On September 21, 2016, the Susquehanna River Basin Commission (SRBC) published a Notice of Proposed Rulemaking/Notice of Public Hearings in the Federal Register. The proposed regulations would affect application requirements for project approval and renewal, standards for the review of projects (including consumptive use mitigation proposals), and procedures for hearings and enforcement actions. There are also several proposed definitional changes. For example, the SRBC has proposed a new definition of “production fluids”, a term used throughout SRBC regulations applicable to unconventional natural gas projects.
Supplemental information about the rulemaking is available on the SRBC’s webpage. The SRBC has also scheduled informational webinars in October (11th and 17th), and four public hearings on the rulemaking later this year. Comments are due on the proposed rulemaking on or before January 30, 2017.
In connection with the proposed rulemaking the SRBC also issued a draft Consumptive Use Mitigation Policy, which describes the SRBC’s interpretation of proposed changes to consumptive use mitigation requirements. Written comments on the policy are due by January 6, 2017.
On April 21, 2016, the Independent Regulatory Review Commission (IRRC) approved the Environmental Quality Board’s Chapter 78 (conventional wells) and Chapter 78a (unconventional wells) regulations by a vote of 3-2. Vice Chairman Mizner, in making a motion to disapprove the regulation, noted that the Department of Environmental Protection did not:
- provide enough information on the cost of the regulations;
- meet its burden to show that the revisions as applied to conventional operations are necessary;
- conduct the required flexibility analysis for small businesses;
- adequately consult with the Conventional Oil and Gas Advisory Committee or the Oil and Gas Technical Advisory Board; or
- develop a consensus on the regulations with industry.
The motion to disapprove the regulation failed by a vote of 3-2, followed by the motion to approve the regulation. Commissioners voting to approve the regulation noted that consensus on the regulation was likely impossible to achieve but that the Department had acted earnestly to develop necessary regulations for an evolving industry and that current regulations are not adequate.
Both the House and Senate Environmental Resources and Energy Committees previously voted to disapprove the regulations. IRRC’s approval begins a 14-day window in which the legislative committees may report to the House or Senate a concurrent resolution barring the revisions. If a resolution adopted by the General Assembly is not vetoed, or if the Governor’s veto is overridden, the Environmental Quality Board is barred from promulgating the final regulations. The Attorney General will conduct a review of the regulation as to form and legality before the regulation may be published in the Pennsylvania Bulletin as final. Publication of the rule as final could occur in June or July of 2016, becoming effective immediately on the day of publication.
On March 17, 2016, the U.S. Department of Transportation’s Pipeline and Hazardous Materials Safety Administration (PHMSA) issued a pre-publication version of its long-awaited notice of proposed rulemaking (NPRM) for gas transmission and gathering lines. The 549-page NPRM has been issued in response to issues raised in National Transportation Safety Board recommendations, congressional mandates, and Government Accountability Office reports. PHMSA has provided a short, 60-day comment period, which will be a challenge to those developing comments on a proposed rule of this complexity and length. For more information, read our Pipeline Safety Alert.
On February 3, 2016, the Pennsylvania Environmental Quality Board (EQB) adopted significant revisions to the Commonwealth’s oil and natural gas regulations by a vote of 15 to 4. EQB’s vote formally splits current Chapter 78 (Oil and Gas Wells) into new Chapter 78 (Conventional Oil and Gas Wells) and Chapter 78a (Unconventional Wells). Most of the significant revisions in the rulemaking package address Subchapter C (Environmental Protection Performance Standards), but the final rulemaking amends other Subchapters within Chapter 78 as well. Specifically, the revisions would alter or create new obligations for permit applications and renewals, water supply replacement, predrilling surveys and reviews, erosion and sediment control, water management plans, emergency response plans, wastewater management, disposal of drill cuttings, site restoration, spills and releases, and production reporting. In addition, the rulemaking includes 25 different requirements for electronic applications, electronic notifications, and electronic submittals.
Several amendments were offered from the floor but defeated.
If the rulemaking successfully completes review at the Pennsylvania Independent Regulatory Review Commission, the appropriate legislative standing committees, and the Attorney General’s Office, the revisions will become effective upon publication in the Pennsylvania Bulletin.
Today the U.S. Environmental Protection Agency (EPA) announced that it will host three public hearings in September regarding proposed Clean Air Act rulemaking actions that will affect the oil and gas industry. Two hearings will be held in Denver and Dallas on the same day, September 23, 2015. A third hearing is scheduled to be held on September 29, 2015, in Pittsburgh. The hearing in Pittsburgh will take place at the William S. Moorhead Federal Building downtown. For additional information about EPA’s proposed rules, check out our Administrative Watch: EPA Announces Clean Air Act Proposals Targeting the Oil and Natural Gas Sector.
Today the U.S. Environmental Protection Agency (EPA) formally announced its highly-anticipated proposal to regulate methane emissions from the oil and natural gas sector. Specifically, EPA is proposing to amend the New Source Performance Standards (NSPS) rule for the sector, NSPS Subpart OOOO, to include standards for reducing methane as well as volatile organic compound (VOC) emissions from sources located across the oil and natural gas source category (i.e., production, processing, transmission and storage). This proposal is part of the agency’s broader strategy for reducing emissions of ground level ozone-forming pollutants from the oil and gas sector. Public comments will be accepted for 60 days following publication in the Federal Register, and EPA is planning to host public hearings on the rulemaking. In conjunction with today’s announcement regarding the proposed NSPS revisions, EPA also announced proposed guidelines for states to follow in order to reduce VOC emissions from existing oil and gas sources located in areas where the ambient air quality does not meet certain thresholds with respect to ozone.
