RULES AND REGULATIONS
Title 25—ENVIRONMENTAL PROTECTION
ENVIRONMENTAL QUALITY BOARD
[ 25 PA. CODE CHS. 78 AND 78a ]
Environmental Protection Performance Standards at Oil and Gas Well Sites
[46 Pa.B. 6431]
[Saturday, October 8, 2016]The Environmental Quality Board (Board) amends Chapter 78 (relating to oil and gas wells) and adds Chapter 78a (relating to unconventional wells) to read as set forth in Annex A. This final-form rulemaking relates to surface activities associated with the development of unconventional wells. The goal of this final-form rulemaking is to set performance standards for surface activities associated with the development of unconventional wells and to prevent and minimize spills and releases to the environment to ensure protection of the waters of the Commonwealth, public health and safety, and the environment.
This final-form rulemaking represents the first update to rules governing surface activities associated with the development of unconventional wells. This final-form rulemaking adds Chapter 78a to establish the requirements for unconventional well development and amends Chapter 78 to delete any conflicting requirements that remained in that chapter for unconventional wells.
Major areas of this final-form rulemaking in Chapter 78a include public resource impact screening, water supply replacement standards, waste management and disposal, and establishing identification and select monitoring of wells located proximal to hydraulic fracturing activities. Other new regulations include standards for well development impoundments, a process for the closure or waste permitting for wastewater impoundments, onsite wastewater processing, site restoration, standards for borrow pits, and reporting and remediating spills and releases.
Chapter 78a also contains requirements for the containment of regulated substances, oil and gas gathering pipelines, well development pipelines and water management plans (WMP).
On February 3, 2016, the Board adopted the pre-Act 52 regulations containing two separate chapters—one for conventional oil and gas wells (Chapter 78) and the other for unconventional wells (Chapter 78a).
The Department of Environmental Protection (Department) delivered the pre-Act 52 final-form regulations to IRRC and the House and Senate Environmental Resources and Energy Committees on March 3, 2016. On April 12, 2016, the House and Senate Environmental Resources and Energy Committees voted to disapprove the pre-Act 52 final-form regulations and notified IRRC and the Board. On April 21, 2016, IRRC held a public hearing to consider the pre-Act 52 final-form regulations and approved it in a 3-2 vote. On May 3, 2016, the House Environmental Resources and Energy Committee voted to report a concurrent resolution to disapprove the pre-Act 52 final-form regulations approved by IRRC to the General Assembly. The concurrent resolution was not passed by the General Assembly within 30 calendar days or 10 legislative days from the reporting of the concurrent resolution.
The act of June 23, 2016 (P.L. 379, No. 52 (Act 52)) abrogated the pre-Act 52 final-form regulations ''insofar as such regulations pertain to conventional oil and gas wells.''
The Department delivered the pre-Act 52 final-form regulations to the Office of Attorney General for form and legality review on June 27, 2016. In accordance with the Regulatory Review Act (71 P.S. §§ 745.1—745.14) and the Commonwealth Attorneys Act (71 P.S. §§ 732-101—732-506), the Office of Attorney General directed the Department to make changes to the pre-Act 52 final-form regulations to comply with Act 52. Specifically, the Office of Attorney General directed the Department to comply with Act 52 by removing all amendments or additions to the final-form regulations in Chapter 78 regarding conventional oil and gas wells prior to resubmission to the Office of Attorney General for review. Additionally, the Office of Attorney General directed the Department to retain all deletions and modifications within the pre-Act 52 final-form regulations of Chapter 78 that related to the unconventional oil and gas industry and to ensure that the requirements in the final-form rulemaking in Chapter 78a supersede any conflicting requirements in Chapter 78. The Office of Attorney General also objected to several typographical errors and sought corrections and clarifications to the following provisions: the definition of ''mine influenced water'' in § 78a.1 (relating to definitions) and §§ 78a.13(a), 78a.17(b), 78a.65(b)(8), 78a.67(c)(2), 78a.75(a), 78a.75a(a), 78a.83(a)(2), 78a.83b(a)(1), 78a.87(b), 78a.88(c), (d), (d)(1) and (2), 78a.91(a) and 78a.101.
