The hidden truth behind existing sources (of methane pollution)

Over the past year, the chatter on methane pollution from oil and gas operations has gotten much louder—and that's a good thing. This has been helped along by the fact that the Environmental Protection Agency (EPA) proposed rules in August 2015 to cut methane pollution from new and modified sources in the oil and gas industry. Going a step further, Gov. Tom Wolf proposed a four-point plan in January 2016 to curb methane pollution from new and existing sources of oil and gas operations in Pennsylvania. Last month, President Obama and Canadian Prime Minister Justin Trudeau pledged to work on rules for existing sources of oil and gas methane pollution that would address emissions across the U.S. and Canada.

It's the latter proposals to cut existing sources of oil and gas methane pollution that have caused much consternation among oil and gas producers. These companies, and their lobbyists, are quick to offer sound bites suggesting that they've got this, they are addressing existing sources of pollution voluntarily as it's in their best interest, and that there's no need for what they view as unnecessary and duplicative standards. The short answers, from where we sit, are no, no and no.

Existing sources of oil and gas operations, or the hundreds of thousands of wells, tanks, and compressor stations across the U.S., routinely vent, flare and leak methane. Methane, or CH4, is the primary constituent of natural gas and is a potent greenhouse gas, 86 times more so than carbon dioxide in the first 20 years after its release into the atmosphere. This airborne pollution is a public health problem, a waste of our natural resources, and a climate disaster in the making.

When oil and gas producers refer to methane pollution and say they've got this, they're wrong. Methane pollution from existing sources—the bulk of the problem—continue to increase as both Pennsylvania and EPA inventories indicate. Where we have seen some marked declines is in the category of green well completions, or the process of completing a well and readying it for production. It's worth noting that green completions are the one regulated category of methane emissions. Two words: Rules work.

As to voluntary compliance, that's pretty much another fallacy. The EPA's Natural Gas STAR program, which promotes voluntary efforts to rein in oil and gas pollution, struggles with woefully low buy-in from the industry. While Pennsylvania Department of Environmental Protection (DEP) Secretary John Quigley has singled out Southwestern, Shell, Chevron and CONSOL as large producers that work to cut methane pollution, he also acknowledges that the bulk of small-mid size producers are nowhere near curbing emissions on a voluntary basis. Further, Quigley has stated that methane emission figures in the state are "unrealistically low" because leaks are so common and rarely measured.

Lastly, the suggestion that proposed methane rules for existing sources in Pennsylvania would be unnecessary and duplicative is absurd. Unnecessary? See the two previous paragraphs. Duplicative? Impossible, as Pennsylvania currently has no comprehensive regulatory framework for methane pollution from oil and gas operations. Colorado does, Pennsylvania is working on it, and California recently proposed its own suite of methane rules. We applaud Sec. Quigley's continued call for "best-in-the-nation" standards on methane pollution in PA.

Existing sources of methane pollution are a clear and present danger and must be addressed. The Wolf administration is on its way to doing just that, and 70 percent of Pennsylvanians in a recent poll support the effort. The proposed rules are laudable, and we thank the governor for his bold leadership.

In the weeks and months ahead, PennFuture will provide ample opportunity for citizens of the commonwealth to show their support for rules that cover existing sources of methane pollution. It's time to rein in this harmful pollution and protect our communities. We stand ready to help.

Elaine Labalme is strategic campaigns director for PennFuture and is based in Pittsburgh.

Let's do this: Time to enact proposed revisions to PA oil and gas rules

While Pennsylvania's Oil and Gas Technical Advisory Board (TAB) said YES on October 27 to moving proposed revisions to the state's oil and gas rules on to the Pennsylvania Environmental Quality Board (EQB), it wasn't before asking for even more time to review a suite of standards that has been in the works for almost five years and already been subject to two public comment periods that generated over 30,000 comments.

The five voting members of the TAB, several of whom have ties to the oil and gas industry, floated a resolution after an exhaustive, five-hour briefing on the proposed rules by the Department of Environmental Protection (DEP). The resolution would allow TAB to present a report to the EQB on the proposed rules at a later date, a report which will not incorporate comments from the TAB's four non-voting members, who represent community and environmental groups and other non-industry constituencies.

