PennFuture, FracTracker team up on GIS map showing shale gas development on public lands

PennFuture and FracTracker Alliance have created a unique GIS map that enables the public to investigate how shale gas development is changing the face of our public lands. The map shows, in one place:

• Pennsylvania’s State Forests, Parks and Game Lands;
• State Forest tracts containing active oil and gas leases;
• State Forest areas where the oil and gas rights have been “severed” from the surface lands and are owned by third parties;
• State Forest lands that are to be protected for recreational use under the federal Land and Water Conservation Fund Act;
• The location of unconventional shale gas wells that have been drilled on State Forest and State Game Lands; and
• The boundaries of watersheds that contain one or more High Quality or Exceptional Value streams.
  
  "The Commonwealth's award-winning state parks and state forests are special places that Pennsylvania citizens have long cherished," said John Norbeck, acting president and CEO of PennFuture. "We hope this map will be a useful tool for all Pennsylvanians in planning their recreational, educational and advocacy activities."
  
  More on this project at our guest post this week on the FracTracker website.
  
  Mark Szybist is staff attorney for PennFuture and is based in Wilkes-Barre.
  
  

Impoundments are the pits (Part I)

According to the non-profit mapping organization SkyTruth, Pennsylvania is home to 529 impoundments that store fluids related to oil and gas production activities. StateImpact recently reported that the Pennsylvania Department of Environmental Protection (DEP) does not know how many of these impoundments store wastewater and how many store "fresh water" (a category of water that, as this post will explain, is less fresh than you might hope).

Given recent incidents involving groundwater pollution from several Range Resources impoundments in Washington County and an EQT impoundment in Tioga County, the lack of an inventory of Pennsylvania's impoundments is cause for concern. In fact, there are more than a few reasons to worry about the use of impoundments for oil and gas development in Pennsylvania. This post will summarize the different types of impoundments currently in use in, and explain how each is regulated (or not regulated). Part II of this post, to follow at a later date, will discuss how pending DEP regulatory revisions could - and should - change the status quo for impoundments.

In general, there are four kinds of impoundments that oil and gas operators can use in Pennsylvania to store fluids used in or generated by production activities: (1) wastewater "pits" that serve specific well sites, (2) centralized wastewater impoundments that serve multiple well sites, (3) wastewater impoundments used in off-well-site processing operations, and (4) "fresh water" impoundments.

Well Site "Pits"

"Pits" are well-site impoundments used to store drilling and fracking wastes, a category of waste that, incredibly if not surprisingly, has been exempted from federal hazardous waste regulations. By grace of this exemption, such waste is regulated under the Pennsylvania Solid Waste Management Act (SWMA) as "residual waste." Although the word "pit" suggests a structure dug into the ground, "pits" can also be above-ground structures with raised embankments. "Pits" are regulated mainly under a set of standards in 25 Pa. Code 78.56 that were last updated in 2001 and are not adequate to protect groundwater from the contaminants in production wastes like "flowback" fluids. For example, the standards do not require groundwater monitoring wells, double-liners, or any form of leak detection. Section 3273.1 of Act 13 exempts well-site "pits" from permitting requirements under the SWMA or public notice requirements if a well has been permitted on the site. Consequently, the only permits required for "pits" are stormwater control authorizations (under the general permit ESCGP-2) for the earth disturbance. The leaky Tioga County EQT impoundment was a well-site "pit." The DEP does not maintain a comprehensive list of these impoundments.

Centralized Wastewater Impoundments

"Centralized impoundments" or "centralized impoundment dams" are wastewater impoundments that serve multiple well sites. Whether built at a well site or at an entirely separate location, centralized impoundments are considered by the DEP to be located "on" well sites for regulatory purposes, a fiction that the DEP uses to exempt these impoundments from its residual waste regulations at 25 Pa. Code 299.141-145. (Under 25 Pa. Code 287.2(g), impoundments "located on the well site" are regulated under oil and gas regulations instead of residual waste regulations). The DEP does, however, recognize that centralized impoundments are "dams" under the Pennsylvania Dam Safety and Encroachments Act (DSEA), and so requires individual permits for them, as well as double-liners, leak detection systems, groundwater monitoring, and compliance with the DSEA regulations at 25 Pa. Code Chapter 105.

Since 2008, the DEP has issued approximately 30 permits for centralized impoundments. Most of the Range Resources impoundments that leaked in Washington County were centralized impoundments (albeit ones apparently built to meet design and construction standards that the DEP has since updated).

Wastewater Impoundments Used in Off-Site Processing Operations

A third category of wastewater impoundments are impoundments owned and operated by companies that are not drillers - e.g., companies that have gotten into the business of storing, treating, and recycling wastewater from the oil and gas industry. These impoundments are regulated under the DEP's residual waste regulations and the DSEA regulations at 25 Pa. Code Chapter 105.

"Fresh Water" Impoundments 

There are two kinds of impoundments used to store "fresh water" for oil and gas operations in Pennsylvania: those that are "jurisdictional" to the DSEA (i.e., subject to regulation pursuant to section 693.4 of the DSEA) and those that are "nonjurisdictional" (i.e., not regulated under the DSEA). Fresh water impoundments are jurisdictional if their capacity exceeds 50 acre-feet (a little more than 16 million gallons), the depth of water at maximum capacity exceeds 15 feet, or the escape of water "may result in air, water or land pollution, or may result in danger to persons or property." Fresh water impoundments that do not exceed the acre-feet and depth criteria and are deemed not to pose pollutional and safety threats are nonjurisdictional. 

