Pittsburgh, PA and Washington, DC
The Foundation Mineral and Energy Law Newsletter
Pennsylvania – Oil & Gas
(Joseph K. Reinhart, Sean M. McGovern, Gina F. Buchman and Matthew C. Wood)
On April 4, 2024, the Pennsylvania Public Utility Commission (PUC), in a 4–1 vote, adopted a joint motion to comprehensively review processing times of certain applications under its purview. See Press Release, PUC, “PUC Launches Comprehensive Review of Application Procedures” (Apr. 4, 2024). Specifically, the PUC proposed to analyze how to make more efficient application processes that do not have applicable regulatory or statutory deadlines (or have deadlines that the PUC has authority to extend). Joint Motion for Chairman Stephen M. De Frank and Commissioner Ralph V. Yanora (Joint Motion), at 2.
The initiative consists of two parts. First, the PUC directed each of its various bureaus that work on these types of applications to review and inventory each applicable proceeding with the following information:
- the methods by which the PUC receives the applicable filings;
- the statutory or regulatory authority underlying issued approvals;
- whether publication of an application is required;
- whether the application has a protest period, and if so, its length; and
- a description of the bureau’s tasks.
Id.
Second, the Office of the Executive Director will analyze the inventory information, examine each bureau’s average application review time and the total average processing time from application filing to a final decision, and evaluate process improvements. Id. The goal of the evaluation is to reduce processing times by at least 15% (subject to revision), while also considering the allocation of necessary resources, legal deadlines, and compliance with applicable legal requirements under the Public Utility Code, PUC Regulations, or PUC Orders. Id.
According to the Joint Motion, the PUC’s initiative was influenced by multiple Shapiro administration actions, including: (1) the February 2024 PermitConnectPA workshop, which focused on making permitting, licensing, application, and certification procedures more efficient; (2) Governor Shapiro’s creation of the Office of Transformation and Opportunity, “to position Pennsylvania as the most business-friendly state in the U.S. and to empower [stakeholders] to reignite economic growth and promote prosperity throughout the Commonwealth”; and (3) Governor Shapiro’s Executive Order 2023-07, “Building Efficiency in the Commonwealth’s Permitting, Licensing, and Certification Processes” (Jan. 31, 2023). Id. at 1. Executive Order 2023-07 directed all commonwealth agencies to catalog the types of permits, licenses, or certifications they issue (including legal authority and timeframes) and submit the information to the Governor’s office for review and recommendations to make processing times more efficient.
The Joint Motion directs the bureaus to submit their inventories within 60 days of its adoption (by June 3, 2024) and the Office of the Executive Director is tasked with reviewing and compiling the inventories into a report within six months of its adoption, unless a request for an extension is submitted and approved. Id. at 3. The PUC docket for this action is No. M-2024-3047172.
PADEP Presents Revised Draft Notification Rules for Unauthorized Spills into Waters of the Commonwealth
At the May 16, 2024, Water Resources Advisory Committee (WRAC) meeting, the Pennsylvania Department of Environmental Protection (PADEP) presented a revised draft proposed rule that would amend and clarify certain existing spill reporting requirements. The regulation, 25 Pa. Code § 91.33 (Existing Rule), governs notification requirements for unauthorized releases of substances into waters of the commonwealth. Specifically, the Existing Rule requires immediate notification to PADEP if the release of a substance “would endanger downstream users of the waters of this Commonwealth, would otherwise result in pollution or create a danger of pollution of the waters, or would damage property.” 25 Pa. Code § 91.33(a). The party responsible for initiating the notification is “the person at the time in charge of the substance or owning or in possession of the premises, facility, vehicle or vessel from or on which the substance is discharged or placed.” Id. Notably, the Existing Rule, which was adopted in 1971, offers no clear guidance on determining whether notification is required.
To address this, PADEP has proposed a revised draft of the regulation that clarifies the requirements for notifying or not notifying the agency of an unauthorized release (Proposed Rule). See Proposed Revisions to 25 P.A. Code § 91.33. Proposed subsection 91.33(a.1) would require reporting for substances listed in 40 C.F.R. § 117.3 when released in amounts equal to or greater than their reportable quantities and subsection 91.33(a.2) states that a person who immediately notifies PADEP in accordance with subsections (a) and (a.1) has satisfied the notification requirements under section 91.33. The most substantive changes are found in proposed subsection 91.33(a.3), which sets forth the method by which a responsible party can determine that an unauthorized release does not require immediate notification to PADEP. To reach the conclusion that an unauthorized release does not require immediate notification, the responsible party must evaluate and document enumerated factors to determine that the substance(s) “does not cause or threaten pollution of the waters, endanger downstream users or cause damage to property.” Proposed Rule § 91.33(a.3). Those factors include:
- The properties of the substance(s) involved (e.g., harmful effects on human health, animal health, and the environment); persistence in the environment (and how the substance(s) might change); mobility of the substance(s) in soil and water; and the concentration and quantity of the substance(s);
- The location or locations involved, including proximity to commonwealth waters and the characteristics of such waters; land use, soils, and geology; and the presence and qualities of relevant infrastructure, e.g., spill containment systems;
- Weather conditions before, during, and after the incident;
- Presence and implementation of adequate response plans, procedures, or protocols;
- The duration of the accident or other activity or incident.