On July 26, 2016, the Department resubmitted this final-form rulemaking to the Office of Attorney General for review. In accordance with the Office of Attorney General's direction, the Department removed all amendments or additions to Chapter 78 regarding conventional oil and gas wells and retained the deletions and modifications in Chapter 78 that related solely to the unconventional wells. This revised final-form rulemaking also contains clarifications and corrections to respond to other issues identified by the Office of Attorney General, including the addition of § 78a.2 (relating to applicability) to clarify that Chapter 78a supersedes Chapter 78 for unconventional wells to avoid any potential conflict between the requirements in Chapter 78 and Chapter 78a regarding unconventional wells. Later on July 26, 2016, the Office of Attorney General approved this revised final-form rulemaking for form and legality under the Commonwealth Attorneys Act. The final-form rulemaking in Annex A is the revised final-form rulemaking as approved by the Office of Attorney General. This preamble was revised to reflect the final-form rulemaking as approved by the Office of Attorney General in conformance with Act 52.
The Joint Committee on Documents met on August 18, 2016, and voted to direct the Legislative Reference Bureau (Bureau) to publish this final-form rulemaking.
A. Effective Date
This final-form rulemaking will be effective upon publication in the Pennsylvania Bulletin.
B. Contact Persons
For further information, contact Kurt Klapkowski, Director, Bureau of Oil and Gas Planning and Program Management, Rachel Carson State Office Building, 15th Floor, 400 Market Street, P.O. Box 8765, Harrisburg, PA 17105-8765, (717) 772-2199; or Elizabeth Davis, Assistant Counsel, Bureau of Regulatory Counsel, P.O. Box 8464, Rachel Carson State Office Building, Harrisburg, PA 17105-8464, (717) 787-7060. Persons with a disability may use the Pennsylvania AT&T Relay Service, (800) 654-5984 (TDD users) or (800) 654-5988 (voice users). This final-form rulemaking is available on the Department's web site at www.dep.pa.gov (select ''Public Participation,'' then ''Environmental Quality Board (EQB)'').
C. Statutory Authority
This final-form rulemaking is being made under the authority of 58 Pa.C.S. §§ 3202, 3215(e), 3218(a), 3218.2(a)(4), 3218.4(c) and 3274, section 5 of The Clean Streams Law (35 P.S. § 691.5), section 105 of the Solid Waste Management Act (SWMA) (35 P.S. § 6018.105), section 5 of the Dam Safety and Encroachments Act (32 P.S. § 693.5), section 104 of the Land Recycling and Environmental Remediation Standards Act (Act 2) (35 P.S. § 6026.104), sections 301 and 302 of the Radiation Protection Act (35 P.S. §§ 7110.301 and 7110.302), section 3 of the Unconventional Well Report Act (58 P.S. § 1003), section 13.2 of the act of July 10, 2014 (P.L. 1053, No. 126) (Act 126) adding section 1741.1-E of The Fiscal Code (72 P.S. § 1741.1-E) and sections 1917-A and 1920-A of The Administrative Code of 1929 (71 P.S. §§ 510-17 and 510-20).
D. Background and Summary
This final-form rulemaking amends the oil and gas well regulations and adds additional controls to the surface activities associated with the development of unconventional well sites.
This final-form rulemaking is needed to ensure that surface activities regarding the development of unconventional wells are conducted in a manner that protects the health, safety and environment of citizens in this Commonwealth consistent with the environmental laws that provide authority for this final-form rulemaking. The surface activities requirements in Chapter 78, Subchapter C (relating to environmental protection performance standards) were last updated in 2001, prior to the significant expansion of natural gas development utilizing enhanced drilling techniques to target the Marcellus Shale formation. This final-form rulemaking is needed for several specific reasons, including: (1) statutory changes and new environmental protection standards for unconventional wells resulting from the passage of 58 Pa.C.S. Chapter 32 (relating to development) (2012 Oil and Gas Act) including: direction to promulgate specific regulations; (2) new technologies associated with extracting natural gas from unconventional formations; (3) changes in the Department's other regulatory programs; (4) environmental protection gaps in the Department's existing regulatory program currently addressed through policy or other means; and (5) recommendations from State Review of Oil and Natural Gas Environmental Regulations (STRONGER) regarding the potential risk of hydraulic fracturing communication.
Because unconventional well drilling occurs in over 60% of this Commonwealth and pipeline activities occur throughout this entire Commonwealth, all of its citizens will benefit from more robust and comprehensive regulations. The regulated community will benefit from this final-form rulemaking because it streamlines authorizations and approval processes and establishes performance based requirements that will avoid or minimize environmental impacts which can be costly to remediate. Many of the environmental performance standards in this final-form rulemaking are either a codification of current statutory or permit requirements, or are already standard industry practices. As a whole, this final-form rulemaking will strengthen measures aimed at reducing the potential impacts that oil and gas activities may have on the environment.
