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Wednesday, January 22, 2014

Clean Energy Wins -- but we need your help.

Today, Cindy Dunn, president and CEO of PennFuture, announced the launch of Clean Energy Wins -- a campaign geared toward the 2014 governor's race. 

The mission of Clean Energy Wins is simple: to engage bipartisan gubernatorial candidates, bipartisan policymakers, clean energy businesses, and citizens about the economic, job creation, and environmental benefits of clean energy — and to identify practical policies that can be implemented to realize those benefits. 

An overwhelming majority of Pennsylvanians support clean energy and we need to let gubernatorial candidates on both sides of the aisle know.

In March, PennFuture will release the Clean Energy Wins policy roadmap, a report that will help inform the state's next governor and the General Assembly about policies that can grow Pennsylvania’s clean energy economy.

We will also host a candidates' meet and greet in late March in Philadelphia as a vehicle for moving the conversation forward. 

But we can't do this without you. Please add your name to our Clean Energy Wins campaign and tell us why you are a clean energy voter.

Be sure to follow Clean Energy Wins on Facebook and Twitter.

Andrew Sharp is PennFuture's Director of Outreach and is based in our Philadelphia office. 

Will Pa. Senate water down strong building codes bill?

We've told you before about the building codes mess in Pennsylvania. 

In short: Changes to the building code update process, made by the state legislature and Gov. Corbett in 2011 -- at the behest of the home building industry -- are preventing updates to building codes. 

This means that cost-effective industry best practices are being rejected at the expense of health, safety and energy efficiency.

Early next week, the Senate Labor and Industry Committee is expected to vote on a bill that attempts to fix this broken codes process. 

Sen. Charles McIlhinney's bill would streamline the process by restoring Pennsylvania to a system where updated codes are adopted unless a two-thirds majority of the Uniform Construction Code Review and Advisory Council (RAC) votes them out (referred to as the "opt-out" process). 

This would allow for hundreds of commonsense, often simply semantic, code changes to take effect, while allowing for substantive analysis on proposed changes that merit debate. 

It would go a long way toward addressing the dysfunction and delay in the current code process. 

BUT, amendments are very likely to be introduced that would gut the bill of its core function. 

Amendments that have been widely shared with stakeholders remove McIlhinney's key "opt-out" provision. 

If similar amendments are introduced early next week, the watered down bill would fail to address the fundamental flaw of the current code process and Act 1 -- the requirement that the RAC reach two-thirds consensus on hundreds of proposed code changes. 

The amended bill would amount to tinkering around the edges, while the safety and welfare of Pennsylvanians remains at risk because of out-of-date building codes. 

Take action!
Use PennFuture's action alert and tell the Senate to stand up for the safety of Pennsylvanians, not the interests of home builders -- and pass SB 1023 unamended

Andrew Sharp is PennFuture's director of outreach and is based in our Philadelphia office.

Tuesday, January 21, 2014

What's in your air?

Allegheny County ranks 63rd out of 3,225 U.S. counties in terms of cancer risk from HAPs [Hazardous Air Pollutants], Placing it in the top 2 percent nationally” – 2013 Pittsburgh Regional Environmental Threats Analysis (PRETA) report. 

The quote above created a lot of buzz in the region last November. Despite considerable improvements over the past three decades, the air over Pittsburgh and the surrounding communities poses a serious health risk. A problem that will impact residents’ well-being and could hurt the area’s growing reputation as a business and travel destination, if it is not addressed.

State level measures to combat air pollution are outlined in State Implementation Plans aimed at bringing regional air quality into compliance with national emissions standards. The Allegheny County Health Department posts information about current State Implementation Plans online. But the state can’t do it alone! Individual voices are needed to push the state to act quickly on air pollution, don’t sit back and inhale toxic air, take action.

What can you do?

