The public hadn’t been paying much attention to the leasing and drilling up until that point, even though the park is the crown jewel, out of three county parks in Washington County Pennsylvania, and widely known for its premiere fishing lake. That drilling area is in a Special Protection Watershed, where Range was cautioned early on in the drilling process, by the Pennsylvania Department of Environmental Protection, in a letter signed by Alan J. Eichler, Regional Manager, to be especially careful about not spilling any production or flowback fluids. Below is a copy of that letter, obtained during a file review at the Southwest Regional Office of the D.E.P.
In spite of that pre-emptive warning, a spill and fish kill had occurred anyway, while hydraulic fracturing flowback was being pumped through a 6 inch diameter, temporary, surface pipeline, that extended three and one half miles, all the way cross country, to the Lowry Impoundment Dam, which was later sited for environmental violations by the Pennsylvania D.E.P.
Here we see a photo of that impoundment dam full of rusty colored fracking fluids.
That major spill, officially listed as four thousand two hundred gallons, occurred close to the fracking site, and flowed into a tributary of Cross Creek Lake, causing a fish kill, as well as the death of other aquatic life. One of the bolted flanges on the pipeline had leaked, allowing thousands of gallons of fracking fluids, to flow all the way down to the lake.
On September 30, 2009, Range Resources Corporation cut a check to the Commonwealth of Pennsylvania for $23,500.00 to pay the CACP (Consent Assessment of Civil Penalty) related to this incident. Violations included discharging residual waste to the ground and discharging industrial wastes into the waters of the Commonwealth without permits. These discharges violated part of the Solid Waste Management Act, the Oil and Gas Act, and the Clean Streams Law. The CACP was signed by Range Resources Appalachia’s K. Scott Roy (who joined Range in 2009 after serving nearly 20 years in numerous executive capacities for the Commonwealth of Pennsylvania throughout the administrations of both Governors Tom Ridge and Edward G. Rendell). The CACP was also signed by a second Range official listed as “Secretary or Treasurer, and Kenneth S. Komoroski, Esquire, Attorney for Range Resources Appalachia L.L.C., as well as Alan J. Eichler and Gail A. Myers of the Southwest Regional Office of the Pennsylvania Department of Environmental Protection.
The fine doesn’t appear to take into consideration the fact this spill occurred in a Special Protection Watershed. With that in mind, shouldn’t the fine at least be doubled?
This fine is nothing more than a slap on the wrist. Until fine amounts are increased, drillers will have little incentive to improve their safety records when it comes to spills and other environmental damage. A second approach would be to ban all gas drilling in Special Protection Watersheds.
December 16, 2010 – My comments at the Washington County Commissioners Meeting –
When will the county stop drilling in CC Park? How many acres in the park have already been taken from the public trust for gas drilling and marked NO TRESPASSING? Eminent domain was used to take land from private individuals and families in order to build CC Park. Should our county be acting as an agent for a private corporation (Range) and their shareholders to profit by using the park as a platform for drilling onto private land in these units? Even after Range’s spill/fish kill in May of 2009, little care is being exhibited when these temporary pipelines are run through the park. When will this be addressed? Water levels were very low again this Fall at CC Lake, what was the cause? Is Range still authorized to withdraw 800,000 gallons per day from the lake, and when will these withdrawals end? Who is monitoring the environmental impacts on the park?
