Pa judge rules in favour of Ultra Resources: “with eight compression sites, all within 5 square miles of one another, emitted more than 100 tons of nitrogen oxide per year”

In first crack at fracking issue, Pa. judge sides with driller by Gina Passarella, March 3, 2015, The Legal Intelligencer
A federal judge took a literal definition of “adjacent” when determining whether a natural gas company’s compression sites should be lumped together when looking at potential Clean Air Act violations.

In Citizens for Pennsylvania’s Future v. Ultra Resources, the environmental advocacy group alleged oil and natural gas extraction company Ultra Resources violated the Clean Air Act because its eight compression sites, all within 5 square miles of one another, emitted more than 100 tons of nitrogen oxide per year.

Such total emissions would require a special permit — one Ultra Resources did not get because it received eight individual permits for the compression stations, each of which individually emitted far less than 100 tons per year.

U.S. District Judge Robert D. Mariani of the Middle District of Pennsylvania said the U.S. Court of Appeals for the Third Circuit and any of the district courts in the circuit have not weighed in on the meaning and scope of “adjacent” when applied to gas extraction through fracking. And the Pennsylvania Department of Environmental Protection, in its guidance on determining when sources should be considered adjacent for purposes of determining if aggregation is appropriate, did not define the term beyond its dictionary definition.

Both sides stipulated the eight compression sites were within no more than 5 square miles of one another. But Judge Mariani said Citizens for Pennsylvania’s Future’s argument would require him to run afoul of DEP guidance that says facilities cannot be “daisy-chained” together to establish contiguous grouping.

“Because a number of separate and unconnected parcels of land on which the compressors are located would have to be aggregated in order for the [nitrogen oxide] emissions to reach the level of a ‘major’ source, and some of these properties are separated by several miles, the properties at issue cannot reasonably be considered … to be ‘adjacent,’ ” Judge Mariani said.

Judge Mariani also explored the interdependence of the eight compression sites, which the DEP said can be another factor in determining on a case-by-case basis whether sites should be aggregated. Ultra Resources’ eight compression sites are all located within Potter and Tioga counties. The sites were not linked by any pipes, but they all linked to a metering and regulation station owned by another company.

“Despite this court’s finding that the plain meaning of ‘contiguous’ and ‘adjacent’ should control a determination of whether two or more facilities should be aggregated, we decline to hold that functional interrelatedness can never lead to, or contribute to, a finding of contiguousness or adjacency,” Judge Mariani said. Still, he found there was not enough in the case to show the compression sites functioned on an integrated basis.

In granting Ultra Resources summary judgment, he said Citizens for Pennsylvania’s Future did not show how the compression sites are physically proximate or interrelated.

(Copies of the 31-page opinion in Citizens for Pennsylvania’s Future v. Ultra Resources, PICS No. 15-0295, are available from The Legal Intelligencer. Please call the Pennsylvania Instant Case Service at 1-800-276-PICS to order or for information.) [Emphasis added]

[Refer also to:

What are nitrogen oxides?

Nitrogen oxides are a group of gases that are composed of nitrogen and oxygen. Two of the most common nitrogen oxides are nitric oxide and nitrogen dioxide. The chemical formula for nitric oxide is NO; for nitrogen dioxide, it is NO2. Nitrous oxide, N2O, is a greenhouse gas that contributes to climate change.

Nitric oxide is a gas with a sharp, sweet smell; it is colorless to brown at room temperature. Nitrogen dioxide is a colorless to brown liquid at room temperature, with a strong, harsh odor. It becomes a reddish-brown gas at temperatures above 70 degrees F.

Nitrogen oxides are released into the air from motor vehicle exhaust or the burning of coal, oildiesel fuel, and natural gas, especially from electric power plants. They are also released during industrial processes such as welding, electroplating, engraving, and dynamite blasting. Nitrogen oxides are also produced by cigarette smoking.

Nitrogen oxides, when combined with volatile organic compounds, form ground-level ozone, or smog.  Sulfur dioxide and nitrogen oxides react with precipitation, oxygen, and other substances in the atmosphere to form acid rain. …

How might I be exposed to nitrogen oxides?

Nitrogen oxides are common pollutants found in most of the air in the United States. You can be exposed to nitrogen oxides outdoors by breathing air that contains it, especially if you live near a coal-burning electric power plant or areas with heavy motor vehicle traffic. You can be exposed to higher levels if air pollution and smog levels are high.

You can be exposed at home if you burn wood or use a kerosene heater or gas stove. 

How can nitrogen oxides affect my health?

Exposure to high industrial levels of nitric oxide and nitrogen dioxide can cause death. It can cause collapse, rapid burning and swelling of tissues in the throat and upper respiratory tract, difficult breathing, throat spasms, and fluid build-up in the lungs. It can interfere with the blood’s ability to carry oxygen through the body, causing headache, fatigue, dizziness, and a blue color to the skin and lips. 

Industrial exposure to nitrogen dioxide may cause genetic mutations, damage a developing fetus, and decrease fertility in women. Repeated exposure to high levels of nitrogen dioxide may lead to permanent lung damage. Industrial exposure to nitric oxide can cause unconsciousness, vomiting, mental confusion, and damage to the teeth. Industrial skin or eye contact with high concentrations of nitrogen oxide gases or nitrogen dioxide liquid can cause serious burns.

Long-term exposure to nitrogen oxides in smog can trigger serious respiratory problems, including damage to lung tissue and reduction in lung function. Exposure to low levels of nitrogen oxides in smog can irritate the eyes, nose, throat, and lungs. It can cause coughing, shortness of breath, fatigue, and nausea. 

If you think you have been exposed to nitrogen oxides, contact your health care professional.

For poisoning emergencies or questions about possible poisons, please contact your local poison control center at 1-800-222-1222. [Emphasis added]

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