Are you keeping up? We can't blame you if you're not as the process to revise the state's oil and gas rules has been fraught with the threat of industry-backed lawsuits, needless delays, and the flat-out dismissal of the public interest by oil and gas industry lobbyists -- this despite strong public support for updated rules to cover everything from leaky centralized wastewater impoundments to the proximity of drilling activity to public resources that would include schools and playgrounds.

Oh yeah, did we say that these rules need to be finalized by March 2016 or the whole MULTI-YEAR-LONG process starts all over again?

The oil and gas industry, and those who are enabling its misguided efforts around these rules in Pennsylvania, need to stop delaying what has been a thorough and exhaustive process and move forward in support of updated standards that will help ensure clean air and water for Pennsylvanians while helping to protect public health and the environment.

Elaine Labalme is strategic campaigns director for PennFuture and is based in Pittsburgh.

Does a coal-to-gas switch = bad to worse?

On August 3, 2015, President Obama announced the final rule for the Environmental Protection Agency's (EPA) Clean Power Plan, which aims to cut carbon pollution from power plants by 32 percent by 2030.

The good news in Pennsylvania is that we're already roughly halfway to meeting that goal. A Statewide Implementation Plan will be crafted over the next year that will allow us to meet the full goal utilizing "building blocks," which include adding more renewable energy to Pennsylvania's electric generation mix and accelerating energy efficiency, increasing efficiency at coal-fired power plants, and making a switch in electric generation from coal to natural gas.

Okay, not so fast on that last one as a switch from coal to natural gas warrants a close look. Carbon pollution from coal-fired power plants is indeed a huge problem as C02 is a greenhouse gas that will warm our planet, and remain in the atmosphere, for a very long time. Centuries. Natural gas, on the other hand, is a cleaner burning fuel whose current low prices makes it an (apparent) logical choice for a coal-to-gas switch.

However, natural gas operations bring the very real issue of methane emissions as a by-product of drilling operations. Methane or CH4, the primary component of natural gas, is a far more potent greenhouse gas than coal, up to 84 times more so in the first 20 years after its release into the atmosphere. While it remains in the atmosphere for a shorter time than carbon, its planetary warming wreaks a tremendous amount of havoc in the meantime.

Photo credit: WCN 24/7 via Flickr Creative Commons

If we are to truly combat climate change, we must address both carbon and methane emissions. Simply trading one for the other accomplishes little.

Where we need to focus our energy in the battle against climate change is on renewable energy and energy efficiency. These cleaner measures will create good-paying jobs and save consumers money on their electric bills. Pennsylvania currently boasts 57,000 jobs in the clean energy sector and is poised for many more. Studies show that aggressive energy efficiency measures could drive down electricity bills by nearly 10 percent by 2030.

As the Pennsylvania Department of Environmental Protection (DEP) readies its response to the Clean Power Plan, it must also roll out strong standards that address methane emissions from both new and existing sources of natural gas operations. We cannot trade one problem for another since that will only make a bad situation worse.

Elaine Labalme is strategic campaigns director for PennFuture and is based in Pittsburgh. She tweets @NewGirlInTown.

W-B attorney named to pipelines task force

Mike Helbing, a PennFuture staff attorney since June 2013, was recently appointed to the new Pennsylvania Pipeline Infrastructure Taskforce. The task force was established by Gov. Tom Wolf and is comprised of 48 members who will develop recommendations on natural gas pipeline infrastructure to be submitted to the governor by February 2016. Task force meetings beginning later this July will be open to the public and streamed live, according to the Department of Environmental Protection (DEP). Mike will serve on the Environmental Protection workgroup, which is one of twelve covering specific areas. The task force is expected to address a range of issues and develop best practices and strong policies for the significant number of planned gas pipeline projects across Pennsylvania.

Mike transferred in July from our Philadelphia office to our Wilkes-Barre office, just one county over from his native Lackawanna County. Prior to coming to PennFuture, he was an associate chief counsel for litigation at the Food and Drug Administration (FDA), and is an alumnus of Penn State University and Yale Law School.

Mike's work covers water quality, stormwater, and gas drilling issues focusing on the Delaware and Susquehanna River watersheds, and includes reviewing and filing comments on pipeline and transmission line permit applications and on revisions to DEP’s oil and gas regulations. In a win for citizen participation and water quality, he was a lead negotiator on a November 2014 settlement with DEP to improve Pennsylvania's municipal stormwater permitting process.