September 15, 2011 – My comments at the Washington County Commissioners Meeting –
I’m here with comments and questions regarding the latest three gas wells in Cross Creek Park 35-36-39. What is going on in Cross Creek Park? Some people now call it “Cross Creek Industrial Park.” No wonder… Did you know that during Spring of this year, while clearing approx. 5 acres of timber from our county park for the latest Marcellus Shale drilling pad, Range Resources removed approx. 2 acres of timber from neighboring West Middletown Cemetery without their permission? Did you know that during a second clearcutting of timber from another 5 acres in our county park, Range made the drilling site visible from Cross Creek Lake? This is a violation of their lease with Washington County: Under Section 7.2 – “Lessee shall strictly adhere to the following reclamation/revegetation plan for each well site and affiliated pipelines.” Paragraph b. 6. – “Maintain border of trees within viewshed of lake and shelters.” Did you know that all this clearcutting was done BEFORE Range received conditional use approval for these wells from Hopewell Twp last week, on Wednesday, September 7, 2011? Isn’t that the cart before the horse? Did you know that during Range’s conditional use hearing for these wells their representative could not fully describe how they would handle approximately 3-million gallons of toxic flowback? This is the same type of flowback Range spilled in the park in May 2009 resulting in a fish kill and a $23,500 fine from the DEP. A February 26, 2011 New York Times article reports an EPA study showing radiation levels that were off the chart from Cross Creek County Park well 6H flowback, so this is a very important public safety question. Did you know that one of the three new wells appears to violate a neighboring property in West Middletown that is not leased? Is it within 3,000 feet of the breastworks of the dam, violating the drilling lease? Did you know Range’s engineering blueprints for these latest 3 wells referenced maps from 1965 before the lake was flooded, and the new prints did not even show Cross Creek Lake? Did you know that most of the acreage from this new drilling unit appears to be on private property, so that our county park is once again serving to profit more private landowners than county taxpayers? Drilling in Cross Creek Park has run amuck. I would strongly suggest that Range’s drilling lease be terminated once the remaining wells outlined in their lease are drilled. I would also recommend that no further drilling be done in our county park beyond that point. Thank you for your time.
November 17, 2011 – My comments at the Washington County Commissioners Meeting –
Water Withdrawals – Over the past few years, thousands of Residual Waste tanker trucks have used the parking lot in front of the Washington County Firefighter Academy on Rt. 519 to withdraw water from Chartiers Creek, often times when the creek has been at low flow. Last time I checked with the DEP, this was not an authorized water withdrawal point for Marcellus drilling, so who is allowing this activity to continue?
Gas Leases – Regarding the proposed leases you are considering with Range Resources: Were these gas leases put out for bid, and if not, why not? Chesapeake offered our township 18% royalties last year; these leases are for 17.5%. Are you sure you aren’t leaving money on the table? With all of Range Resources’ blunders in Cross Creek Park, why would the county commissioners even consider leasing to them again? If a contractor worked on your house and badly botched a couple jobs, wouldn’t you call another contractor when you needed more work done? By the way, the double-stumpage Range paid for their blunder of cutting the best stand of hardwood trees in Cross Creek Park? …that double stumpage payment requirement is already mentioned on Page 9 of the lease signed in 2003, so you got no special damages from Range in that regard.
The Gas Drilling Legacy – In yesterday’s O-R article, Commissioner Burns was quoted as saying, “He wants to see half of the proceeds the county receives for the gas to be set aside for what he called a ‘legacy fund’ that would be used for environmental, health, education, natural resources or historic preservation so that future generations benefit.” Mr. Burns, if you are truly concerned about our health, natural resources and the preservation of Washington County, you won’t sign any more gas leases. Period. I quote from the April 2011 publication “Natural Gas FLOWBACK: How the Texas Natural gas boom affects health and safety” published by OGAP: “Throughout the Barnett Shale, residents are concerned about air pollution from oil and gas operations and the risks of groundwater and surface water contamination by fracking chemicals. Health problems have become central issues, with many residents complaining of odors, dizziness, nosebleeds, headaches, agitation, and in some cases, more severe symptoms. Livestock have died. Homes have been abandoned on advice of physicians.” This sounds exactly like Washington County! “The industry denies the risks and state regulators downplay them, saying there are no definitive links between drilling, fracking and production operations and residents’ complaints and symptoms. As we will see, that’s not true: doctors and investigators have documented contamination of people and property with chemicals used by the industry that could not have come from anywhere else. One thing is clear: Where drilling goes, contamination and health problems follow.” The most controversial case of water contamination in the Barnett Shale comes from southern Parker County. In 2009, Range Resources of Fort Worth drilled two gas wells, about 120 feet from one private water well and 470 feet from another. In December 2009, four months after gas production started, one water well owner noticed that his water was effervescing, or fizzing. He began raising concerns with the Railroad Commission in July 2010, when he discovered he could set the water from his garden hose on fire – a phenomenon that has been found at other fracking sites where methane has contaminated water supplies. In August 2010, the owners of both water wells commissioned testing, which found benzene, toluene, methane and ethane. Soon afterward, both the Railroad Commission and the EPA conducted their own tests. The Railroad Commission found benzene and toluene; the EPA found the same chemicals as in the water well owners’ tests, plus propane and hexane. Isotopic testing by the EPA indicated that the methane in the water was likely from the same source as methane found in the natural gas produced by Range’s wells. In November 2010, the EPA concluded that the danger of explosion was so great that it advised the owners of both water wells to stop using the water.