  • Join Us: An Air Quality Community Forum is scheduled for tomorrow, January 22nd, 6:30-8:00pm at the West Elizabeth Municipal Building, 800 4th St. West Elizabeth, PA. Drew Michanowicz, the architect behind the PRETA report, will discuss regional air pollution, associated health risks and what we can do about the problem. All are welcome to come out, ask questions and learn more about what we can do to improve the air we breathe.
  • Take Action: Tell state legislatures to stop dirty diesel pollution and support HB1699 
  • Learn More: Read the full PRETA Report.
  • Be Informed: Know what’s in the air you’re breathing by checking the AirNow Air Quality Forecast. On Wednesday, December 4th, air quality in the region deteriorated and Code Red alerts were issued. Code Red means that conditions are not only dangerous for individuals with asthma and other respiratory problems but that the air is unhealthy for everyone.  
  • Stay In Touch: follow the Breathe Project on Twitter 

Wednesday, January 15, 2014

Land (bank) and Water (department): A Philly update

On Monday, Philadelphia Mayor Michael Nutter held a signing ceremony for the Philly land bank bill. It represents an historic opportunity to address the City’s broken system for putting vacant properties back to productive use. 

The hard work of creating a Philadelphia Land Bank begins now. To get the land bank up and running quickly, the Philly Land Bank Alliance has called on the Nutter Administration as well as City Council to focus on three key steps:

  • First, the Nutter Administration and City Council must appoint a permanent Board of Directors so they can immediately begin the work of overseeing the development of the new agency’s Strategic Plan, policies, and regulations. 
  • Next, the Council and the Mayor need to work together to ensure adequate funding for the Land Bank’s operations as part of the FY15 budget. 
  • Third, Council and the Administration must transfer all of the thousands of publicly-owned properties to the Land Bank. A key reform of the land bank ordinance is the consolidation of publicly-owned properties from the three agencies that currently hold them into one single entity.  


In December, we told you about a bill that will change the way water rates are set in Philly. After 2015, a board of political appointees will be tasked with setting rates. We agree with ex-Mayor John Street on this one. It's not a good idea. 

We were especially concerned because last-minute amendments removed key minimum financial standards that had been negotiated by the Philadelphia Water Department, City Council, and stakeholder groups -- standards that would help guarantee that the department has rates set high enough to cover operating expenses and debt service.

In addition to harming the Water Department's ability to carry out its mission, we were concerned the lack of basic financial standards could damage the department's credit rating and cause concern among bond holders. Why is that important? When it costs more to borrow money, those costs are absorbed by water customers -- ultimately leading to higher rates across the board. 

Welp, that didn't take long. 

In an otherwise positive ratings outlook, credit rating agency Fitch cited recent Council amendments and "politicization of rate relief," saying that the changes made to the ordinance raise concerns and could lead to "negative rating action" -- meaning higher water rates.  

While there was no credit downgrade, make no mistake, credit agencies will be watching closely. 

This is a story we'll be following. 

Andrew Sharp is PennFuture's director of outreach and is based in Philadelphia.

A tale of caution for a precious resource

Last week's major chemical spill into West Virginia's Elk River cut off water to 300,000 people. West Virginians could not drink, shower or wash clothes with their water.
West Virginia's Elk River
It is estimated that 1,200 gallons of a chemical, 4-methyl-cyclohexane-methanol or MCHM, was released from a tank. So little information is known about the chemical that state officials had to rely on the Centers for Disease Control for advice on whether and when the water would be safe for use. NPR reported that toxicologists were relying on their knowledge of the chemical makeup of the compound, and a single study that established lethal doses for rats, to make judgments about when it was safe to drink the water.

According to PennFuture friend Angie Rosser, executive director of the West Virginia Rivers Coalition, the state has yet to explain why the storage facility was allowed to sit on the river and so close to a water treatment plant that is the largest in the state. The facility had not been inspected by the state or federal government since 1991. The area where the spill occurred is known to West Virginians as "Chemical Valley."