Kate Gibbons is northeastern Pennsylvania outreach coordinator for PennFuture and is based in Wilkes-Barre.

A Range of violations on shale gas drilling in PA

Natural gas driller Range Resources, which has substantial operations in the Marcellus Shale region, has been fined $8.9 million by the Pennsylvania Department of Environmental Protection (DEP) for allowing a "defectively cemented gas well" to leak methane and other substances into groundwater and a stream in Lycoming County. This is the largest fine ever assessed for a shale gas drilling violation in Pennsylvania and is double the then-record $4.1 million fine that Range was assessed in September 2014 for wastewater impoundments that were leaking fracking fluid.

While the driller is appealing the fine to the state's Environmental Hearing Board, DEP Secretary John Quigley is confident that agency action was necessary. "Range Resources has the responsibility to eliminate the gas migration that this poorly constructed well is causing," he said in a statement. "Refusing to make the necessary repairs to protect the public and the environment is not an option."

Photo by Penn State News via Creative Commons

Yep, the top cop is on the beat, which is exactly what the people of Pennsylvania want, and expect, from their environmental regulator. On the flip side is yet another drilling company that refuses to acknowledge its actions with respect to methane leaks that are hurting our air and water.

The citizens of the Commonwealth, as per Article 1, Section 27 of the Pennsylvania constitution, are entitled to "...clean air, pure water, and to the preservation of the natural, scenic, historic and esthetic values of the environment..." Drinking water supplies contaminated by methane leaks are not acceptable. Similarly, choking on air fouled by methane emissions from natural gas drilling operations is not what Pennsylvanians signed on for.

Natural gas drillers will continue to operate with impunity in Pennsylvania until we say they cannot. The civil penalty announced by DEP on June 16 is the right action around an unfortunate set of circumstances.

PennFuture supports proposed revisions to the state's oil and gas laws under Pa. Code Chapter 78 as a vital step toward holding drillers accountable and thereby protecting public health and the environment. We are also calling for the direct regulation of methane emissions in Pennsylvania as is the case in other gas-drilling states. Methane, a potent greenhouse gas, should not be leached into our water and spewed into our air by irresponsible operators.

Enforcement of existing regulations is necessary, but the goal is to not have such leaks in the first place. We hope the lessons learned from this and other violations will allow DEP to continually improve our regulations and require best practices industry-wide.

Elaine Labalme is Strategic Campaigns Director for PennFuture and is based in Pittsburgh. She tweets @NewGirlInTown.

Seeing is believing: PublicSource and the DEP Air Emissions Inventory

The Pennsylvania Department of Environmental Protection (DEP) recently released its Air Emissions Inventory, and our Rob Altenburg took the opportunity to break down this dense packet of data to make it more easily understood.

The folks at PublicSource, an investigative news outlet based in southwestern Pennsylvania, took it a step further by creating a series of interactive charts that address key takeaways of the DEP inventory once you take a deeper dive.

Among the items we can now see, in living color, these two stand out:

1. While methane emissions from natural gas operations have decreased statewide, the vast majority of the decline is in categories subject to federal regulation such as "green" well completions. Unregulated sources of methane emissions, such as those from pumps and dehydrators, continue to increase.

2. Six companies accounted for nearly half of all methane emissions in Pennsylvania.

Two things are clear here:

1. Regulations work as evidenced by the decline in the one category subject to federal regulation. But federal rules aren't enough -- Pennsylvania needs to directly regulate methane emissions if it wants to get a handle on this potent greenhouse gas, a climate killer that along with other toxic co-pollutants is contributing to serious public health issues.

2. A comprehensive regulatory framework on methane will ensure that ALL operators in the Commonwealth are adhering to the rules and capturing/controlling emissions. When the level of emissions varies wildly between companies, it's easy to see that we need enforceable standards.

But don't just take my word for it. You can see for yourself, clearly, at PublicSource.

Elaine Labalme is Strategic Campaigns Director at PennFuture and is based in Pittsburgh. She tweets @NewGirlInTown.

Speak up at public hearings on oil and gas regulations

On April 4, 2015, the Pennsylvania Department of Environmental Protection (DEP) issued a “Notice of Final Rulemaking” regarding the state’s updated oil and gas regulations (Chapter 78 and 78a). Over a year ago, the state sought public input on proposed requirements for oil and gas operations and received over 24,000 comments. Some of those comments were incorporated into the revised rule, which was released this month.

