Written by Chloe Marie –
Research Fellow
The Global Shale Law
Compendium series addresses legal developments and other issues related to the
governance of shale oil and gas activities in various countries and regions of
the world. In this article, we will focus on the legal, policy, and governance
issues related to shale gas development in the United States, and more
specifically in the state of Pennsylvania.
In
prior articles, we reviewed statutes applicable to unconventional oil and gas
development that were enacted in Pennsylvania during the time period from
2010 through 2012, and from
2013 to 2016, as well as fiscal
legislation adopted from 2009 to 2017. This article will address
shale-related regulations that were promulgated from 2008 to 2010. In two subsequent
articles, we will address regulations promulgated from 2011 to 2014, and from
2015 to 2018.
·
Regulatory
activity in 2008
On
January 12, 2008, the Environmental Quality Board (EQB) proposed to amend
Chapter 93 relating to water quality standards as part of the federally-required
triennial review of water quality standards under the Federal Clean Water Act.
The proposed amendments called for a merger of sections of Chapter 16 relating
to water quality toxics management strategy, including criteria tables, into
Chapter 93 in order to reinforce the Commonwealth’s water quality standards. In
addition, the amendments involved changes in definitions as well as
specification and clarification of the water quality criteria in general. See PA Bulletin, Vol. 38, No. 2,
January 12, 2008, pp. 236 et seq.
On April 12, 2008, the Department of
Environmental Protection (DEP) announced the availability of the Erosion and
Sediment Control General Permit (ESCGP-1) for earth disturbance activities
resulting from oil and gas exploration, production, processing or treatment
operations or transmission facilities. The availability notice provided that
the ESCGP-1 was set to expire on April 12, 2013. See PA Bulletin Vol. 38, No. 15, April
12, 2008, pp. 1781
In
a notice dated October 11, 2008, DEP introduced changes to the well permit
application for Marcellus Shale gas well development. DEP explained that, as of
the issuance date of this notice, permit applicants were required to use the
revised “Application Addendum for Marcellus Shale Gas Well Development” in
addition to the conventional well permit application. See PA Bulletin, Vol. 38, No. 41,
October 11, 2008, pp. 5720
In
an order dated November 15, 2008, the EQB added a new Chapter 110 entitled
water resources planning as mandated by the Water Resources Planning Act (27
Pa. C.S. Chapter 31). This new chapter provides regulations for water
withdrawal and use registration, monitoring, recordkeeping and reporting
requirements intended to further enhance water resources planning. See PA Bulletin, Vol. 38, No. 46,
November 15, 2008, pp. 6266 et seq.
·
Regulatory
activity in 2009
On
January 31, 2009, DEP provided additional modifications to the existing well
permit application for Marcellus Shale gas well development due to a recent
revision of the Application Addendum, which provide further explanation of
impoundment requirements and support information. See PA Bulletin Vol. 39, No. 5, January
31, 2009, pp. 641
On
February 7, 2009, DEP issued a notice of intent to implement an NPDES General
Permit for Stormwater Associated with Mining Activities (BMR GP-104). DEP
stated that this General Permit would apply to earth disturbance activities
resulting from coal and noncoal mining operations, provided that the discharge
associated with such operations merely is composed of stormwater. See PA Bulletin, Vol. 39, No. 6,
February 7, 2009, pp. 734
In
a notice of proposed rulemaking dated February 14, 2009, EQB proposed to add provisions
requiring a new fee schedule for the administration of oil and gas well permits
in Chapter 78, Subchapter B. EQB justified these amendments by an increase in
the number of permit applications, mostly due to the development of Marcellus
shale in Pennsylvania. EQB stated that a “regulatory fee increase is needed to
provide the [DEP] with the resources to perform the additional work associated
with the review of Marcellus Shale gas well permit applications and with the
oversight of any permits that are issued.” See PA Bulletin, Vol. 39, No. 7,
February 14, 2009, pp. 838 et seq.
On
April 18, 2009, EQB issued a notice of final rulemaking concerning the
establishment of a new Marcellus Shale permit fee. The final rulemaking
provided for a base permit fee in the amount of $900 with an additional $100
for every 500 feet the well bore extends beyond 1,500 feet. See PA Bulletin, Vol. 39, No. 16, April
18, 2009, pp. 1982 et seq.