The company responsible for the spill, Freedom Industries, reportedly supplies "environmental chemistries and services" to the coal industry. According to the American Association of Poison Control Centers, the chemical spilled is harmful if swallowed or inhaled. MCHM can cause eye and skin irritation, nausea, and vomiting. The EPA has no drinking water standard for MCHM.

Pennsylvanians should not consider themselves immune from such incidents. In 1988, a new storage tank at an Ashland Oil facility along the Monongahela River collapsed, pouring an estimated one million gallons of diesel oil into the river, and threatening drinking water for 750,000 Pittsburgh-area residents. As with the West Virginia spill, a dike around the tank failed to contain the spill.

As proposals are made to build up a petro-chemical industry on Pennsylvania's rivers that rivals Louisiana's Chemical Corridor, the West Virginia spill is a reminder that regardless of how plentiful our fresh water, it remains a precious and fragile resource in need of protection and conservation.

George Jugovic Jr. is chief counsel for PennFuture and is based in Pittsburgh.

Wednesday, January 8, 2014

HYOH: Hike Your Own Hike

It is PennFuture's good fortune to have Cindy Dunn as its new president and CEO. She joined us in November 2013, and it's been fun getting to know her and discovering her many strengths.

Cindy recently gave the commencement address at her alma mater, Shippensburg University, which you can read below. I love her theme: "Hike your own hike," a metaphor not just for hikers on the Appalachian Trail, nor simply for brand-new college grads, but for any of us, at any stage of life. Cindy has a thorough understanding of how conservation works best – when private organizations and governments work together to preserve nature. This knowledge and experience, paired with her deep love for Pennsylvania's wild places, are already helping her lead PennFuture to new and exciting heights.

I've always sought  to hike my own hike, but I'm also delighted to part of Cindy Dunn's hike at PennFuture to preserve and improve our beloved Commonwealth.

                                   -- Joy Bergey, federal policy director, PennFuture

"It is gratifying to be here and to be part of this special event, signifying for each of you a major milestone in your life. Frankly, 32 years ago,  when I was in your shoes, or under your caps as it were, I could have scarcely imagined myself on this side of the podium.

I had a wonderful experience here at Shippensburg as a grad student. I was serious about learning, and the academics were as rigorous then as they are now. I deeply immersed myself in the work of being a student, and later a grad student and grad assistant. But I was equally serious about enjoying the great out-of-doors in the beautiful area surrounding this campus. In the fall, I’d drive north to watch the hawk migration on the Kittatinny ridge (known locally as first mountain).  I’d go fishing in the nearby spring-fed streams, spelunking in the caves, and for bike rides out of town into the surrounding farmland of the Cumberland Valley, always with a ridge in the distant background.

My best memories at Ship were the classes that combined outdoor research and learning, such as botany, aquatic biology, and mammology. Looking back, I remember those adventures into the nearby mountains and streams more than I do the classrooms. The professors here encouraged learning, but also passion for nature. And on one of the many botany field trips to South Mountain, I discovered that the Appalachian Trail (known as the AT), passes less than ten miles from Shippensburg. So, I spent occasional afternoons or weekends hiking on the nearby AT, and have continued to do so since.

Shippensburg is very close to the mid-point of the trail’s 2,000-plus mile journey from Maine to Georgia. I have not completed the whole trail, so I am not one of the respected through-hikers, also called 2000-milers, who have done the trip from end to end. My husband, Craig, is a 2,000-miler, and volunteers to maintain a 17-mile section of the trail here in the Cumberland Valley. Like him, thousands of volunteers along the length of the trail pick up a shovel and clippers to maintain their section.

If you were to contemplate hiking the entire Appalachian Trail, you would quickly learn that there is a standard formula for success in completing the hike in one season. In fact, the vast majority of through-hikers do it this very specific way. They begin their hike at Springer Mountain, Georgia in March, then hike north through Pennsylvania by June, then continue northbound to Maine. Hikers are racing the clock because it is necessary to climb Mount Katahdin at the northern terminus before the end of September, when there’s a growing risk that snow and ice will render the mountain impassable. These hikers are called northbounders.