Jurisdictional fresh water impoundments require permits under the DSEA and must comply with the design and construction standards at 25 Pa. Code Chapter 105. Nonjurisdictional impoundments need only stormwater construction permits and currently are not subject to regulatory standards. (In lieu of regulatory standards, the DEP has "recommended standards" for nonjurisdictional impoundments). Fresh water impoundments of both kinds are sometimes co-located with well sites and sometimes separately located. 

A DEP residual waste general permit known as WMGR123 allows processed gas well wastewater to be stored in fresh water impoundments if it meets certain pollutant limits (in which case it is considered "de-wasted" and thus "fresh" for these purposes). WMGR123  does not, however, require ongoing testing of the stored water to determine whether evaporation and stratification result in those limits being exceeded. Nor does the DEP  consider nonjurisdictional fresh water impoundments that store "de-wasted" water to be impoundments that "may result in air, water or land pollution, or may result in danger to persons or property." The DEP appears to have a list of jurisdictional fresh water impoundments, but not of nonjurisdictional impoundments.

Mark Szybist is staff attorney for PennFuture and is based in Wilkes-Barre. Part II of this blog will be posted later this month or in January 2015.

Passionate supporters come out in the name of stronger oil and gas regulations

It was encouraging to see so many people come out to participate in the Department of Environmental Protection’s (DEP) public hearing about its proposed Chapter 78 regulations regarding oil and gas wells this past Thursday at West Chester University.

Public participation in government decisions is one of the purest and most important features of democracy, and environmental advocates made it clear that they understand the importance of fulfilling their role as educated and informed citizens.

The public hearing at West Chester University was well attended, and the vast majority of speakers spoke in favor of stronger environmental protection. In addition to members of the public and environmental advocacy groups such as PennFuture, Delaware Riverkeeper Network, and the Clean Air Council, a number of elected officials took the microphone to support stronger regulations. Among them was West Chester’s mayor, Carolyn Comitta, who testified that it was important for all citizens, even those who do not live in towns where oil and gas drilling is likely to take place, to concern themselves with drilling regulations because, “we all live downstream.”

During my opportunity to speak on behalf of PennFuture, I spoke about the importance of considering the long-term impacts that drilling would have on Pennsylvania’s environment, and thanked DEP and the members of the Environmental Quality Board who were present for the portions of their proposal that adequately protect the Commonwealth‘s long-term interests. I went on to ask DEP to consider making changes to other proposed regulations that aren’t strong enough to get the job done.

A copy of the testimony I gave is available on PennFuture’s website. Other hearings are scheduled between now and January 27, and information about those hearings is available on DEP’s website.

I encourage everyone to attend one or more of these hearings and make their voices heard. Suggested talking points are available on PennFuture’s website.

Mike Helbing is a staff attorney for PennFuture, based in Philadelphia.

The Act 13 decision: A setback for setbacks?

In writing that Act 13 violated the Environmental Rights Amendment to the Pennsylvania Constitution, did the Supreme Court actually harm the government’s ability to protect the environment? That is the contradictory narrative being spun by some who apparently disagree with the Court’s ruling in Robinson Township.

When the Pennsylvania Supreme Court struck down subsection 3215(b)(4) of Act 13 – the part of the law that allowed the Department of Environmental Protection (DEP) to waive setback protections for streams and wetlands based on a plan submitted by the operator -- it also enjoined the DEP from enforcing the setback requirements that are found in another subsection of 3215(b). The Court reasoned that the waiver and setback requirements were intended to be a “package deal.” “It would appear that the General Assembly did not intend for the setback provision to operate without allowing industry operators to secure waivers from the setbacks.” Because the setback protections were not legally “severable” from the invalid waiver provision, the Supreme Court enjoined DEP from applying any portion of section 3215(b).

It would be inappropriate, and violate the fundamental basis of Justice Castille’s “pioneering” opinion, for the government to conclude that it lacked authority to protect waters of the Commonwealth because of the Robinson Township decision.

It is important to emphasize that the Court found nothing repugnant about the setback protections in the law. The Court held that the law gave DEP too much discretion to waive the requirements without adequate guidance on doing away with the protections. Any suggestion that wells should now be permitted without adequate buffers to protect streams would directly contradict the rationale behind the Court’s opinion.

DEP retains authority under the Oil and Gas law to enact regulations addressing appropriate setback protections for streams and wetlands. Section 3274 expressly provides the Environmental Quality Board with express authority to promulgate regulations under the law. This provisions was not affected by the Court's decision. With the legislature already indicating its intent to establish minimum setback protections, the DEP could use this authority to propose regulations for EQB adoption that would establish setback protections consistent with the General Assembly’s intent.

In addition, DEP has both the authority and obligation under the Clean Streams Law to take a variety of actions, including putting conditions in permits, which would protect Pennsylvania’s streams and wetlands. Indeed, under certain circumstances such as in special protection watersheds, it would violate the federal Clean Water Act for DEP to issue permits that would not protect the existing water quality of streams and wetlands.

As Justice Castille wrote, Article I, Section 27 “requires each branch of government to consider in advance of proceeding the environmental effect of any proposed action,” and it imposes on the Commonwealth “a duty to refrain from permitting or encouraging the degradation, diminution, or depletion of public natural resources.” If anything would be an affront to the Court's ruling, it would be for DEP to use the ruling as a basis for issuing permits that fail to ensure protection of the resources that it holds in trust for this and future generations.

DEP has not announced how it intends to evaluate permit applications in light of the Supreme Court's Robinson Township decision. What should be clear, however, is that even without section 3215(b) of Act 13, DEP has ample authority to require that oil and gas development activities be planned and conducted in a manner that fully protects the waters of the Commonwealth.

Mark Szybist is a staff attorney in PennFuture's Wilkes-Barre office. He specializes in oil and gas issues.