To the Washington County Commissioners and fellow citizens of Washington County –
It is somewhat alarming to learn from a new US Geological Survey study that nearly 1-percent of our county land has already been disturbed by Marcellus Shale drilling, especially considering the drilling has just begun. According to former DCNR secretary John Quigley, this current wave of resource extraction could rival or surpass the historic disturbance from other mining and logging industries. We are also beginning to learn of the hidden liabilities and environmental costs. It now appears that Range Resources Appalachia LLC has been violating the terms of their drilling lease inside Cross Creek County Park by burying toxic waste in the park. I submit this letter and the following documents to be included in the public record of this meeting. During a recent file review at the SW office of the Pa. DEP, a ‘Waste Management Transmittal – Form OG-71’ dated December 2009 (marked Exhibit A) was discovered, showing that Range Resources used ‘Alternative Waste Disposal Practices’ to bury what some call a ‘toxic teabag’ in our county park. This is a direct violation of ‘Slush Pit – Section 3.1’ of the ‘Cross Creek County Park Oil and Gas Lease’ dated March 10, 2003 (marked Exhibit B) which reads, “All trash, rubbish, or waste materials from each drilling site shall be removed and disposed of in a properly licensed solid waste site.” Adding to the dire nature of these actions at Cross Creek County Park wells #6H and #8H is the fact that sampling by the US Geological Survey of produced water from well #6H during production activities in 2009 revealed high levels of radioactive materials Radium-226 and Radium-228 (marked Exhibit C). In the next document, ‘Drilling’s Legacy: Toxic Teabags in Cross Creek County Park’ (marked Exhibit D) you will find an in-depth look at the legal ramifications of these actions in our county park as they apply to the county commissioners and citizens of Washington County. On page 2, please note the expert’s recommendation that “Deed Restrictions or Environmental Covenants, noting the presence and locations of buried waste, are about the only means to ensure enforcement of an existing (state) regulation prohibiting the puncturing or perforating of a buried (slush pit) liner.” Two photos (marked Exhibit E) show a restored field below Cross Creek County Park wells #6H and #8H where recent radioactive monitoring revealed radioactivity levels at more than double the background level in surrounding areas of the park. Several spots in that field also revealed partially buried pieces of black plastic pit liner, as seen in the second photo. My question is this: What do the commissioners plan to do in order to remediate this environmental degradation of our park, prevent future violations of the drilling lease, and protect Washington County citizens from latent liabilities and health risks arising from toxic teabags buried inside Cross Creek County Park?
Probably one of the strangest twists in this entire story, is that even after the timber cutting blunder, and all the spilling by Range Resources, in our county and Cross Creek Park, the Washington County Commissioners gleefully appeared in Range Resources’ videos on YouTube, talking about how wonderful drilling and fracking had been in Cross Creek County Park, while promoting the idea of Allegheny County commissioners leasing the gas rights for Deer Lakes Park, in Allegheny County, Pa.
It was business as usual in Cross Creek County Park, they had signs telling people not to smoke cigarettes because of “young lungs” near the boat launch, yet this gas well flare, across the lake at the top of the hill, inside the park, was polluting the air for miles around, with toxic smoke:
Look for other reasons for fish kill
I, like many, read with interest the article about the dead fish found at Cross Creek Lake. It seems an angler found quite a few dead bluegill and crappie along the shoreline and reported it to the proper authorities.