Comparing this to “real life,” you might say the northbound route is the equivalent of the old classic formula for career success – graduate from high school, go straight to college, get an undergrad degree, get a  master’s degree, land a good job, and stay there to build up a retirement. But this isn’t the best route for everyone.

There is a saying among the hikers on the Appalachian Trail that goes, “Hike your own hike." And like most things today, it has a text acronym: HYOH. “Hike Your Own Hike” essentially means that you should choose your own journey and let others choose theirs. Many hikers find the need or desire to veer off from the basic success formula for hiking the trail. HYOH means you should choose the journey that makes sense for you – fast or slow, lots of gear or very little, and whether to go northbound or southbound, or in sections over the course of many years. There are endless possibilities. HYOH means to choose the journey based on YOUR goals and your needs and abilities. Many of you here tonight are hiking your own hike.

Along the length of the Appalachian Trail there are many interesting side trails, called blue-blaze trails. Many hikers speeding northbound skip them because they slow the hike and take extra time.  But for other hikers, they add enrichment and offer unique experiences and views. 

It is always difficult in life to strike a balance between the discipline of reaching your goals, and enriching and broadening your experience. Your learning experience at Shippensburg has shown you how you can reach your goals, while at the same time expanding your horizons and enriching your life. I hope you took some blue-blaze trails while you were here at Ship. I know I did.

However you choose to hike your hike, there are things that will enrich and support you and things that will drain and divert you. This is true of any journey, and when you are in the middle of such a diversion, don’t lose sight of your goal, even if there are weeks, months or years when you cannot make satisfying progress.

A note about gear: On the Appalachian trail, when the only material goods you have are limited to boots and the contents of your back pack, these few possessions become the equivalent of houses, cars and other material goods in the non-trail life. Sitting around the shelters and campfires of the AT, gear, food, and possessions are often the focus of attention, with heated discussions on the best boots and the best backpacks, in much the same way people talk about cars, houses, and other items. But looking back years after a long hike, or a long life, how important will these material items be? How much do they enrich your hike or your life? What will you remember when you look back?

Along with the magnificent vistas, wonders of nature, and triumph over physical challenges, many 2,000-milers report that their fondest memories are the instances of “trail magic” they experienced. Trail magic, defined as an unexpected act of kindness, is a quintessential part of the Appalachian Trail experience. Trail magic can happen when fellow hikers share meager possessions or a complete stranger in a local community offers assistance.
Your trail will lead you into some valleys. Some deep valleys. Walk through them with the resolve and determination that will take you through to the next peak. Never doubt that as long as your feet are moving, the trail will change. For many of you here tonight, the diploma in your hand is the key to your new journey. You graduates here tonight are hiking your own hike. That’s why you chose to seek an advanced degree. You know the value of learning, you climbed the mountain of effort, and understand that the degree not only gives you needed knowledge and skills, but a broader new perspective.

Always know who you are and where you are on the trail of your life. Live in the place and in the moment that you are in. Be a person who creates trail magic. Enjoy the views from the mountain tops of your life.

Your graduation is one such mountain top. Take the time to be in the moment of this milestone in your life. Others will congratulate you. Be sure to congratulate yourself.

As you leave Shippensburg University tonight, remember to hike your own hike. The lessons you have learned here have prepared you for more than a great career. They have prepared you for great journey through life."

                          -- Cindy Adams Dunn, 
                              Commencement address at Shippensburg University, December 13, 2013

Monday, January 6, 2014

Speak now: Public hearings on new oil and gas regulations

The Pennsylvania Environmental Quality Board (EQB) has scheduled seven public hearings in January throughout the state on new regulations around oil and gas development, and is encouraging public comment during the rulemaking process.

At issue are the protection of streams and waterways from drilling operations; storage or freshwater and other fluids related to fracking; and the proper collection, analysis and disposal of waste materials at well sites, among many other concerns. 

