As previously reported on the Babst Calland Shale Energy Law Blog, the Pennsylvania Environmental Quality Board considered and approved the Pennsylvania Department of Environmental Protection’s (“PADEP”) proposed regulations regarding Subchapter C to Chapter 78 of Pennsylvania’s oil and gas regulations by a vote of 16 to 2 at its August 27, 2013 meeting. The proposed rulemaking will next be reviewed by the Commonwealth’s Attorney General’s Office and the Office of General Counsel. Following this review, the proposed rulemaking will be published in the Pennsylvania Bulletin for public review and comment. PADEP has recommended a 60-day public comment period and at least six public hearings to be held at various locations across the Commonwealth.
The Pennsylvania Department of Environmental Protection announced on Monday that the public comment period for proposed policy changes would be extended from July 22nd to August 27th because of a printing error in the Pennsylvania Bulletin that provided the incorrect e-mail address for comments. The draft policy would impact the permit review process by proposing procedures for public hearings, and for receiving and responding to public comments. All permits that are published in Pennsylvania’s official information outlet, the Pennsylvania Bulletin, will be affected by this proposed policy change, including permits for oil and natural gas wells.
In tomorrow’s Pennsylvania Bulletin, the Pennsylvania Department of Environmental Protection (PADEP) will issue a notice regarding the establishment of subcommittees by the Oil and Gas Technical Advisory Board (OGTAB) to discuss specific provisions at public meetings concerning “public resource protection, prehydraulic fracturing assessment, waste management at well sites and water supply restoration standards,” which are part of the PADEP’s draft proposed rulemaking under 25 Pa. Code Chapter 78, Subchapter C (“Environmental Protection Performance Standards”). These public meetings are scheduled for July 17-18 in Greensburg, August 14-15 in State College, and September 18-19 in Harrisburg.
Over this past week (May 28th through 31st), a review team assembled by the State Review of Oil & Natural Gas Environmental Regulations (“STRONGER”) has conducted an in-state review of Pennsylvania’s Oil and Gas Regulatory Program. The six person review team consisted of representatives from other state regulatory entities, the oil and gas industry, and public interest organizations. Pennsylvania’s program has been reviewed four times since 1990, the last being in 2010. Following the in-state review, the STRONGER review team members will complete a written report that will be published on STRONGER’s website. The written report must follow the established guidelines developed by STRONGER and adopted by the Interstate Oil and Gas Compact Commission.
On May 9, 2013, the U.S. EPA approved the PADEP’s 2012 Integrated Water Quality Monitoring and Assessment Report, a biennial “monitoring and assessment report characterizing the condition of Pennsylvania’s surface waters.” Included in this report is a list of Pennsylvania’s “impaired” surface waters that are not able to attain water quality standards, generally referred to as the 303(d) List. According to the U.S. EPA, PADEP’s 303(d) List includes 7,009 impaired waters, with 263 waters newly listed in the 2012 Report. The 2012 Report also “includes a change in the designation for a nearly 100-mile section of the main stem of the Susquehanna River from ‘unimpaired’ for aquatic life and recreational uses, to having insufficient water quality data to make an impairment determination.” Accordingly, PADEP is currently working with the Pennsylvania Fish and Boat Commission, the Susquehanna River Basin Commission, and the U.S. Geological Survey to complete a Susquehanna River Study this year to assess the quality of waters in the Susquehanna River and its tributaries.
On April 3, 2013, the PADEP issued a press release informing the public that it had released additional information and details regarding its ongoing comprehensive radiation study of oil and gas development in Pennsylvania, which was originally announced by PADEP on January 24, 2013. The additional information includes PADEP’s:
According to the press release, PADEP “will sample and analyze radioactivity levels of flowback waters, treatment solids, drill cuttings and drilling equipment, along with the transportation, storage and disposal of drilling wastes.” PADEP noted that it plans to begin sampling this month.
Pennsylvania Governor Tom Corbett announced today that Pennsylvania DEP Secretary Michael Krancer will resign from the DEP effective April 15. Mr. Krancer will return to private law practice at his former law firm, Blank Rome, LLP. No successor has been named, but the deputy chief of staff for the governor, E. Christopher Abruzzo, will serve as acting secretary after Mr. Krancer’s departure. In a press release from the DEP, Governor Corbett stated, “Secretary Krancer has been an invaluable member of our team and I am grateful for his service. His impressive efforts at DEP have taken the agency back to basics, protecting the environment and making the permitting process more efficient.”
As we previously reported in a mid-February post, a bill has been proposed “that would limit the treatment liability of entities that choose to utilize acid mine water (AMD) for hydraulic fracturing of oil/gas wells, or other industrial uses.” Senate Bill 411, sponsored by Senator Kasunic, has generated significant discussion in recent weeks by industry, the Commonwealth, and environmental activists. On March 13, 2013, the bill was tabled by the Senate for further review. Note that the Pennsylvania DEP issued a white paper in January of this year regarding the use of mine influenced water in drilling operations.