The DEP will hold three public hearings on these latest revisions. This is our last chance to weigh in on Chapter 78 and 78a of the PA code (78a, which addresses unconventional “fracked” wells, begins on page 121).

Add your voice at the upcoming hearings to submit concerns about the final rule and to show your support for strong drilling standards. We need our regulators to prioritize our health and communities – to reduce toxic air pollution, preserve our waterways and prevent the harmful fragmentation of our natural lands. 

Listed below are a few of our comments and concerns. We continue to review the proposed rule and will incorporate updates here. You are welcome to use these points to guide your testimony. Feel free to contact us at souter-kline [at] pennfuture.org, with any questions.

PennFuture Chapter 78 and 78a rulemaking comments and concerns:

• We support the DEP’s decision to prohibit new on-site pits for storage of flowback wastewater at unconventional operations, and to require those pits that are currently in use to be closed. 
• The revised rule makes clear that earth disturbance operations must comply with the agency’s Chapter 102 regulations, use best management practices for erosion and sedimentation control and stormwater management, and incorporate the agency’s forest buffer guidance. Further, unconventional well operators that propose to work in a high quality or exceptional value watershed must comply with the anti-degradation requirements of Chapter 102.These improvements will help to protect our most pristine waterways from degradation due to erosion and deforestation. 
• The revised rule recognizes that schools and playgrounds are important public resources, and requires an operator proposing to locate a well within 200 feet to demonstrate what will be done to avoid or mitigate harm to that resource. PennFuture continues to have serious concerns about the impact of air pollution caused by shale gas drilling operations on our children. Young lungs are especially vulnerable to pollution and we would like to see expanded buffers around schools. 
• PennFuture supports the proposal that any affected drinking water supplies must be restored either to Safe Drinking Water Act (SDWA) standards or, if pre-existing water quality was higher than SDWA standards, to the better pre-existing condition.
• While we support including a noise mitigation plan requirement, we are concerned that the provision will not result in meaningful noise reduction or control at well sites. As outlined, the noise requirement is vaguely worded and fails to set an objective standard for evaluating problems, making it difficult, if not impossible, to assess compliance. 

Valessa Souter-Kline is western Pennsylvania outreach coordinator for PennFuture and is based in Pittsburgh. She tweets @ValessaSK.

Proposed revisions to state oil and gas regulations announced by DEP

We offered our support this week for proposed revisions to Pennsylvania's oil and gas regulations in the following statement: 

PennFuture today signaled its support for comments made by John Quigley, acting secretary of the Department of Environmental Protection (DEP), as he announced revisions to the state's proposed oil and gas drilling regulations as listed in 25 pa. Code Chapter 78 (for conventional oil and gas operations) and Chapter 78a (for unconventional oil and gas operations). 

The revised proposal is an update to regulations that were proposed by DEP in December 2013. Those draft regulations were the subject of more than 24,000 comments from stakeholders on all sides of the issue. PennFuture submitted detailed comments urging DEP to strengthen the regulations to better protect public health and the environment. The organization was gratified to learn that the revised regulations are expected to incorporate many of the ideas included in its 46-page comment letter, including:

• elimination of the use of well-site waste storage pits by unconventional well operators;
• permitting of centralized wastewater impoundments only through the Residual Waste Regulations at 25 Pa. Code Chapter 299, which have more stringent engineering requirements and environmental protections than those the DEP originally proposed to include in Chapter 78;
• extension of the time period for agencies in charge of “public resources” to review and comment on plans for oil and gas drilling operations that may impact public resources; and
• explicit language making clear that a drinking water supply contaminated by oil and gas operations must be restored to the better of pre-drill conditions or Safe Drinking Water Act standards.
  "We're pleased to hear Acting Secretary Quigley emphasize the importance of 'protecting public health and the environment,' and undertaking a process that is 'thoughtful, deliberate, and transparent,' as DEP moves toward finalizing these vital regulations by spring of 2016," said John Norbeck, acting president and CEO of PennFuture. "It is paramount that we have strong rules of the road for oil and gas operations in the state. Our citizens have been demanding this, as witnessed by the 70 percent of Pennsylvanians who support the direct regulation of methane emissions."
  The environmental advocacy organization will review the draft Chapter 78 regulations in full when they are made available by DEP. It will then offer additional comment during the upcoming 30-day period for public participation.
  Elaine Labalme is director of communications for PennFuture and is based in Pittsburgh. She tweets @NewGirlInTown.