The Department also notes that there are several areas in this final-form rulemaking where current policies and practices are codified into regulation. This should provide significant benefits for several reasons. First, by having these policies expressed in regulation, all parties—the public, unconventional operators, Department staff, service companies, and the like—will be able to have a transparent, up-front, black-and-white understanding of the standards of performance that apply to oil and gas development in this Commonwealth. Having these policies and practices codified into Chapter 78a will establish binding norms as regulations have the force and effect of law and enjoy a general presumption of reasonableness. When a policy or practice has been in effect for a significant amount of time, it may be appropriate to move to codify it into regulation. Significant examples of these subjects abound in this final-form rulemaking:
• Section 78a.17(a) (relating to permit expiration and renewal), which codifies the Department's interpretation of the phrase ''pursued with due diligence'' in section 3211(i) of the 2012 Oil and Gas Act (relating to well permits).
• Section 78a.51 (relating to protection of water supplies), which codifies the Department's interpretation of water supply replacement quality standards under section 3218(a) of the 2012 Oil and Gas Act (relating to protection of water supplies).
• Section 78a.55 (relating to control and disposal planning; emergency response for unconventional wells), which codifies the Department's current position regarding the development and maintenance of Preparedness, Prevention and Contingency (PPC) plans for well sites.
• Sections 78a.56 and 78a.57 (relating to temporary storage; and control, storage and disposal of production fluids), which codify the Department's current policies regarding management of waste on unconventional well sites and the interpretation of section 3273.1(a) of the 2012 Oil and Gas Act (relating to relationship to solid waste and surface mining).
• Section 78a.58 (relating to onsite processing), which codifies the Department's current approval process for onsite waste processing.
• Section 78a.59c (relating to centralized impoundments), which codifies the Department's position regarding the proper regulation of offsite waste management operations.
• Section 78a.65 (relating to site restoration), which codifies the Department's positions regarding well site restoration under Chapter 102 (relating to erosion and sediment control) and section 3216 of the 2012 Oil and Gas Act (relating to well site restoration).
• Section 78a.66 (relating to reporting and remediating spills and releases), which codifies the Department's interpretation of existing requirements for reporting and remediating releases.
• Section 78a.67 (relating to borrow pits), which codifies the Department's interpretation of the borrow pit exemption outlined in section 3273.1(b) of the 2012 Oil and Gas Act.
• Section 78a.122 (relating to well record and completion report), which codifies the Department's current well record and completion report requirements in accordance with section 3222 of the 2012 Oil and Gas Act (relating to well reporting requirements) and section 3 of the Unconventional Well Reporting Act.
Having these policies, practices, interpretations and procedures codified into regulations in a single location—as opposed to scattered throughout factsheets, application and approval forms and instructions, statements of policy and technical guidance documents, Department letters and webpages—will provide transparency and allow all parties to understand the requirements that apply to this industry.
Bifurcation
As part of this final-form rulemaking, in response to comments and Act 126, the Department split Chapter 78 into two separate chapters—one for conventional oil and gas wells (Chapter 78) and the other for unconventional wells (Chapter 78a). The purpose of this bifurcation was to clarify the different requirements for conventional and unconventional wells. The Department believes that having two completely separate chapters should serve to eliminate any confusion about what requirements apply to conventional and unconventional wells. In addition, having separate chapters allows the Department to craft regulations to match the environmental risks posed by each segment of the industry (compare, for example, § 78.56 (relating to pits and tanks for temporary containment) and § 78a.56, which contain significantly different requirements for temporary storage at conventional and unconventional well sites, respectively). To clearly summarize these regulations, the Department will discuss each chapter in Sections E and F.
(Department Note: All amendments or additions to Chapter 78 regarding conventional oil and gas wells were removed from this final-form rulemaking in accordance with the direction of the Office of Attorney General to comply with Act 52. The amendments in Chapter 78 are limited to deletions of the provisions regarding unconventional wells.)
Public outreach
The Department engaged in significant discourse with the Oil and Gas Technical Advisory Board (TAB) and other groups during the development of the proposed and final-form rulemakings. The initial public discussion of what became this final-form rulemaking occurred at TAB's January 21, 2010, meeting, where the Department presented an overview of subjects to be addressed in this final-form rulemaking. At TAB's April 12, 2011, and October 21, 2011, meetings, the Department again discussed topics to be included in this final-form rulemaking as well as providing TAB with updates on the Department's development of the draft proposed rulemaking.
