Pennsylvania’s New Fracking Regulations: Additional Requirements for Surface Water Protection and New Limitations on Wastewater Storage, Processing and Disposal
On October 8, 2016, the Pennsylvania Environmental Quality Board published a comprehensive set of new rules regulating hydraulic fracturing operations in the state. Discussion of these rules began in 2011 and resulted in significant opposition--including resistance at the Pennsylvania legislature. Pennsylvania’s rules governing above-ground operations at oil and gas well sites had not been updated since 2001, prior to the expansion of hydraulic fracturing in the state. Under the regime implemented by the new rules, Pennsylvania has bifurcated its regulation of conventional and unconventional wells; the regulations governing conventional operations appear at 25 Pa. Code Chapter 78, while the regulations governing unconventional operations appear at 25 Pa. Code Chapter 78a. Many fear that the new rules will stifle energy production at a time when production has already slowed due to uncertain commodity prices, while others argue that the rules provide changes to protect both public health and the state’s natural resources.
Increased surface water protections at unconventional wells
The new rules aim to enhance surface water protections by requiring that if the proposed limit of disturbance associated with an unconventional well is within 100 feet of any watercourse, any high quality or exceptional value body of water, or any wetland greater than 1 acre in size, the permit applicant must demonstrate that the well site location will protect the watercourse or bodies of water. The new regulations also codify anti-degradation requirements for unconventional operations located in a special protection watershed. Additionally, while unconventional well operators were already required to replace or restore a water supply that was degraded by oil and gas development, the new rules specify that the restored or replaced supplies must meet the standards in the Pennsylvania Safe Drinking Water Act or be comparable to the quality of the water supply before it was affected if that water was of a higher quality than the standards require.
The rules also create enhanced requirements applicable to unconventional operators for reporting and remediating spills and releases of regulated substances. A spill or release must be reported to the Pennsylvania Department of Environmental Protection (“PADEP”) when: (1) the spill or release causes or threatens pollution of state waters; or (2) a spill or release of 5 gallons or more of a regulated substance over a 24-hour period is not completely contained by secondary containment. The operator or other responsible party must then remediate a release in accordance with one of two options, depending on the nature of the spill. Commenters expressed concern with both the remediation timeline under the new rules and the anticipated expense of complying with the required remediation options.
Increased regulation of on-site storage, processing, and disposal at unconventional wells
Under the new rules, temporary aboveground storage structures of greater than 20,000 gallon capacity must be approved by PADEP prior to being used. PADEP must be given notice prior to the installation of these structures at an unconventional well site, and the structures must be removed within 9 months of drilling completion.
The rules also prohibit the use of open top structures or pits to store brine and other production fluids at an unconventional well site. Existing pits or structures used for this purpose must be reported to PADEP by April 8, 2017, and properly closed by October 10, 2017. The rules further require that tanks used to store production fluids at unconventional well sites must be equipped with secondary containment and must satisfy certain performance and technical standards. Heightened standards also apply to the use of underground or partially buried storage tanks to store brine or other fluids produced during the life of an unconventional well.
Finally, the rules codify for unconventional well sites PADEP’s current approval process for onsite oil and gas wastewater processing. Under the rules, unconventional well operators may process fluids generated by oil and gas wells at the site where the fluids were generated or at the site where the fluids will be beneficially used for permitted oil and gas activities with approval from PADEP. An operator processing fluids onsite must develop a radiation protection action plan and procedures for training, notification, recordkeeping and reporting to be implemented at the site. These plans do not require PADEP approval, and the same plan may be used at multiple well sites if the conditions are similar and notification is provided in advance to PADEP.
The new rules became effective immediately upon publication, but industry representatives have already indicated that they expect the rules to be challenged in state court.