PA must tackle well construction, methane emissions

From the Associated Press:

PITTSBURGH (AP) — The final report from a landmark federal study on hydraulic fracturing, or fracking, found no evidence that chemicals or brine water from the gas drilling process moved upward to contaminate drinking water at a site in western Pennsylvania.

The Department of Energy report, released Monday, was the first time an energy company allowed independent monitoring of a drilling site during the fracking process and for 18 months afterward. 

After those months of monitoring, researchers found that the chemical-laced fluids used to free gas stayed about 5,000 feet below drinking water supplies. Scientists used tracer fluids, seismic monitoring and other tests to look for problems, and created the most detailed public report to date about how fracking affects adjacent rock structures.

A separate study published this week by different researchers examined drilling sites in Pennsylvania and Texas using other methods. It found that faulty well construction caused pollution, but not fracking itself.

The results of this study are not particularly surprising. Shoddy well construction -- not migrating frac fluid -- is the source of most of the problems with water contamination.

These studies don't tell the full picture of the environmental impacts of natural gas development. Air emissions -- and particularly methane leaks -- are a huge concern and must be addressed. Methane is a highly potent greenhouse gas and, absent adequate controls, methane leaks across the natural gas supply chain could undo many of the potential environmental benefits natural gas can have over other fossil fuels such as coal.

The bottom line is that we must address the areas of highest risk if we are to prevent damage to our land, air, and water. Tackling both methane emissions and well integrity issues is a must for Pennsylvania.

Andrew Sharp is PennFuture's director of outreach and is based in Philadelphia. He tweets @RexBainbridge.

State audit criticizes DEP's handling of drilling industry

Yesterday, state Auditor General Eugene DePasquale released his report on the Special Performance Audit of the Pennsylvania Department of Environmental Protection (DEP). The audit made clear that DEP is falling well short in its regulatory oversight of the shale gas industry. 

The Auditor General indicated that while DEP disagreed with all of its findings, the Department was willing to accept a majority of its recommendations. He also indicated that while there have been improvements since the audit began in 2013, the “telltale sign” of the audit's success would be the implementation of its 29 recommendations. 

PennFuture's Vice President, John Norbeck, released this statement on the audit: 

“While we commend the employees at DEP for their ongoing efforts to address the environmental impacts of Pennsylvania's natural gas drilling boom, it's clear that the Department is not keeping up with its statutory role. The Auditor General noted in his report eight key findings that outlined, among other concerns, the Department's failure to issue administrative orders when violations occurred, effectively allowing the industry to police itself. Further, the report noted that the Department had no clear inspection schedule for gas wells, and evidenced a startling lack of transparency and accountability. When our citizens have greater access to information about kennel inspections and restaurant inspections than they do natural gas well inspections, we have a problem.” 

“DEP is severely underfunded and understaffed at a time when the natural gas industry in Pennsylvania is experiencing substantial growth. The Corbett administration should be increasing agency staffing, not decreasing it, and ensuring that DEP employees have the necessary tools to do their jobs. Anything less is a failure of leadership. We are again issuing the call for a drilling tax that will allow for rigorous monitoring of the natural gas industry as it makes drillers more accountable for the inevitable environmental damage that will result from this industrial activity.”  

“This report could not be clearer: DEP needs additional funding, more cops on the beat, and a robust monitoring system. While other gas drilling states are pursuing world-class inspection standards, Pennsylvania is falling short. We can ill afford to let another extractive industry run roughshod over the Commonwealth. We cannot repeat the mistakes of the past, mistakes for which we are still paying dearly.”

For more coverage of the audit: Philadelphia Inquirer, Pittsburgh Post-Gazette, StateImpact, Associated Press, Philadelphia City Paper.  

Andrew Sharp is PennFuture's Director of Outreach and is based in Philadelphia. He tweets at @RexBainbridge.

Say it ain't so: Corbett's budget calls for more gas leasing of public lands

Governor Tom Corbett delivered his annual budget address this week, along with his proposed FY 2014-15 budget.

The headline: The governor plans to lift a three-year-old moratorium on the further leasing of public lands for gas development to fill a budget gap. The budget factors in $75 million in drilling revenue to be accrued via further leasing of state park and forest lands for gas development.

