Friday, May 4, 2018

Global Shale Law Compendium: Shale Law Governance in Pennsylvania – Regulations from 2011 to 2014

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 a prior article, we reviewed shale-related regulations that were adopted from 2008 to 2010. This time, the Center will address shale-related regulations promulgated from 2011 to 2014 and later in another article, we will address the ones adopted from 2015 to 2018.

·       Regulatory activity in 2011

EQB published a notice of final rulemaking regarding amendments to Chapter 78. The regulations required semiannual production reporting of Marcellus Shale wells in an electronic format, which were required to be made accessible on DEP’s website. In addition, regulations regarding well casing and cementing were strengthened for the purpose of reducing gas migration issues. See PA Bulletin, Vol. 41, No. 6, February 5, 2011, pp. 805 et seq.

On March 26, 2011, DEP announced the availability of Final General Plan Approval and/or General Operating Permit for Natural Gas, Coal Bed Methane or Gob Gas Production or Recovery Facilities (BAQ-GPA/GP-5). See PA Bulletin, Vol. 41, No. 13, March 26, 2011, pp. 1700.

·       Regulatory activity in 2012

On January 28, 2012, DEP notified owners and operators of facilities involved in unconventional natural gas activities that it would collect and gather an inventory of air quality information. DEP specified that source reports and annual emissions inventories must be filed by March 1 of each year for operations during the preceding calendar year. See PA Bulletin, Vol. 42, No. 4, January 28, 2012, pp. 620.

On March 3, 2012, DEP proposed to review General Plan Approval and/or Operating Permit (BAQ-GPA/GP-5 or General Permit) for Natural Gas Production and/or Processing Facilities. The DEP explained that this General Permit “has been expanded” to cover further air contamination sources stemming from natural gas production and/or processing facilities. See PA Bulletin, Vol. 42, No. 9, March 3, 2012, pp. 1187.

On July 7, 2012, EQB proposed another triennial review of the Commonwealth’s water quality standards clarifying specific water quality criteria and updating antidegradation requirements’ cross references and citations from Chapter 92 to Chapter 92a. See PA Bulletin, Vol. 42, No. 27, July 7, 2012, pp. 4367 et seq.

DEP announced on December 29, 2012, the availability of Final Erosion and Sediment Control General Permit-2 for Earth Disturbance resulting from oil and gas exploration, production, processing or treatment operations or transmission facilities (ESCGP-2). DEP stated that it would continue to accept ESCGP-1 applications until January 28, 2013. See PA Bulletin, Vol. 42. No. 52, December 29, 2012, pp. 7863 et seq.

·       Regulatory activity in 2013

On January 26, 2013, EQB filed a notice of final rulemaking regarding amendments to sections of Chapter 78 relating to definitions, control and disposal planning, and emergency response for unconventional well sites. More specifically, the amendments provide for new definitions for “unconventional formation” and “unconventional well” and provide for further requirements aimed to improve emergency response planning. The amendments require operators to use the concepts of the National Incident Management System to the fullest extent possible. See PA Bulletin, Vol. 43, No. 4, January 26, 2013, pp. 526 et seq.

On February 2, 2013, DEP announced the availability of Final General Plan Approval and/or General Operating Permit applying to the construction, operation and modification of new and existing natural gas compression and/or processing facilities. The BAQ-GPA/GP-5 provide for emission limitation and Best Available Technology (BAT) requirements.

On February 2, 2013, DEP also proposed changes to the technical guidance document for both exemption Category No. 33 relating to compressed natural gas fueling and Category No. 38 relating to oil and gas exploration, development, production facilities and associated equipment. See PA Bulletin, Vol. 43, No.4, February 2, 2013, pp. 740 & pp. 742.

On February 16, 2013, EQB filed a notice of final rulemaking relating to Chapter 105 amendments. The final rulemaking planned on updating existing fees and creating additional fees for DEP performed-activities. As a result of revised Chapter 105 regulations, the DEP proposed to amend Chapter 105 Water Obstruction and Encroachment General Permits as well as 401 Water Quality Certification for consistency purposes. See PA Bulletin, Vol. 43, No. 4, February 16, 2013, pp. 967 et seq. & pp. 1049.

On July 6, 2013, DEP issued a notice of final rulemaking modifying all Chapter 105 Water Obstruction and Encroachment General Permits. The notice stated that the changes regarding these General Permits only entail the elimination of fee requirements. See PA Bulletin, Vol. 43. No. 27, July 6, 2013, pp. 3775.

EQB issued a notice of final rulemaking on July 20, 2013, amending Chapter 93 relating to water quality standards as a result of the mandatory triennial review pursuant to section 303(c)(1) of the Clean Water Act. As part of the amendments, the EQB withdrew some proposed specific water quality criteria, including chlorides, sulfates, and molybdenum. See PA Bulletin, Vol. 43, No. 29, July 20, 2013, pp. 4080 et seq.

On September 14, 2013, EQB proposed to amend Chapter 78 oil and gas permit fees, and more specifically for the purpose of establishing increased flat fees for unconventional well permits. The revenue generated from these fees would be distributed for the benefit of DEP’s Information Technology projects. The notice stated that “this investment in technology will yield efficiencies for both the Department and the regulated community in terms of more predictable and timely permit issuance, more effective site inspections, increased availability of staff for compliance assistance, and more streamlined reporting to and communication with the [DEP].” See PA Bulletin, Vol. 43, No. 37, September 14, 2013, pp. 5457 et seq.  

On December 14, 2013, EQB proposed to update the Chapter 78 sections relating to surface activities associated with the development of oil and gas wells, including requirements practices for unconventional wells and horizontal directional drilling, and requirements addressing impacts to public resources, identifying and monitoring orphaned and abandoned wells during hydraulic fracturing activities. See PA Bulletin, Vol. 43, No. 50, December 14, 2013, pp. 7377 et seq. 

·       Regulatory activity in 2014

On March 1, 2014, DEP notified all owners and operators engaged in the business of coal bed methane gas processing in Pennsylvania to prepare and submit air emission source reports on or before April 30, 2014, pursuant to 25 Pa Code § 135.3. DEP specified that such reports would be expected thereafter on March 1 of each year for operations during the preceding calendar year. See PA Bulletin, Vol. 44, No. 9, March 1, 2014, pp. 1291 et seq.

On June 14, 2014, EQB amended sections of Chapter 78 relating to oil and gas permit fees. The amendments went forward with the increases in fees for unconventional well permits. See PA Bulletin, Vol. 44, No. 24, June 14, 2014, pp. 3517 et seq.

On November 15, 2014, DEP proposed to review the existing General Plan Approval and/or General Operating Permit (BAQ-GPA/GP-5 or General Permit) for Natural Gas Compression and/or Processing Facilities issued in February 2013. The proposed amendments encompassed definition changes, terms clarification, the elimination of the applicability threshold requirement for greenhouse gases, and the addition of an annual compliance certification requirement, among other things. See PA Bulletin, Vol. 44, No. 46, November 15, 2014, pp. 7243. 


On December 13, 2014, DEP notified all owners and operators engaged in certain natural gas related activities in Pennsylvania to prepare and submit air emission source reports to DEP no later than March 1, 2015. DEP stated that subsequent reports and annual emissions inventories are expected by March 1 of each year for operations carried out during the preceding calendar year. See PA Bulletin, Vol. 44, No. 44, No. 50, December 13, 2014, pp. 7789.

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