On
May 16, 2009, DEP gave notice of the adoption of amendments of Chapter 93
relating to water quality standards. The amendments included an update of the
water quality criteria, addition of new definitions, and the removal of the
water quality criterion for molybdenum (Mo). See PA Bulletin, Vol. 39, No. 20, May
16, 2009, pp. 2523
In
a notice of proposed rulemaking dated August 29, 2009, EQB proposed to amend
Chapter 102 relating to erosion and sediment control and stormwater management
in order to provide new erosion and sediment permitting requirements for oil
and gas activities associated with earth disturbance. See PA Bulletin, Vol. 39, No. 35,
August 29, 2009, pp. 5131 et seq.
On
October 24, 2009, EQB announced modifications in the final-form rulemaking
regarding Chapter 78 amendments. The modifications include additional
definitions for Marcellus Shale well, non-vertical well and vertical well and
supplemental information relating to Marcellus Shale well permit fee. See PA Bulletin, Vol. 39, No. 43,
October 24, 2009, pp. 6232 et seq.
EQB
issued a proposed rulemaking notice on November 7, 2009, proposing to amend
Chapter 95 relating to wastewater treatment requirements. The proposed
amendments prohibited new discharges of wastewaters containing High Total
Dissolved Solids (TDS) resulting from any direct source or site of fracturing,
production, field exploration, drilling, or well completion; however treated
discharges may be allowed based on specific requirements. See PA Bulletin, Vol. 39, No. 45,
November 7, 2009, pp. 6467
·
Regulatory
activity in 2010
In
an advanced notice of proposed rulemaking dated January 30, 2010, DEP sought
public comments on proposed amendments of Chapter 78 relating to oil and gas
wells. DEP introduced further measures to update and modify existing
performance testing and design requirements regarding the drilling, casing,
cementing, testing, monitoring and plugging of oil and gas wells, and the
protection of water supplies. See PA Bulletin, Vol. 40, No. 5,
January 30, 2010, pp. 623
On
February 13, 2010, EQB proposed to eliminate 25 Pa. Code Chapter 92 relating to
NPDES permitting, monitoring and compliance and replace it with a new Chapter
92a for reorganization purposes. This reorganization was justified by a need to
be consistent with Federal regulations set out in 40 CFR Part 122 relating to
EPA administered permit programs and NPDES. More precisely, the amendments
included a new NPDES permit fee structure, among other things, and provisions
regarding exclusion from permit requirements for oil and gas activities were
meant to be deleted. See PA Bulletin, Vol. 40, No. 7,
February 13, 2010, pp. 847
On
July 10, 2010, DEP issued a formal notice of proposed rulemaking to amend
Chapter 78 following receipt of public comments that resulted from the advanced
notice published in January 2010. Additional issues were raised about Marcellus
shale gas development and, in this regard, DEP proposed to clarify operator responsibilities
and requirements pertaining to the construction and operation of wells for
water protection purposes. The proposed regulation stated that “if the existing
supply did not meet safe drinking water standards, the operator shall supply a
water source that is as good as the preexisting supply.” See PA Bulletin, Vol. 40, No. 28, July
10, 2010, pp. 3845 et seq.
On
September 18, 2010, DEP proposed to review the General Plan Approval and
Operating Permit BAQ-GPA/GP-5 for Natural Gas, Coal Bed Methane or Gob Gas
Production or Recovery Facilities. The amendments provided changes in emissions
limits for air pollution sources, permitting requirements, fee schedule, and
compliance with new source performance standards and national standards for
hazardous air pollutants. See PA Bulletin, Vol. 40, No. 38,
September 18, 2010, pp. 5387
On
October 9, 2010, EQB published a notice of final rulemaking eliminating Chapter
92 and relocating it within Chapter 92a. The final rulemaking amendments
include the revision of “Best Management Practices” definition, further
treatment requirements regarding new or changed water quality standards, and
elimination of references to the permits-by-rule, among other things. See PA Bulletin, Vol. 40, No. 41,
October 9, 2010, pp. 5767 et seq.
On
October 16, 2010, DEP announced the availability of Final NPDES General Permit
for Stormwater Associated with Mining Activities (BMR GP-104). This General
Permit applies to earth disturbance activity of 1 acre or more resulting from
coal and noncoal mining operations as long as the discharge triggering earth
disturbance merely is composed of stormwater.
See PA Bulletin, Vol. 40, No. 42,
October 16, 2010, pp. 6040 et seq.
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