On February 16, 2012, the Department presented TAB with a detailed conceptual summary of the proposed amendments addressing surface activities to Chapter 78. After the enactment of the 2012 Oil and Gas Act, this detailed summary was revised and discussed again with TAB on August 15, 2012.
The Department met with other industry representative groups on several occasions during the development of the draft proposed rulemaking, including: the Marcellus Shale Coalition, which is mostly comprised of businesses representing unconventional drillers; the Pennsylvania Independent Oil and Gas Association, which represents unconventional and conventional drillers; and Pennsylvania Independent Petroleum Producers, which represents conventional oil industry, the Pennsylvania chapter of the American Petroleum Institute, and individual operators and midstream companies. In addition, the Department held regular meetings with industry representatives quarterly throughout the entire pendency of this final-form rulemaking. This final-form rulemaking generally and specific individual topics addressed by this final-form rulemaking were standard agenda items at these meetings.
Local government organizations were also involved in discussions of the proposed rulemaking, including then-Lycoming County Commissioner Jeff C. Wheeland, the Pennsylvania State Association of Township Supervisors and the Pennsylvania State Association of Boroughs.
The Department also involved several environmental organizations in the development of the proposed rulemaking, including the Chesapeake Bay Foundation, the Western Pennsylvania Conservancy, The Nature Conservancy and the Pennsylvania Environmental Council. In addition, the Department held regular meetings with environmental organization representatives (including Clean Water Action and the Delaware Riverkeeper) quarterly throughout the entire pendency of this final-form rulemaking. This final-form rulemaking generally and specific individual topics addressed by this final-form rulemaking were standard agenda items at these meetings.
The Department also consulted with other State agencies during the development of the proposed and draft final-form regulations, including the Department of Transportation, the Department of Conservation and Natural Resources, the Fish and Boat Commission, the Game Commission and the Pennsylvania Historical and Museum Commission.
A draft of the proposed rulemaking was shared with TAB members in December 2012, and a revised version of the draft proposed rulemaking was discussed at the TAB meeting on February 20, 2013. In response to TAB's comments, the Department again revised the draft proposed rulemaking and presented it to TAB on April 23, 2013, for formal consideration. At the April 23, 2013, meeting, TAB voted unanimously, with one member absent, to recommend that the Board publish the proposed rulemaking for public comment.
Following the April 2013 TAB meeting, the Department continued discussions on the topics in the proposed rulemaking at TAB's June 12, 2013, meeting. At that meeting, TAB subcommittees were established and future meetings scheduled. On two occasions, those TAB subcommittees met to consider public resource impact permit screening, water supply replacement, the general topic of waste management and the area of review requirements—July 17 and 18, 2013 (Greensburg, PA) and August 14 and 15, 2013 (State College, PA). Participants in those meetings included associations representing the conventional and unconventional industries, consultants, attorneys, environmental groups and members of the public.
Following publication of the proposed rulemaking at 43 Pa.B. 7377 (December 14, 2013) for public comment and the close of the 90-day public comment period, the Department discussed the comments received as well as the draft final-form regulations with TAB at its June 26, 2014, meeting. At the September 25, 2014, TAB meeting, the Department discussed splitting the regulations into two individual chapters and significant changes to the regulations, especially to the extent those changes concerned conventional operators.
In terms of this final-form rulemaking, the Department discussed the draft final-form regulations announced under the Advanced Notice of Final Rulemaking (ANFR) process with TAB at meetings on March 20, 2015, and April 23, 2015. Following the close of the ANFR public comment period, the Department released the pre-Act 52 final-form regulations, which it discussed with TAB on September 2, 2015. TAB suggested changes to that document, so the Department considered those requests and further amended the pre-Act 52 final-form regulations and discussed those changes with TAB members during a webinar held on September 18, 2015. Additional changes to the pre-Act 52 regulations resulted from suggestions made during that webinar. The Department presented the pre-Act 52 final-form regulations to TAB at its October 27, 2015, meeting. On October 27, 2015, TAB voted unanimously to move the pre-Act 52 final-form regulations to the Board without expressing support or disapproval and indicated they would be presenting a report on the pre-Act 52 final-form regulations to the Board. On January 6, 2016, TAB submitted a report on the pre-Act 52 final-form regulations to the Board. A copy of this report is available on the Department's web site or from the contact persons listed in Section B.