The first hearing is scheduled on Tuesday, January 7, in northeastern Pennsylvania. A complete listing of hearing dates and locations, as well as registration information, can be found here

Listed below are a series of concerns we have with the proposed regulations. We encourage you to use these talking points to guide your testimony. If you do testify, keep in mind that you are only allotted five minutes so you will want to speak to the issues that resonate with you the most. 


All fluids related to oil and gas development should be contained in engineered facilities, not "natural depressions." (Section 78.1, definition of "freshwater impoundment" and "pit," Section 78.56)

Our streams and groundwater should be secure from pollution caused by the storage of wastes and fluids associated with oil and gas production operations. The definitions of "pit" and “freshwater impoundment” raise questions about that objective because they continue to incorporate the concept of “natural topographic depressions” within the definitions. We should not even suggest that Pennsylvania will allow fluids related to oil and gas operations to be managed in "natural depressions." All facilities used to hold fluids that may contain potential water pollutants should be specifically engineered for the task.

The definition of "seasonal high groundwater table" should be retained in the proposed regulations, because the term continues to play a key role in regulating oil and gas activities. (Section 78.1)

Proposed section 78.1  deletes the definition of "seasonal high groundwater table" even though that term is still used throughout the regulations, including in sections 78.56(a)(11), 78.59b(e). This definition should be maintained to ensure clarity and consistent enforcement.

The permit applicant, not the Department of Environmental Protection (DEP), should be responsible for determining whether proposed oil and gas operations would affect threatened or endangered 
species. (Section 78.15(d))

Protecting the habitat and physical safety of vulnerable species is a critical part of ensuring biodiversity and the quality of our environment. The federal Endangered Species Act was designed to achieve these goals by making it unlawful for any person to harass or take a listed species, including adversely affecting the habitat of a listed species in a manner that effects a take. Similarly, state law currently imposes the obligation on operators to ensure that their activities will not adversely affect listed species or their habitat. 

The proposed regulations change that obligation by only requiring gas operators to mitigate the impact of their operations on threatened or endangered species if the DEP determines that the well site location will adversely impact species or “critical habitat.”

Because an operator proposing an oil or gas project stands to gain financially from the project, and is in the best position to understand the scope and potential impact of its proposal, the operator (and not the DEP) should have the burden of determining whether its project would affect listed species and their habitat.

The DEP should respond to comments received about a permit that may affect an important public resource. (Section 78.15(d))

The proposed regulations allow for a public resource agency to receive notice of, and submit comments about, a proposed well permit that would affect its resources. The regulations, however, do not require the DEP to respond to those comments. To ensure that comments are adequately considered and that public resources are fully protected, the regulations should require the DEP to respond to comments submitted by public resource agencies.

The DEP should not compromise its obligation to protect the environment by balancing the citizens’ constitutionally guaranteed right against private interests in oil and gas. (Section 78.15(g))

The DEP is required by the Pennsylvania Constitution to protect the public’s right to a clean environment. The proposed regulations provide that even though the DEP determines that a proposed well will have a probable adverse impact on a public resource, the DEP still cannot impose conditions that will prevent or mitigate that harm without first considering the impact of the condition on the individual mineral right owner’s ability to “optimally” develop his or her oil and gas rights. This regulation inappropriately places the DEP, whose mission is supposed to be to protect and conserve Pennsylvania’s environment, in the position of balancing protection of important public resources against individual property rights. Furthermore, it inappropriately, and potentially illegally, elevates the “optimal” development of oil and gas over the protection of important public resources against likely adverse impacts. These draft regulations do not give proper weight to the DEP’s constitutional obligation to protect the environment. So long as the DEP’s actions do not affect a taking of private property, the DEP should be obligated to take whatever actions are necessary to condition permits in a manner that protects important public resources.

The DEP’s duty to investigate water pollution should extend to the all oil and gas activities. (Section 78.51(c)).

