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Chesapeake Appalachia, L.L.C. v. Dep't of Envtl. Prot.

Commonwealth Court of Pennsylvania

April 3, 2014

Chesapeake Appalachia, L.L.C., Petitioner
v.
Department of Environmental Protection, Respondent

Argued March 10, 2014

Appealed from No. 2012-016-L. State: Agency Environmental Hearing Board.

Anthony R. Holtzman and Craig P. Wilson, Harrisburg, for petitioner.

Geoffrey J. Ayers, Regional Counsel, Williamsport, for respondent.

BEFORE: HONORABLE DAN PELLEGRINI, President Judge, HONORABLE P. KEVIN BROBSON, Judge, HONORABLE JAMES GARDNER COLINS, Senior Judge.

OPINION

Page 725

P. KEVIN BROBSON, Judge

Chesapeake Appalachia, L.L.C. (Chesapeake), petitions this Court for review of an order of the Environmental Hearing Board (EHB), granting summary judgment in favor of the Department of Environmental Protection (Department) and dismissing Chesapeake's appeal of a December 23, 2012 letter (Letter) issued by the Department. We affirm.

Following a rash of natural gas leaks into various drinking water supplies and surface waters of the Commonwealth over the course of nine months in 2010, Chesapeake and the Department entered into a consent order and agreement (COA) on May 16, 2011. (R.R. 42a-50a.) The COA addresses Chesapeake's operational and remedial responsibilities with respect to 116 gas wells, 17 private drinking water supplies, and various surface waters of the Commonwealth. (R.R. 42a-43a.)

The COA conveys the parties' desire to avoid litigation and intent to be legally bound and provides that Chesapeake " consents to the entry of this Consent Order and Agreement as a final Order of the Department; and that Chesapeake hereby knowingly waives its rights to appeal this Consent Order and Agreement and to challenge its content or validity." (R.R. 64a.) Paragraph 3.a. of the COA provides that Chesapeake " shall submit to the Department, for review and approval," a corrective action plan (CAP) which " identifies the actions Chesapeake shall take to analyze each and every gas well identified for evaluation . . ., and recommendations for the rehabilitation work necessary to control and mitigate shut-in surface casing pressure and stray gas from those wells." (R.R. 51a-52a.) In paragraph 9, Chesapeake further agreed:

With regard to any document that Chesapeake is required to submit pursuant to this Consent Order and Agreement, the Department will review Chesapeake's document and will approve, modify or disapprove the document, or a portion thereof, in writing. . . . Upon approval by the Department, the document, and any schedule therein, shall become a part of this Consent Order and Agreement for all purposes and shall be enforceable as such.

(R.R. 59a.) Lastly, in Paragraph 24, Chesapeake agreed that

any decision which the Department makes under the provisions of this Consent Order and Agreement, . . . is intended to be neither a final action under 25 Pa. Code § 1021.2, nor an adjudication under 2 Pa. C.S. § 101. Any objection which Chesapeake may have to the decision will be ...

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