Posted by: Patricia Salkin | July 18, 2014

PA Appeals Court Finds That DEP Was Not Required To Give Notice To Private Well Owners In The Event of a Hydrofracking Spill

This case was brought to the Commonwealth Court of Pennsylvania on remand from a Supreme Court “mandate” directing it to consider the constitutionality of certain provisions of Act 13. Specifically the court was directed to decide: (1) whether notice to only public drinking water systems following a spill resulting from drilling operations, but not private water suppliers, is unconstitutional because it is a special law and/or violates equal protection; (2) whether those provisions of Act 13 prohibiting health professionals from disclosing to others the identity and amount of hydraulic fracturing additives received from the drilling companies impedes their ability to diagnose and treat patients, is unconstitutional because it is a special law and/or violates equal protection and violates the single subject rule; (3) whether conferring the power of eminent domain upon a corporation empowered to transport, sell, or store natural gas in this Commonwealth to take the property of others for its operations is unconstitutional because it permits a taking for private purpose; (4) and whether 58 Pa.C.S. §§ 3302 and 3305 to 3309, which authorizes the Public Utility Commission (PUC) to review local zoning ordinances and to withhold impact fees from local governments, are severable from the enjoined provisions of Act 13.

As to the question of giving notice in the event of a spill, the court reasoned that given the breadth of the trigger for the DEP’s notice obligation under 58 Pa.C.S. § 3218.1, it would not be feasible to require DEP to identify private wells that may be potentially affected by a spill and it is impossible for DEP to provide notice to these unknown private well owners. In regards to the takings claim, 58 Pa.C.S. § 3241(a) only confers upon a public utility possessing a certificate of public convenience the power to condemn property for the injection, storage and removal of natural gas for later public use. Accordingly, the court found this is not considered a taking for a private purpose. The court further held that the single subject rule was not violated because all of the provisions of 58 Pa.C.S. § 3222.1 relate to the trade secrets and confidential proprietary information regarding the chemicals used in the hydraulic fracturing of unconventional wells and under what limited circumstances this information must be reported and released. Finally, the court enjoined the application and enforcement of 58 Pa.C.S. § 3302 as it relates to Chapter 33 of Act 13, and 58 Pa.C.S. §§ 3305, 3306, 3307, 3308 and 3309(a) in their entirety, since those provisions were so dependent on and interdependent with the unconstitutional provisions.

Robinson Township v Pennsylvania, 2014 WL 3511722 (Cmwlth 7/17/2014)

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