participation procedures.”

In addition, the EAB stated that regardless of whether reopening is compelled by requirements, the EPA must determine whether “substantial new questions concerning a permit” merit an additional opportunity for public comment.

By granting the motion for remand, the EAB accordingly dismissed the UIC appeal challenging the EPA’s Feb. 14 permit decision. After reconsideration, the EAB stated the EPA must issue a new final permit decision, which petitioners may challenge to preserve the option of seeking judicial review of the EPA’s action on the proposed Windfall permit application.

The EAB stated that petitions for review must be filed within 30 days after the EPA serves its notice of the revised permit decision.

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