The Chapter 78 regulations require the DEP to investigate instances of water pollution that occur near oil and gas wells. As part of its investigation, the DEP may determine that water pollution was caused by the “well site construction, drilling, alteration or operation activities.” This set of activities is much more limited than the list of activities defined as “oil and gas activities” in Act 13. To ensure maximum protection of water resources, the DEP’s investigation should extend to all oil and gas activities.  

The prohibition on construction of fluid storage areas within 100 feet of certain water bodies should be extended to all water bodies. (Section 78.59c)

The current draft regulations prohibit well operators from building “centralized impoundments” for wastewaters within 100 feet of any “solid blue line stream” identified by the United States Geological Survey. Solid blue line streams flow consistently year round. This 100 foot buffer is important, but it should be extended to other streams that do not flow continuously. Although we recognize that Act 13 unwisely referred to “solid blue line streams,” intermittent and ephemeral streams need to be protected as well. Some of our most vulnerable waters are intermittent portions of high quality streams. Those waters would not be adequately protected by these regulations. Furthermore, the DEP has an obligation to protect intermittent streams under the Clean Streams Law. Rather than attempt to make that decision on a case by case analysis, the DEP should extend this buffer to all Pennsylvania streams.

The DEP should stop promoting the disposal of residual waste at well sites.  (Section 78.62)

The draft regulations would allow well operators to dispose of residual waste in pits on well sites as long as they comply with certain minimal requirements. Because waste generated at oil and gas sites is exempt from the hazardous waste regulations, the result is that hazardous waste can be managed as residual waste and disposed at well sites with a single synthetic liner and no long-term groundwater monitoring. These minimal protections are inadequate.

As the DEP knows, many well-site disposal pits have leaked in recent years, contaminating surface and groundwater and dotting the Pennsylvania countryside with brownfield sites. Given the high risks of these mini-landfills, and the fact that their one and only advantage is fewer truck trips to landfills (and reduced cost for operators), the DEP should prohibit well site disposal of residual waste entirely. To the extent that the DEP continues to allow this method of waste disposal it should, at a minimum, require long-term groundwater monitoring and public notice of existing and future disposal sites.

The DEP should strengthen its regulatory mechanisms for ensuring that pits and impoundments are constructed in a structurally sound manner and according to regulation. (Section 78.59c(m))

The rulemaking proposes to allow engineer certifications that pits and impoundments have been correctly constructed in lieu of DEP inspections. If the DEP is not itself capable of ensuring proper construction of facilities such as centralized impoundments, these certifications should be submitted under penalty of law for unsworn falsification to authorities (18 P.S. § 4904) so that any intentional falsification can be prosecuted criminally. The DEP should also mandate better self-monitoring by requiring that photographs or video be taken of the finished construction so that there is evidence of the site construction that can be reviewed after the fact.

Any disposal of waste materials at well sites should require that representative samples of the material be taken and analyzed and submitted to the agency to demonstrate that, for example, the drill cuttings are not contaminated, or that residual waste meets the regulatory standards. (Sections 78.61 and 78.62)

If waste is disposed at well sites, a sample of the material should be taken and analyzed. This sample should be sent to the agency to demonstrate that drill cuttings are not contaminated, and that any residual waste does not exceed legal limits. The regulations do not currently require that the operator use any scientific methodology to demonstrate compliance.

The collection and analysis of chemical samples of waste that the operator intends to dispose on site should not be discretionary; the regulations should be clear that is a mandatory obligation. This is particularly of concern where the disposal site does not need to be inspected by the agency prior to closure, and there is no long-term groundwater monitoring.  (Section 78.63(19))

Collection and analysis of chemical waste samples that are intended to be disposed of onsite needs to be a mandatory requirement. The draft regulations leave this to the discretion of the operator, which should not be permitted. This is particularly important where a disposal site does not need to be inspected by the agency prior to closure, and there is no provision for long term monitoring of ground water.