As I understand after reading the Observer-Reporter, the cause was blamed on post-spawn stress, which I, along with many others, find hard to believe. I must say, in all honesty, I have never seen it, even though I am an avid fisherman.
I make it my business to fish many a small farm pond and all of them hold a good number of bluegill, and a few are also home to crappie. There are a few ponds I stocked with these fish that I caught in one local pond and released into another.
I am familiar with both of these panfish, and my first thought was the two don’t spawn at exactly the same time. I am not a biologist, though I have a grandson who is. Even a nonprofessional who spends a lot of time pursuing fish can have an opinion.
Crappie spawn when water temperatures reach 56 to 59 degrees. The bluegill require waters to reach slightly higher temperatures and spawn when waters reach 67 degrees.
These temperatures are what trigger the spawn and are far enough apart to spread spawn time to about three to four weeks in a normal season. With that spread, it seems unlikely both would die of post-spawn stress at the same time.
Also, the carcasses of dead fish can disappear pretty quickly as every local beast, fowl and crayfish gobble them up. Just maybe we should be looking in another direction for the cause of this fish kill.
As I said, it’s just an opinion.
July 20, 2017 OPINION BY JUSTICE DONOHUE – PENNSYLVANIA SUPREME COURT – DECIDED ON June 20, 2017
Because state parks and forests, including the oil and gas minerals therein, are part of the corpus of Pennsylvania’s environmental public trust, we hold that the Commonwealth, as trustee, must manage them according to the plain language of Section 27, which imposes fiduciary duties consistent with Pennsylvania trust law. We further find that the constitutional language controls how the Commonwealth may dispose of any proceeds generated from the sale of its public natural resources.
The drafters of the Environmental Rights Amendment recognized and acknowledged the shocks to our environment and quality of life:
We seared and scarred our once green and pleasant land with mining operations. We polluted our rivers and our streams with acid mine drainage, with industrial waste, with sewage. We poisoned our ‘delicate, pleasant and wholesome’ air with the smoke of steel mills and coke ovens and with the fumes of millions of automobiles. We smashed our highways through fertile fields and thriving city neighborhoods. We cut down our trees and erected eyesores along our roads. We uglified our land and we called it progress.
John Childe on the historic ruling:
”The P.E.D.F. is grateful that, after 45 years since enactment, the Supreme Court has finally adopted Article I Section 27 as a viable trust for our public natural resources. The Court has mandated that the Commonwealth must manage and protect our public natural resources under strict compliance with the fiduciary requirements as a trustee. No longer can the Commonwealth treat our public resources as government property. Our resources are our property, and the government must protect them for us and for all our future generations. The Court has further recognized that money from the conversion of those resources must be used for the benefit of those resources. (Source: http://www.pedf.org)
After reading those comments from Justice Donohue and John Childe, I’m reminded of the last paragraph of a legal document deeding acreage to Washington County for the development of Cross Creek County Park: “The indenture is given to provide land for recreation, conservation, and historical purposes, as said purposes are defined in the ‘Project 70 Land Acquistion and Borrowing Act’ approved June 22, 1964, P.L. 131”
Green group asks if Allegheny County is using Marcellus Shale millions as directed
Allegheny County leased the natural gas rights beneath its airports and Deer Lakes Park to raise hundreds of millions of dollars for promoting economic development, reducing airline fees, upgrading park facilities and funding capital projects.
Now, the environmental organization PennFuture suggests that a recent state Supreme Court ruling directs the county to use the money for one purpose: protecting public natural resources like clean air and water.
In a letter to county officials on July 7, PennFuture’s vice president of legal affairs, George Jugovic Jr., asked how the county plans to comply with the high court ruling last month, which found that gas royalties from leases on state forests must be spent on conservation, not on general state budget items that serve other public benefits.
More broadly, the court declared that “all proceeds from the sale of our public natural resources are part of the corpus of our environmental public trust” and that the environmental trustee obligations described in the state constitution apply to all levels and branches of government.
