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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