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Environmentalists Protest Pa. Bill Endorsing Mine Water Use in Fracking

A group of 35 public advocacy and environmental organizations in Pennsylvania are calling on state senators there to either table or vote no on a bill that would limit the liability of oil and gas drillers that use polluted water from mines across the state to frack their wells.

The group on Thursday sent a letter to state senators, who are soon expected to vote on Senate Bill 411, after the Senate Appropriations Committee recently moved the bill to the floor. In their plea, the organizations said impacted residents would be left with little recourse if drillers are granted immunity. The committee recently approved an amendment in Pennsylvania's Environmental Good Samaritan Act that would absolve the industry of liabilities in using the substance for fracking.

More striking, though, was the group's reference to a recent Pennsylvania Supreme Court ruling that struck down parts of Act 13 -- a comprehensive piece of oil and gas legislation passed in 2012 -- because some of the law violated the environmental rights amendment included in the state's constitution (see Shale Daily, Dec. 20).

It's just the latest instance of those who would halt or slow the pace oil and gas drilling citing last month's court ruling. Already, townships in the state have postponed permit hearings; nearby states have expressed uncertainty about what it could mean for similar challenges within their borders, and Pennsylvania regulators remain unclear of their power under the decision (see Shale Daily, Jan. 15; Jan. 6; Dec. 27).

The environmental rights amendment, or Article I, Section 27, lays out the rights that people in Pennsylvania have to clean air, pure water and natural scenic beauty, as well the obligation the state has to protect those rights. The court ruled essentially that those rights would be violated by allowing state, rather than local, regulation of drilling.

Similarly, "the General Assembly would violate the Pennsylvania constitution if it enacts S.B. 411 without any environmental impact assessment," the groups wrote in their letter. "As the Pennsylvania Supreme Court made clear last month in the Act 13 litigation, the General Assembly has an obligation under Article I, Section 27 of the Pennsylvania Constitution to perform environmental impact analyses when it enacts legislation that affects the reserved environmental rights of Pennsylvania citizens and public natural resources."

The state, seeking to dispose of acid coal mine drainage currently flowing into streams and rivers, has in recent years been pushing the use of that water for fracking. In January 2013, the Pennsylvania Department of Environmental Protection (DEP) issued a white paper on its use outlining a process for companies to submit proposals for its application in drilling (see Shale Daily, Jan. 14, 2013). In 2012, the state senate passed a bill limiting the liability of mine operators and landowners for any injury or damage caused by the use of mine drainage in hydraulic fracturing (seeShale Daily, Oct. 22, 2012).

Under S.B. 411, those using the waste for industrial, commercial or environmental benefits would face less liability. Some operators in Pennsylvania have been using the drainage to frack wells, but others have expressed concerns about the liabilities involved.

Former DEP Secretary Michael Krancer said at the time the DEP issued its white paper that "abandoned mines present Pennsylvania with one of the biggest environmental challenges." The initiative, he said, combined "remediating abandoned mine water with the responsible extraction of our natural gas resources" and called its use a win for the environment and the economy.

The DEP issued its white paper largely on the basis of studies conducted by the U.S. Geological Survey (USGS) that found mine drainage affects the quality of potential water sources in metal and coal mining regions across the country. The waste contains heavy concentrations of acidic metals and poses a threat to aquatic life and public waterways, the USGS said.

Environmentalists have raised concerns about transferring the polluted water to clean watersheds. In their letter to senators, the organizations said an environmental impact study would be needed to go beyond the USGS studies and assess the risk mine drainage in fracking poses to the public, especially in light of the recent Act 13 ruling.

According to DEP data released last year, 300 million gallons of water is discharged from mines into Pennsylvania waterways every day, impairing more than 5,500 miles of rivers and streams in the state.

In December, Duke University also published a study showing that when acid mine drainage is mixed with fracking wastewater, it can reduce, or remove the radioactive material it contains.

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