On February 12, 2013, the Pennsylvania Department of Environmental Protection released its 2011 emissions data from the unconventional drilling industry, which accounts for emissions from natural gas production and processing facilities from “57 operators of unconventional wells and 40 mid-stream operators of 150 compressor stations.” In its Fact Sheet, the DEP notes that there were significant reductions for a number of air contaminants from 2008 (the last year that the DEP completed an emissions inventory) to 2011, including nitrogen oxides and sulfur oxides. In a press release, the Marcellus Shale Coalition noted that according to this 2011 air emissions data, “Marcellus Shale development accounts for less than 3 percent of nitrogen oxide (NOx) and 1 percent of the total volatile organic compounds (VOC) emitted each year in the Commonwealth.” Pursuant to the Oil and Gas Act of 2012 (Act 13), owners and operators of these point sources must report these air emissions annually to the DEP by March 1 each year. 2012 air emission data is due to the PADEP on March 1, 2013.
A federal judge has granted a preliminary injunction in favor of Tennessee Gas Pipeline, LLC, precluding two environmental groups from bringing a permit challenge before the Pennsylvania Environmental Hearing Board, the Scranton Times-Tribune reports. Tennessee Gas filed a complaint and sought the injunction to block attempts by the environmental groups to seek review of permits associated with the company’s Northeast Upgrade Project. In an order issued February 5, 2013, District Judge Robert Mariani concluded that Natural Gas Act precluded the Environmental Hearing Board from reviewing permits issued by the Pennsylvania Department of Environmental Protection to Tennessee Gas under the Clean Water Act and the Clean Streams Law. The Delaware Riverkeeper Network and the Responsible Drilling Alliance brought an appeal before the Environmental Hearing Board in December 2012 seeking review of permits.
The court noted that two permits were issued under the Clean Water Act and one permit was issued under the state Clean Streams Law, but concluded that the three were interrelated such that review by a federal appellate court alone rather than two separate tribunals was appropriate. The court also concluded that the Natural Gas Act precluded the Environmental Hearing Board from reviewing the DEP’s permitting decisions prior to an appeal to a federal appellate court. The court’s analysis focused on the application of Section 717r(d)(1) of the Natural Gas Act, which provides that “the United States Court of Appeals for the circuit in which a facility . . is proposed to be constructed, expanded, or operated shall have original and exclusive jurisdiction over any civil action for the review of an order or action of a Federal agency … or state administrative agency acting pursuant to Federal law to issue, condition, or deny any permit … required under Federal law … .”
The Pennsylvania Department of Environmental Protection on Saturday issued notices in the Pennsylvania Bulletin announcing (1) that the DEP has finalized revisions to its GP-5, a general permit that pertains to emission limits at natural gas-fired engines and equipment at compressor stations and/or processing facilities; and (2) the DEP has proposed revisions to its “Plant Approval and Operating Permit Exemptions” for air emission sources, which includes a proposed exemption from the air quality plan approval process for air emission sources at well drilling sites. According to the DEP’s press release, the revisions to the GP-5 will “impose emissions limits that are 75 to 90 percent stricter than current limits for the largest, most common types of engines used at compressor stations.” The DEP will accept comments from the public regarding its proposed revisions to its “Plant Approval and Operating Permit Exemptions” through March 19, 2013.
As indicated in this article from January 29th, Andy Dinniman, state senator for Pennsylvania’s 19th Senatorial District, planned to introduce the Public Notification and Access to Information Act this week. Reportedly, the Act would require the posting of additional information about proposed gas pipeline projects on the Department of Environmental Protection’s website.
On January 25, 2013, the Pennsylvania Department of Environmental Protection issued a notice in the Pennsylvania Bulletin acknowledging that its general permit number WMGR128 had been rescinded on January 8, 2013. As first issued to Integrated Water Technologies, Inc,. on September 1, 2012, the WMGR128 general permit was titled (and intended to cover activities involving) the “Beneficial Use of Crystallized Sodium Chloride and Liquid Calcium Chloride from the Processing of Oil and Gas Liquid Waste”. According to the January 25, 2013 notice, DEP “determined that the notice provided to the public on April 9, 2011, advising the public of the Department’s receipt of the permit application and soliciting public comments, was not sufficiently detailed to provide the category of proposed beneficial use.” The DEP also stated in that notice that it intends to republish the WMGR128 application for public comment in the near future. Citizens for Pennsylvania’s Future, an environmental advocacy group, appealed the public notice regarding WMGR128 to the Pennsylvania Environmental Hearing Board last fall.
The Pennsylvania Department of Environmental Protection announced yesterday that it will undertake a study concerning naturally occurring levels of radioactivity in oil and gas drilling by-products. The study, which is expected to take 12 to 14 months, will sample flowback water, rock cuttings, treatment solids and sediments at well pads and wastewater-treatment and waste-disposal facilities. It will also examine pipes and well casings, storage tanks, treatment systems and trucks. DEP Secretary Michael Krancer called the study the “most comprehensive of its kind anywhere.” He also said that it will demonstrate “that states are best suited to responsibly oversee the natural gas exploration and production activities taking place in [their] respective borders.” The DEP retained Perma-Fix Environmental Services to assist in conducting the study, and the DEP announced that it will consult with “independent members of academia to peer review the project’s detailed study plan.” The Scranton Times-Tribune has more.
Pennsylvania Department of Environmental Protection Secretary Michael Krancer took issue with a recent claim that the state undercounted unconventional wells for impact-fee purposes in a letter to the author of the study, the Post-Gazette reports. In the letter to Joel Gehman, Secretary Krancer argued that the study’s authors “misunderstood or misrepresented” the provisions of Act 13. The report, published earlier this month, contended that Pennsylvania had undercounted the number of wells subject to impact fees by 15,000 to 25,000.