The Department also discussed the draft final-form regulations with the Conventional Oil and Gas Advisory Committee (COGAC) in 2015. The Department formed COGAC in March 2015 to have an advisory body that was focused solely on the issues confronting the conventional oil and gas industry. The Department discussed the comments received on the proposed rulemaking and the ANFR final-form regulations with COGAC on March 26, 2015. Following the close of the ANFR public comment period, the Department released the pre-Act 52 final-form regulations, which it discussed with COGAC on August 27, 2015. COGAC suggested changes to that document, so the Department considered those requests and further amended the pre-Act 52 final-form regulations and discussed those changes with COGAC members during a webinar held on September 18, 2015. Additional changes to the draft pre-Act 52 final-form regulations resulted from suggestions made during that webinar. The Department presented the pre-Act 52 final-form regulations to COGAC at its October 29, 2015, meeting. At that meeting, COGAC adopted a resolution recommending the Board disapproval of the pre-Act 52 final-form regulations as it applied to conventional operators. At a meeting on December 22, 2015, COGAC adopted comments to the Board on the pre-Act 52 final-form regulations urging disapproval. A copy of that document is available on the Department's web site or from the contact persons listed in Section B.
On January 6, 2016, the Department submitted the pre-Act 52 final-form regulations to the Board for review and consideration. At its meeting on February 3, 2016, the Board approved the pre-Act 52 regulations by a vote of 15-4. The Department delivered the pre-Act 52 final-form regulations to IRRC and the House and Senate Environmental Resources and Energy Committees on March 3, 2016. On April 12, 2016, the House and Senate Environmental Resources and Energy Committees voted to disapprove the pre-Act 52 final-form regulations and notified IRRC and the Board. On April 21, 2016, IRRC held a public hearing to consider the pre-Act 52 regulations and approved it in a 3-2 vote. On May 3, 2016, the House Environmental Resources and Energy Committee voted to report a concurrent resolution to disapprove the pre-Act 52 final-form regulations approved by IRRC to the General Assembly. The concurrent resolution was not passed by the General Assembly within 30 calendar days or 10 legislative days from the reporting of the concurrent resolution.
On June 23, 2016, Act 52 was enacted establishing the Pennsylvania Grade Crude Development Advisory Council and abrogating the rulemaking concerning standards at oil and gas well sites approved by the Board in 2016 prior to the effective date of Act 52 ''insofar as such regulations pertain to conventional oil and gas wells.''
The Department delivered the pre-Act 52 final-form regulations to the Office of Attorney General for form and legality review on June 27, 2016. In accordance with the Regulatory Review Act and the Commonwealth Attorneys Act, the Office of Attorney General directed the Department to make changes to the pre-Act 52 final-form regulations to comply with Act 52. Specifically, the Office of Attorney General directed the Department to comply with Act 52 by removing all amendments or additions to the final-form regulations in Chapter 78 regarding conventional oil and gas wells prior to resubmission to the Office of Attorney General for review. Additionally, the Office of Attorney General directed the Department to retain all deletions and modifications within the pre-Act 52 final-form regulations of Chapter 78 that relate to the unconventional oil and gas industry and to ensure that the requirements in the final-form rulemaking in Chapter 78a supersede any conflicting requirements in Chapter 78. The Office of Attorney General also objected to several typographical errors and sought corrections and clarifications to the following provisions: the definition of ''mine influenced water'' in § 78a.1, §§ 78a.13(a), 78a.17(b), 78a.65(b)(8), 78a.67(c)(2), 78a.75(a), 78a.75a(a), 78a.83(a)(2), 78a.83b(a)(1), 78a.87(b), 78a.88(c), (d), (d)(1) and (2), 78a.91(a) and 78a.101.
On July 26, 2016, the Department resubmitted this final-form rulemaking to the Office of Attorney General for review. In accordance with the Office of Attorney General's direction, the Department removed all amendments or additions to Chapter 78 regarding conventional oil and gas wells and retained the deletions and modifications in Chapter 78 that related solely to the unconventional wells. This revised final-form rulemaking also contains clarifications and corrections to respond to other issues identified by the Office of Attorney General, including the addition of § 78a.2 to clarify that Chapter 78a supersedes Chapter 78 for unconventional wells to avoid any potential conflict between the requirements in Chapter 78 and Chapter 78a regarding unconventional wells. Later on July 26, 2016, the Office of Attorney General approved this revised final-form rulemaking for form and legality under the Commonwealth Attorneys Act. The final-form rulemaking in Annex A is the revised final-form rulemaking as approved by the Office of Attorney General. This preamble was revised to reflect the final-form rulemaking as approved by the Office of Attorney General in conformance with Act 52.