“There can be no question that Allegheny County must abide by the court’s ruling” and “must use revenue derived from the lease of public trust resources — such as minerals beneath Deer Lakes Park and the Pittsburgh International Airport — exclusively for purposes authorized by the trust,” Mr. Jugovic wrote. Those purposes are limited to conserving and maintaining public natural resources for current and future generations.
The letter is one of several aftershocks following the landmark June 20 ruling that highlight its significant financial implications.
At the state level, the environmental group that won the case — the Pennsylvania Environmental Defense Foundation — is seeking to have a court declare part of the state general fund budget that became law on July 11 unconstitutional because it uses $61 million in gas drilling revenue from state forests to fund the Department of Conservation and Natural Resources’ daily operations, which the group says violates the Supreme Court’s ruling.
The group’s attorney filed an amended application for an injunction on Thursday to block the state from transferring the $61 million out of a special conservation fund.
PennFuture’s letter to Allegheny County is the first of what will likely be many more queries to local governments across the state that have raised money by opening public lands for Marcellus Shale natural gas development.
The organization is doing research now to determine which other jurisdictions have leased public gas rights.
The point of the letter, Mr. Jugovic said, was to alert the county of its obligations and to start a dialogue about how it will meet them. He said the letter is “not necessarily” a precursor to formal legal action.
Allegheny County spokeswoman Amie Downs said the county is still reviewing the court decision and its implications.
Allegheny County leased the natural gas rights beneath Pittsburgh International and Allegheny County airport to Consol Energy in 2013 in a deal that is expected to pay the airport authority an estimated $450 million in royalties over two decades. Wells at Pittsburgh International Airport began producing gas — and paying royalties — last summer.
The county leased the natural gas rights beneath Deer Lakes Park to Range Resources in 2014 with the expectation of receiving more than $50 million in royalties.
Left unclear by the Supreme Court decision — and crucial for the county’s future spending decisions — is what, exactly, counts as public natural resources.
The case dealt with gas rights under land specifically dedicated to conservation. Although the justices in the majority said the public environmental trust is broader than just state parks and forests, they did not define the breadth of the trust or whether it would encompass publicly owned natural gas beneath developed land, like Allegheny County’s airports.
“Looking at the narrowest possible interpretation, I think what’s most plain is the royalties from natural gas beneath Deer Lakes Park must be used for public trust purposes,” Mr. Jugovic said. “Beyond that, there’s a number of questions that need to be answered and we’re asking the county, how are you going to answer that question?” Link to story.
Findings of the Pennsylvania Supreme Court, interpreted by John Childe, of Pennsylvania Environmental Defense Foundation:
1. The standard for review of challenges of government actions under Article I § 27 is the text of the amendment itself as well as the underlying principles of Pennsylvania trust law in effect at the time of the enactment.
(This is a really big deal. Pennsylvania is the first in the nation to have an enforceable trust under the Constitution.)
2. The Payne v. Kassab three-prong test of the Commonwealth Court to determine compliance of government actions with Article I § 27 has been overturned, thus eliminating forty-three years of precedent, and opening the door to significant changes on how environmental laws are enforced and permits are issued. (This is a really big deal. It precludes the Legislature from controlling the meaning of the Environmental Amendment.)
3. The second sentence of the Environmental Amendment establishes that the people own the public natural resources, not the Commonwealth. (This is a big deal. It eliminates all previous common law public trust precedent, and precludes “balancing” protecting the resources with other Commonwealth duties. No more “Thumb on the Scale.”)
4. The third sentence of the Environmental Amendment establishes a public trust.
5. The terms “trust” and “trustee” carry their legal implications, their fiduciary duties.
(This is a really big deal. It pins down the Commonwealth greatly by requiring compliance with legal authority of the trustee duties.)
6. All agencies of the Commonwealth, both statewide and local, have a fiduciary duty to act toward the corpus of the trust, the public natural resources, with prudence, loyalty and impartiality. (This eliminates the Commonwealth Court theory that there is only one trustee, the Commonwealth. All agencies of the Commonwealth must comply with fiduciary duties.)
7. The Commonwealth may not act as proprietor of our resources, only as trustee. (Again, this reverses a century of belief that the Commonwealth owns the property and the people have only equitable interest.)
