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In re Stonehaven Energy Management LLC

03/28/2013

Case Number:UIC Appeal No. 12-02
ELR Citation:43 ELR 41368

John E. McNerney (“Petitioner”) seeks review of the U.S. Environmental Protection Agency (“EPA” or “Agency”) Region 3’s (“Region”) issuance of an Underground Injection Control (“UIC”) permit to Stonehaven Energy Management Co., LLC (“Stonehaven”) 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 through 148. The permit authorizes construction and operation of a Class II injection well, referred to as Latshaw #9, in Cranberry Township, Venango County, Pennsylvania.

On appeal, the Petitioner raises numerous issues. The Environmental Appeals Board (“Board”) has identified three primary issues it believes are fairly raised by the petition. The Petitioner argues that: (1) the Region clearly erred in the manner in which it accounted for and considered all wells within the area of review or in the corrective action the Region required as to all existing and abandoned wells; (2) the Region clearly erred in its consideration of the geologic formations in the injection zone and the risk of earthquake; and (3) the Region clearly erred in limiting Stonehaven’s financial responsibility requirements in the permit to a $10,000 performance bond to ensure proper abandonment and plugging of the permitted injection well.

Held: The Board remands the permit based on its conclusion that the Region has not provided adequate support in the administrative record for its response to public comments on the geological features of the injection zone and the risk of earthquake. In reviewing an underground injection well permit application, the Region has a regulatory obligation to consider whether geological conditions may allow the movement of any contaminant to underground sources of drinking water. Petitioner and other commenters on the draft permit raised concerns regarding the risk of contamination of underground sources of drinking water due to earthquakes or faults. Although the Region addressed these comments in its response to comments document, the Board concludes that the Region’s response was conclusory and that the administrative record does not adequately explain and support the Region’s rationale. In particular, the Region did not identify in the record the basis for its conclusions that there is no evidence of seismic activity in the well area and that the evidence shows there are no transmissive faults that intersect or could be influenced by the intended zone of injection. The permit is therefore remanded.