The Corbett administration refers to the new drilling under public lands as "non-impact" drilling -- because no new well pads will be constructed, according to budget secretary Charles Zogby. It is unclear whether approved, but not yet built, well pads will fall under the moratorium. 

Of course, "non-impact drilling" is a fallacy -- even horizontal drilling without more surface disturbances creates more air pollution, more truck traffic, more water withdrawals, and more toxic waste water. And drilling just outside park or forest boundaries creates real risks for these public lands should spills or other accidents occur. 

Bottom line: Gov. Corbett is attempting to balance the state budget on the backs of our state parks and forest lands when he should be protecting these special places for this and future generations. 

Pennsylvania holds and manages its public lands in trust for all citizens of the Commonwealth, including generations yet to come. We have a responsibility to preserve and protect them, not sell them out for quick cash. 

Also of concern: The diversion of $117.5 million from the state's Oil and Gas Lease Fund (OGLF) as operational budget money for the Department of Conservation and Natural Resources (DCNR). The OGLF was originally designated for conservation, recreation and flood control programs in state parks and forests. 

Governor Corbett is not the first governor to raid the Oil and Gas Lease Fund -- but the practice is growing more alarming as our conservation and natural resource agencies are increasingly reliant on the rapid exploitation of the very resources they should be conserving. 

Governor's Enhance Penn's Woods initiative: Gov. Corbett announced the Enhance Penn's Woods initiative as part of his 2014-2015 budget proposal, allocating $45 million in new funding for parks and infrastructure. 

While moving to enhance public lands is always good news, the question remains as to when a new, and permanent, revenue stream will be put in place to protect Pennsylvania's crown jewels, our public lands. 

Our state parks are not only recreational and cultural assets, they are also an economic driver. For every dollar spent in state parks, thirteen dollars is returned to the economy of Pennsylvania. 

Despite this value, there has been a chronic under-investment in state park and forest resources -- because of this patchwork funding and lack of a consistent revenue stream. 

Corbett proposes DEP staff cut, increase in funding: The governor proposed a $10 million increase in general fund support for the Department of Environmental Protection (DEP), from $129.8 million to $139.9 million. (For context, the DEP general fund budget was $245.6 million in 2002-2003.)**

Yet, he also proposed slashing 66 jobs at DEP — the agency tasked with policing the gas industry and protecting our air, land, and water. DEP has seen a 17 percent decrease in staffing over the past decade. 

It's hard to fathom how Pennsylvania is supposed to regulate an expanding industry with decreasing manpower. 

** Correction: In our original publication, we stated that that Governor Corbett proposed to increase the DEP’s 2014-15 funding to $136.7 million, while noting that the DEP’s total budget in 2002-2003 was more than $700 million. While true, this statement was confusing because $136.7 million is not the DEP’s proposed total 2014-2015 budget – only the share of the budget that would come from the general fund. The DEP’s total budget for 2014-2015 (including special fund monies and federal appropriations, as well as general fund monies) is proposed to be $689.3 million. By contrast, the DEP’s 2002-2003 budget was $728.3 million, or about $922 million in inflation-adjusted dollars.

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

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. 

VICTORY: In addition to saving a stream, UMCO set important legal precedent

This post is one in a month-long series speaking to 15 of PennFuture's significant victories. It was 15 years ago this September that we began our work to protect the environment and champion a clean energy economy.

Once upon a time (actually around 2004), there was a mine owner named Bob Murray who operated a longwall mine in Washington County, Pennsylvania known as the High Quality Mine. It was a shallow mine as far as longwall mining was concerned - as shallow as 210 feet below the ground surface - and, like many underground mines in Washington County, it crossed under a number of springs, seeps and streams.

Bob Murray - also part owner of

the Crandall Canyon Mine, where

six miners died in August 2007.

By the time PennFuture was asked by local citizens to get involved in the matter, we found that the Department of Environmental Protection (DEP) had been permitting the mine in a very unusual way. Instead of issuing a single permit that comprehensively looked at the impacts of the entire mine, DEP was segmenting the project into individual authorizations that only looked at the environmental impacts from the next longwall panel. The streams that flowed over the mine were fed by shallow, perched groundwater zones. This was significant because this shallow source water could be permanently redirected away from the stream by mine subsidence fractures.