The DEP’s proposed regulations for the road-spreading of brine pose unacceptable threats to the Commonwealth’s water resources – and would be unlawful. (Section 78.70a)

Section 78.70 of the DEP’s proposed oil and gas regulations would authorize the road-spreading of brine from conventional wells for dust control on dirt and gravel roads. Proposed section 78.70a would authorize the road-spreading of brine for de-icing purposes. Both sections would deem any operator that spreads brine on roads to have a “permit-by-rule” for the beneficial use of residual waste as long as the operator complies with the proposed Chapter 78 regulatory scheme.

DEP’s approach is troublesome for two reasons. First, because the proposed regulations do not ensure compliance with the DEP’s anti-degradation program or contain adequate chain-of-custody requirements, the risks of spreading brine on roads outweigh the benefits, which are largely confined to disposal-cost savings for the industry.

The second problem with sections 78.70 and 78.70a is a legal one. All wastewaters from oil and gas operations, including brine, are residual waste under the Pennsylvania Solid Waste Management Act (“SWMA”). It follows that any beneficial use of brine, including dust suppression and de-icing, is subject to regulation under the DEP’s SWMA regulations at 25 Pa. Code Chapter 287. These regulations do not currently allow permits-by-rule for road-spreading or any other beneficial use of brine. Beneficial uses of brine may be approved only under the general permit scheme set forth in Subchapter H of Chapter 287. Thus, the permit-by-rule scheme proposed in sections 78.70 and 78.70a is not only imprudent; it would also be illegal.

The DEP’s revisions to Chapter 78 should establish meaningful standards for the restoration of well sites and impoundment sites. (Sections 78.65, 78,59b, and 78.59c)

Act 13 requires two stages of restoration for well sites. On the one hand, section 3216(c) requires partial restoration after the conclusion of drilling and fracturing operations. On the other hand, section 3216(d) requires final restoration after the last well on the site has been plugged. The DEP is proposing to implement these sections in proposed regulation 78.65, which provides that a well site will be considered restored if it is returned to its “approximate original conditions, including preconstruction contours,” and if it “can support the original land uses to the extent practicable.” Similar language appears in the DEP’s proposed regulations for freshwater impoundments (78.59b) and centralized wastewater impoundments (78.59c), which also contain restoration requirements.

A return to original conditions, contours, and uses is a laudable goal for the restoration of well sites (both post-drilling and post-plugging) and impoundment sites. Currently, though, the DEP’s general restoration standards are practically unenforceable because the DEP’s regulations (i) fail to require environmental baseline site assessments, (ii) fail to require site-specific standards and criteria for restoration, (iii) fail to require environmental professionals to sign off on site restorations, and (iv) establish no process whereby the DEP can finally approve or disapprove restoration. The DEP should require site-specific baseline assessments and restoration plans for all well sites and impoundment sites, require professional certification that restoration goals have been met, and require DEP approval before a site can be considered to be restored.

The DEP’s proposed regulations regarding bonding are inadequate, because they fail to ensure that well sites and impoundment sites will be finally restored before they are released from operators’ bonds. (Subchapter G)

Under Act 13, an operator can obtain one blanket bond in the amount of $600,000 that covers all of an operator’s well sites in the Commonwealth. Despite the extremely low amount of this bonding requirement (and of all of Act 13’s bonding requirements), the bond is supposed to secure all of the operator’s legal duties regarding water supply replacement, restoration and well-plugging. 

The DEP may not have the power to require higher amounts for bonds than the Act 13 amounts, but it can and should establish a process to ensure that operators are not released from liability for particular well sites until those sites are properly restored. The DEP’s proposed revised bonding regulations (set forth in Subchapter G of Chapter 78) fail to do this. They condition release from liability only on the filing of a certificate of plugging. Release from liability should also be conditioned on the adequate final restoration of the well site after the last well on the site has been plugged. 

Andrew Sharp is PennFuture's Director of Outreach and works out of our Philadelphia office.