8. The standard for determining compliance is based on the plain meaning of “conserve and maintain,” which implicates a duty to prevent and remedy the degradation, diminution or depletion of our natural resources. (This is a really big deal. There is no limitation of this duty to be based on “reasonable” degradation, diminution or depletion. This establishes a stringent standard to be met to be in compliance with the terms of the trust.)
9. This duty is an affirmative duty to prohibit the degradation, etc.
10. The trustee must also act affirmatively to pass such laws as will best preserve the subject of the trust, and secure its beneficial use in the future to the people of the state. (This is another big break. The Legislature and the Department of Environmental Protection are much more limited to providing real protection of our air and water.)
11. Proceeds from the sale of natural gas and oil are part of the corpus of the trust and must remain part of the trust.
(This is a big, big deal. All royalties from oil and gas must stay as part of the trust, and be used only to conserve and maintain the natural resources. Hundreds of millions of dollars, if not billions, must be used for conservation and maintenance of our public natural resources.)
12. The Supreme Court wants the Commonwealth Court to determine if lease and bonus payments are also assets of the trust.
13. Sections 1602 and 1603 of the Fiscal Code are unconstitutional. (This is a really big decision, to find statutory provisions in violation of the Environmental Amendment.)
Link to the full Pa. Supreme Court decision
In closing, it’s worth reflecting back on some excerpts from the original oil and gas lease for Cross Creek County Park, seen below, especially as it relates to slush pits and their complete removal. It’s also worthy of note, that the lease was modified in 2012 to permit drilling and fracking under the earthen breastworks of the Cross Creek Lake Dam, while extending drilling inside the park to seven well pads.
EXCERPTS FROM THE 10 MARCH 2003 GAS LEASE FOR CROSS CREEK COUNTY PARK:
OIL AND GAS LEASE
CROSS CREEK COUNTY PARK
THIS AGREEMENT made and entered into this 10th day of March, 2003, by and between the County of Washington, Pennsylvania, hereinafter designated “County” and Great Lakes Energy Partners, L.L.C., with its principal place of business at 125 State Route 43, PO Box 550, Hartville, OH 44632-0550, and authorized to do business within the County of Washington, hereinafter designated “Lessee”.
j. No fracturing of rock will be allowed within a 3,000 foot radius of the dam, for all strata above the top of the Onondaga Formation unless
otherwise approved in writing.
k. The number of wells shall be limited to six (6) below the Onondaga Formation and sixteen (16) above the Onondaga Formation.
10.2 Well spacing shall not be closer than one (1) well for every forty (40) acres where oil is produced or 220 acres where gas is produced.
22.1 Lessee shall properly and effectively plug all wells on the leased premises before abandoning in accordance with the regulations of the Department of Environmental Protection, Bureau of Oil and Gas Management and all applicable laws of the Commonwealth.
Exhibit A –
1.3 Lessee shall at all times perform its work in such a manner as to substantially minimize the possibility of polluting the air, land, or bodies of water with any materials harmful to the environment.
1.7 The discharge of wastes to streams within the Commonwealth will not be permitted unless such discharges meet the standards of the Department of Environmental Protection. Water quality not to be less than quality at time Lease executed.
3.1 Each slush pit will consist of two compartments; one to contain fluids from the drilling operations and the second to contain surface runoff from the drilling site. Unless authorized by County, all slush pits will be located at approximately the same elevation as the drilling site. Depending on the topography and slope conditions, the slush pit to contain surface runoff may be located below the drilling site and a safe and reasonable distance from the stream in which the effluent will be discharged. The slush pit used to contain drilling fluids, mud, and water will be lined with plastic so that no escape of these fluids will occur. If said fluids contain oil or other chemical substances which are harmful to the forest environment, Lessee shall transport these fluids for disposal. All trash, rubbish, or waste materials from each drilling site shall be removed and disposed of in a properly licensed solid waste site. All pits shall be filled with earth and developed per County specifications at Lessee’s expense upon completion of each well.
P.S. Don’t miss the second part of this blog: “Returning the Favor“