When PennFuture entered the scene, Murray's company, UMCO Energy, Inc., had completely eliminated every spring and seep above the portion of the mine that had been completed, including eradication of the flow in an unnamed tributary to Maple Creek known as the 5E stream, and DEP was proposing to allow UMCO to continue mining under, and no doubt eliminating, the next tributary that would be encountered, the 6E stream. 

For more than two years, PennFuture pursued litigation on behalf of local citizens that were concerned about the permanent impacts of the mine on local streams. Through a series of actions filed with the Environmental Hearing Board and an appeal to Commonwealth Court, PennFuture not only prevented DEP from continuing to permit the mine and the subsequent destruction of the springs, seeps and streams in the Maple Creek watershed, it also established important legal precedent on how DEP permits longwall mines.

In particular, the UMCO proceedings established that DEP had to comprehensively consider the effects of all anticipated mining on area hydrology, and could not make decisions based on an artificially narrow and segmented approach. In its supersedeas decision, Judge Labuskes of the Board chided the agency for its slanted approach, saying that it would not surprise anyone that the hydrologic impacts of a mine would appear insignificant if you focused only on small, isolated portions of the mine rather than looking holistically at the full impact of the entire operation.

The case represented a significant decision for Maple Creek and its tributaries, and had a lasting impact on how DEP permits mines in Pennsylvania.

PennFuture will celebrate 15 years of environmental victories on September 25. Please consider joining us! 

A primer on the Center for Sustainable Shale Development (CSSD)

PennFuture and four other environmental groups - the  Group against Smog and Pollution, Pennsylvania Environmental Council, Clean Air Task Force and Environmental Defense Fund - have endorsed a set of fifteen environmental protection standards developed with several large shale gas producers in the Marcellus region: Chevron, Shell, EQT and CONSOL. At the core of the nascent Center for Sustainable Shale Development (CSSD), these standards were the result of two years of collaboration that included research assistance from the Lawrence Livermore National Laboratory and ICF International, both world experts on oil and gas environmental risk management. The initial effort was funded by two foundations, the Heinz Endowments and William Penn Foundation, as well as participating gas companies.

The initial fifteen standards - eight concerning water and seven air  - are intended to be more stringent than current federal and state standards in the Appalachian Basin. Examples include:

• zero discharge of wastewater to surface and ground waters until a safe treatment standard has been developed;
• a 90 percent wastewater recycling requirement within two years;
• eliminating the use of open pits at well pads within two years;
• operators must characterize area geology, perform a risk assessment to protect against fluid migration, and ensure surface and ground water quality is not impacted;
• use well casings and cement to prevent migration of fluids and contamination of ground water;
• use of green completions to substantially eliminate flaring of well head gas by January 2014; and
• compliance with tight air emission standards for all diesel engines used in drilling and any trucks servicing a well pad.

CSSD's members have committed to regularly review existing standards, and will develop additional standards to protect air, land and water.

PennFuture joined in developing and endorsing these standards because it is our mission to protect the environment, and we believe these standards will advance that mission. It is important that four of the major gas producers in Pennsylvania have agreed to meet these standards because it shows that tougher environmental standards for gas drilling in Pennsylvania are economically feasible.

These standards are not a substitute for improved federal and state laws, or for rigorous enforcement of existing laws. That is why PennFuture will continue to advocate for tough, common sense standards to protect our land, air and water - including no drilling in Pennsylvania's State Parks - and take action to enforce existing laws when the Department of Environmental Protection (DEP) does not.

PennFuture understands that some environmental organizations categorically oppose the extraction of unconventional gas, in part on the theory that more gas leads to greater air pollution and climate change. Certainly, natural gas should not be the only way we produce power in the United States. However, while the data is still unclear on the benefits of natural gas over coal as far as climate change is concerned, there can be no doubt that gas offers a better alternative when it comes to acid mine drainage, mercury and sulfur emissions.

Coal, oil and gas still comprise about 82 percent of U.S. energy demand. PennFuture works hard to reduce that percentage by advocating for energy conservation and use of renewables. But so long as the nation relies on fossil fuels for electric power, it is our obligation to protect the environment while those non-renewable resources are being extracted.

These new standards could play an important role in minimizing the harm caused by continued reliance on fossil fuels.  That is why PennFuture participated in the process.