The Pennsylvania Department of Environmental Protection (DEP) recently announced the draft final revisions to the “Environmental Protection Performance Standards at Oil and Gas Well Sites” rulemaking (Chapters 78 and 78a). Following the most recent round of public comment, DEP decided not to include the provisions for noise mitigation and centralized storage tanks for wastewater in the final regulations. DEP indicated that a separate process is more appropriate for noise mitigation due to the complex nature of noise mitigation. With regard to centralized storage tanks, DEP decided it would continue to regulate these facilities under the residual waste regulations. The amendments will be discussed at the upcoming meetings of the Conventional Oil and Gas Advisory Committee and, Oil and Gas Technical Advisory Board in late August and early September, respectively.
On July 9, 2015, Governor Tomblin announced the formation and appointment of members to the West Virginia Commission on Oil and Natural Gas Industry Safety. Publicized during Governor Tomblin’s State of the State address in early 2015, the Commission is charged with “reviewing current federal and state oil and natural gas workplace safety regulations and provid[ing] recommendations for improving workplace safety” according to the State Journal. The Commission is comprised of secretaries of the DEP, Dept. of Commerce, Dept. of Transportation, and Public Safety, among others, as well as members of the natural gas industry and labor representatives. The Commission is to issue its first report on or about November 16, 2015.
This week the U.S. Environmental Protection Agency (EPA) sent a highly-anticipated proposed rule to the White House Office of Management and Budget (OMB) for interagency review that would address methane emissions in the oil and natural gas sector. Earlier this year, EPA announced its plan to initiate such a rulemaking as part of its methane reduction strategy. A second proposed rule was also reportedly sent to OMB for review this week – EPA is working on new definitions for certain regulatory terms associated with permitting sources in the oil and gas industry, in order to assist permitting agencies in making major stationary source determinations. Both of the proposed rules are expected to be published in the Federal Register in August.
Today the U.S. Environmental Protection Agency (EPA) published a proposed rule under the Clean Water Act that would prohibit the discharge of unconventional oil and gas extraction wastewaters to publicly owned treatment works (POTWs). The rule would apply to wastewater associated with production, field exploration, drilling, well completion and well treatment for unconventional operations, but would not apply to wastewater produced by conventional operations. According to EPA, the industry does not currently discharge unconventional wastewater to POTWs and this rule “will ensure that such current industry best practice is maintained over time.” The rule would be immediately effective on the date of publication of the final rule. Comments on the proposed rule must be received on or before June 8, 2015.
The U.S. Environmental Protection Agency (USEPA) has, for a second time, extended the public comment deadline associated with its proposed rule to redefine “waters of the United States” and related terms for purposes of various federal Clean Water Act programs. USEPA and the U.S. Army Corps of Engineers initiated the joint rulemaking effort this past spring. Comments are now due on Friday, November 14, 2014. Additional information is available at http://www2.epa.gov/uswaters.
The Ohio Department of Natural Resources has opened the comment period on its draft rules for the construction of horizontal well sites. All interested parties may submit comments in writing by the close-of-business on Monday, October 06, 2014 to dogrm.rules@dnr.ohio.gov.
The West Virginia Department of Environmental Protection (WVDEP) has released a draft “Interpretative Rule” to implement certain inspection, certification, and spill prevention – response plan provisions of the Aboveground Storage Tank Act (AST Act) enacted earlier this year. The AST Act requires that all qualifying aboveground tanks (generally those with a capacity of 1,320 gallons or more) be inspected and certified as suitable for use by January 1, 2015. Owners of such tanks must also submit a “Spill Prevention Response Plan” to WVDEP by December 3, 2014. Read our Administrative Watch for more information about the rulemaking and the AST Act.
On September 9, the U.S. House of Representatives voted to pass a bill introduced in response to the ‘Waters of the United States’ Proposed Rule that was prepared jointly by the U.S. Army Corps of Engineers (USACE) and U.S. Environmental Protection Agency (USEPA) and published in April 2014. The bill, known as the “Waters of the United States Regulatory Overreach Protection Act of 2014” (H.R. 5078), would prohibit USEPA and USACE from “developing, finalizing, adopting, implementing, applying, administering, or enforcing” the proposed rule. On September 8, the White House announced its objections to the bill, including concerns that H.R. 5078 would “derail” efforts to clarify the scope of the Clean Water Act. The announcement also noted that if the President were presented with H.R. 5078, his senior advisors would recommend that he veto the bill. Notwithstanding H.R. 5078, the public comment deadline for the proposed rule is fast-approaching. Comments are due to USEPA/USACE by Monday, October 20, 2014.
The federal Bureau of Land Management (BLM) has taken another step towards finalizing updated regulations for hydraulic fracturing on federal and Indian lands, by sending a revised final rule to the White House Office of Management and Budget (OMB) for review. The revised rule was published in the Federal Register in May 2013. During the subsequent public comment period, BLM received a large number of comments on the rule from both public interest organizations and industry groups. Any revisions will not become public until OMB completes its review and the final rule is published, perhaps by late fall of this year. The rule would apply to hydraulic fracturing operations conducted on the approximately 700 million acres of federal mineral estate and 56 million acres of Indian mineral estate overseen by BLM.