Id. Under the Proposed Rule, the responsible party would be required to provide this documentation to PADEP upon request, with a signed statement attesting to its accuracy. Id. § 91.33(a.4). The last addition, proposed subsection 91.33(a.5), confirms that not immediately reporting “an accident or other activity or incident which caused or threatened pollution, endangered downstream users or caused damage to property as described in subsection (a)” is a violation of section 91.33.
At the May 16, 2024, WRAC meeting, PADEP stated its goals for and the purposes of the Proposed Rule: (1) make notification requirements straightforward for stakeholders, including PADEP’s consistent application of the Proposed Rule; (2) provide stakeholders increased clarity and consistency regarding notification of unauthorized discharges; and (3) confirm that the Proposed Rule does not expand the set of discharges that require notification to PADEP. PowerPoint Presentation, WRAC, “Notification Requirements for Unauthorized Discharges to Waters of the Commonwealth: Revised Draft Proposed Rulemaking” (May 16, 2024) (PADEP Presentation). PADEP also offered examples of unauthorized discharges where notification would not be required (e.g., minor motor oil spill that will not reach waters), may be required (e.g., spill of non-liquid materials like soybeans into stream), and would be required (e.g., sanitary sewer overflows that reach waters of the commonwealth). See PADEP Presentation, slides 13–15. Although not required to move the Proposed Rule forward, PADEP requested WRAC’s support.
This is not the first time PADEP has attempted to revise the Existing Rule or offer clarifying guidance. In September 2023, the agency presented a draft revision to WRAC (that revision was updated by the Proposed Rule). Prior to that, PADEP published a draft technical guidance document (TGD) that offered guidance on notifying PADEP under the Existing Rule. See “Guidance on Notification Requirements for Spills, Discharges, and other Incidents of a Substance Causing or Threatening Pollution to Waters of the Commonwealth Under Pennsylvania’s Clean Streams Law,” No. 383-4200-003 (Oct. 16, 2021).
Although this TGD was never finalized, some of its elements, e.g., the factors for evaluating the risk that an unauthorized release constitutes or threatens pollution, are included in the Proposed Rule. In its recent meeting with WRAC, PADEP said it intends to revisit the October 2021 TGD when the Proposed Rule is finalized, including providing “updated practical examples of when reporting may or may not be required . . . .” PADEP Presentation, slide 16. Although PADEP has not yet indicated how it will proceed, if the agency decides to move forward with the Proposed Rule as written, the Proposed Rule will be published in the Pennsylvania Bulletin, which will begin a public comment period.
PADEP Publishes Proposed Erosion and Sediment Control General Permit for Oil and Gas Industry for Public Comment
On June 29, 2024, the Pennsylvania Department of Environmental Protection (PADEP) published notice in the Pennsylvania Bulletin that the proposed Erosion and Sediment Control General Permit for Earth Disturbance Associated with Oil and Gas Exploration, Production, Processing or Treatment Operations or Transmission Facilities (ESCGP-4) was available for public comment. 54 Pa. Bull. 3717 (June 29, 2024). The current ESCGP-3 is scheduled to expire on January 6, 2025. PADEP issues ESCGPs under the authority of the Pennsylvania Clean Streams Law, 35 Pa. Stat. §§ 691.1—.1001.
In the Pennsylvania Bulletin notice, PADEP stated that it was not proposing “significant changes” to the ESCGP-4 as compared to the ESCGP-3, but there are several noteworthy differences between the two permits. First, as a threshold matter, the ESCGP-4 contains a requirement that in discharges approved under the ESCGP-4 that exhibit a condition rendering it ineligible for coverage, “the permittee promptly shall take action to restore eligibility, to notify the Department in writing of the condition, and, if eligibility cannot be restored, to submit an individual erosion and sediment control permit (Individual E&S Permit) application to the Department.”
Next, the ESCGP-4 proposes to now require operators to submit a notice of intent (NOI) for coverage under the ESCGP-4 at least 60 days prior to the planned date for commencing any new discharge. The ESCGP-3 did not contain an NOI submission deadline. Further, PADEP has removed the expedited review option that was available under the ESCGP-4 for projects meeting specific criteria.
PADEP is also proposing new substantive requirements in the ESCGP-4. Under the ESCGP-3, weekly inspections of controls were required, as well as inspections following stormwater events. The ESCGP-4 adds an inspection requirement following “snowmelt sufficient to cause a discharge” and requires that inspections be documented using PADEP’s Chapter 102 Visual Site Inspection Report form (Doc. ID No. 3800-FM-BCW0271d) or a similar form that contains the same information. The ESCGP-4 also requires that the inspections be completed by “qualified personnel, trained and experienced in erosion and sediment control and post-construction stormwater management” and outlines requirements for such qualifications. Further, where the ESCGP-3 required “immediate” action to restore controls, the ESCGP-4 requires the initiation of repair or replacement within 24 hours of discovery of an issue.
Finally, the ESCGP-4 also proposes to require that any stormwater control measure (SCM) implemented by an operator that is not in PADEP’s Erosion and Sediment Pollution Control Manual (No. 363-2134-008) or the Water Quality Antidegradation Guidance (No. 391-0300-002) must be approved by PADEP. The ESCGP would also require confirmation testing for infiltration capacity of SCMs that must be reviewed by a licensed professional. Operators will also have to document the implementation of each structural SCM using a PADEP form and submit this documentation to PADEP within 30 days of completion of construction.
Comments on the ESCGP-4 were due by July 29, 2024.
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