Chapter 78: A guide to the proposed oil and gas regulations
Update: The public hearing scheduled for tonight in Tunkhannock has been postponed until January 27.
State environmental regulators are gathering public comment on a proposed overhaul of Pennsylvania’s oil and gas regulations that will change the way the industry operates above ground.
The wide-ranging revision will update Chapter 78 of the Pennsylvania Code, the section of the state’s rulebook that guides the construction and operation of oil and gas wells. The proposals focus on surface activities on and off well sites: waste handling, spill prevention, pipelines, pits and the protection of public resources.
Some of the revisions were required by the passage of Act 13 in 2012, the state’s updated oil and gas law that also initiated the impact fee and spurred a legal fight over municipal rights to set limits on drilling. Other revisions reflect the Department of Environmental Protection’s effort to adapt its rules to the modern practices of a quickly evolving industry. Still others give legal strength to policies that are already in place by elevating them to the status of a regulation.
What Would the Proposal Change?
DEP puts the proposed changes in four categories: permitting, abandoned well identification, waste management at well sites, and issues off the well site.
Permitting: The draft rules would require companies to submit their well drilling permit applications to DEP electronically for the first time. They would also require permit applicants to consider the ways a well site might disrupt public resources, like parks, public water supplies and protected species. Stewards of public resources would be invited to raise concerns about proposed drilling plans and DEP could add protective conditions to a permit to minimize likely harm to a public resource. But the conditions couldn’t block access to the oil or gas and DEP would be responsible for proving that the conditions are necessary if a company files an appeal.
Abandoned Well Identification: Hundreds of thousands of old oil and gas wells are scattered across Pennsylvania and many were never properly plugged, leaving hazardous pathways for pollution. Because new wells might interact with these old wells, the draft rules would require gas drillers to search (using databases, farm line maps and information from nearby property owners) for any abandoned wells within 1,000 feet of the path of their well bore before fracking their new well. The location of the old wells would have to be reported to DEP, thereby helping to build the state’s database of abandoned wells (which is known to be woefully incomplete). Companies would have to monitor the old wells and plug them if they are altered during fracking.
Waste Management at Well Sites: Many of the changes proposed in the draft rules fall into this category, which includes regulations for handling, storing and cleaning up wastes produced or processed at well sites. The proposals include requirements for keeping spills on the well pad and off the ground with liner and barrier systems as well as standards for remediating spills that reach the ground or waterways. They would eliminate pits and open-top tanks for the long-term storage of brine collected on site from producing wells; increase security requirements around pits and tanks; add approval requirements for certain types of storage containers, underground tanks and waste processing procedures; and limit the kind of waste that can be buried on site.
Off-site Issues: The draft rules address operations that extend beyond the well site to roads, pipeline paths and centralized fluid storage impoundments – large pools that hold fluids used for fracking at multiple well sites in an area. The proposals include standards for building, registering and restoring freshwater impoundments and they codify existing rules for wastewater impoundments. They would create the first standards for temporary pipelines used to pipe fresh or waste water between sites and they also outline planning and approval requirements for boring under waterways to install gas pipelines. The draft regulations would codify existing policies for water management plans and for spreading brine produced from conventional wells on roads to suppress dust or ice. Spreading wastewater or brines from unconventional wells is not allowed.
Did DEP Consider Any Other Changes?
Yes. DEP considered eliminating pits and underground tanks for managing wastes. It also proposed requiring landowner consent before allowing drillers to bury waste at a well site and considered banning unconventional operators from disposing of their solid drilling waste – called cuttings – on site. Those proposals were dropped because DEP “determined that such restrictions were not practical,” according to the agency’s regulatory analysis.
How Does the Recent Supreme Court Decision on Act 13 Affect These Proposals?
According to DEP, it doesn’t much. The Environmental Quality Board that oversees the creation of new regulations asked this same question and DEP’s Deputy Secretary for Oil and Gas Management, Scott Perry, said “it is apparent that the ruling affects very little of the proposed revisions.” His email, which was posted by PA Environment Daily, continued:
“For our purposes, the only component of the regulation affected by the ruling pertains to the Department’s authority to issue waivers [to setback buffers around streams]. The proposed regulation cross references this authority (58 Pa. C.S § 3215(b)) in three locations. This cross referencing can easily be addressed before finalizing the regulation.
It is important to note that much of the proposed regulation is being promulgated pursuant to statutes other than Act 13. For example, aspects of the regulation pertaining to pre-hydraulic fracturing review, centralized wastewater and freshwater impoundments, rock pits, brine spreading and spill reporting and clean-up are promulgated pursuant to the Clean Streams Law, Solid Waste Management Act, Act 2 and the Dam Safety and Encroachments Act.
As such, the vast majority of Subchapter C is not implicated by this decision or even future decisions on the constitutionality of Act 13.”
However, in striking down the section of Act 13 that allowed waivers for stream setbacks, the Supreme Court said that a related part of the law guiding DEP’s consideration of other public resource impacts is entwined with the invalid waiver provision. DEP has asked the court to reconsider this reading, which it said could “needlessly eliminate … the Department’s ability to protect important public resources,” like parks, scenic rivers and historic sites. Depending on how it is resolved, this question could influence DEP’s proposed strategy for putting conditions on drilling permits to protect special areas and species.
How Can I Submit Comments?
Public comments can be submitted online at http://www.ahs.dep.pa.gov/RegComments, mailed to the Environmental Quality Board, P.O. Box 8477, Harrisburg, PA 17105-8477, or emailed to RegComments@pa.gov. The deadline is February 12.
The Environmental Quality Board is also holding public hearings throughout the state. Each hearing starts at 6 p.m.
Wyoming County *This hearing has been rescheduled from Jan. 7 until Jan. 27
Jan. 27, 2014, Tunkhannock High School Auditorium, 135 Tiger Drive, Tunkhannock, PA 18657
Jan. 9, 2014, West Chester University of Pennsylvania’s Sykes Student Union Theater, 110 West Rosedale Avenue, West Chester, PA 19383
Jan. 13, 2014, Pennsylvania College of Technology’s Klump Academic Center, One College Avenue, Williamsport, PA 17701
Jan. 15, 2014, Meadville Area Senior High School Auditorium, 930 North Street, Meadville, PA 16335
Jan. 16, 2014, Good Hope Middle School Auditorium, 451 Skyport Road, Mechanicsburg, PA 17050
Jan. 22, 2014, Washington and Jefferson College’s Rossin Campus Center / Allen Ballroom, 60 South Lincoln Street, Washington, PA 15301
Jan. 23, 2014, Indiana University of Pennsylvania’s Convention and Athletic Complex, 711 Pratt Drive, Indiana, PA 15705
Are These Proposals Controversial?
Some of them are. Shortly before DEP submitted the draft rules to the Environmental Quality Board for review, DEP’s Oil and Gas Technical Advisory Board, made up of industry and academic representatives, wrote a critical letter to say that the draft was flawed and not ready for public comment.
DEP held special work sessions of the oil and gas advisory board this summer with representatives of government, industry, environmental groups and citizens to discuss four particularly contentious sections: the abandoned well survey, public resource protections, waste management issues and the standard for restoring or replacing drinking water supplies damaged by drilling.
Industry groups have called some of the proposed revisions “unjustified and overly burdensome,” while environmental groups are urging supporters to ask for additional rules and stricter restrictions.
Where Can I Read the Draft Revisions?