The Joint Committee on Documents met on August 18, 2016, and voted to direct the Bureau to publish this final-form rulemaking.
E. Summary of Regulatory Requirements
As noted in Section D, in response to comments and Act 126, this final-form rulemaking contains new Chapter 78a for unconventional wells and amendments to Chapter 78 to delete conflicting requirements for unconventional wells to clarify that Chapter 78a supersedes Chapter 78 regarding unconventional wells. To clearly summarize these regulations, the Department will discuss each chapter in turn.
There are many sections in Chapter 78a that were not amended by this final-form rulemaking, but were carried over from existing Chapter 78 because they apply equally to conventional and unconventional well operations. Excellent examples of both of these nonsubstantive changes are the well plugging regulations in §§ 78a.91—78a.98 (relating to plugging). The only changes to these sections in Chapter 78a are to correct statutory citations necessitated by the passage of the 2012 Oil and Gas Act. These sections are repeated in their entirety in Chapter 78a, with proper cross-references to other sections in Chapter 78a.
Chapter 78. Oil and gas wells
§ 78.1. Definitions
The definitions of ''nonvertical unconventional well'' and ''vertical unconventional well'' are deleted from this section.
§ 78.19. Permit application fee schedule
This section is amended to delete unconventional well permit application fees.
§ 78.55. Control and disposal planning
This section is amended to delete subsection (f), which related exclusively to emergency response planning for unconventional wells.
§ 78.72. Use of safety devices—blow-out prevention equipment
Subsections (a)(1) and (j) are deleted as the blow-out prevention provisions only applied to unconventional wells. This section is renumbered accordingly.
§ 78.121. Production reporting
Subsection (a) is amended to delete reporting requirements for unconventional wells. The final sentence of the section regarding electronic reporting of production data is renumbered as subsection (b).
Chapter 78a. Unconventional wells
§ 78a.1. Definitions
This final-form rulemaking contains new or revised definitions for ''ABACT—antidegradation best available combination of technologies,'' ''abandoned water well,'' ''accredited laboratory,'' ''Act 2,'' ''anti-icing,'' ''approximate original conditions,'' ''barrel,'' ''body of water,'' ''borrow pit,'' ''building,'' ''centralized impoundment,'' ''certified mail,'' ''common areas of a school's property,'' ''condensate,'' ''de-icing,'' ''floodplain,'' ''freeboard,'' ''gathering pipeline,'' ''inactive well,'' ''limit of disturbance,'' ''modular aboveground storage structure,'' ''oil and gas operations,'' ''other critical communities,'' ''PCSM—post-construction stormwater management,'' ''PCSM plan,'' ''PNDI—Pennsylvania Natural Diversity Inventory,'' ''PNDI receipt,'' ''PPC plan—Preparedness, Prevention and Contingency plan,'' ''pit,'' ''playground,'' ''pre-wetting,'' ''primary containment,'' ''process or processing,'' ''public resource agency,'' ''regional groundwater table,'' ''regulated substance,'' ''residual waste,'' ''secondary containment,'' ''stormwater,'' ''threatened or endangered species,'' ''WMP—water management plan,'' ''watercourse,'' ''waters of the Commonwealth,'' ''well development impoundment,'' ''well development pipelines'' ''wellhead protection area'' and ''wetland.''
Under statutory changes in the 2012 Oil and Gas Act, this final-form rulemaking provides new definitions for ''act,'' ''owner,'' ''public water supply,'' ''water purveyor,'' ''water source'' and ''well operator or operator.''
The definition of ''mine influenced water'' was ameded in this final-form rulemaking at the direction of the Office of Attorney General to address concerns that the definition in the pre-Act 52 final-form regulations did not establish a binding norm. The language in this final-form rulemaking matches the standards established in § 105.3(a)(3) (relating to scope).
§ 78a.2. Applicability
This section is added to clarify that Chapter 78a applies to unconventional wells and that Chapter 78a supersedes any regulations in Chapter 78 that might appear to apply to unconventional wells. This change was made at the direction of the Office of Attorney General.
§ 78a.15. Application requirements
The revisions to subsection (a) require well permit applications to be submitted electronically through the Department's web site.
Subsection (b.1) establishes that if the proposed limit of disturbance is within 100 feet measured horizontally from any watercourse or any high quality or exceptional value body of water or any wetland greater than 1 acre in size, the applicant shall demonstrate that the well site location will protect that watercourse or bodies of water. This provision is needed to ensure protection of waters of the Commonwealth—especially in light of the Supreme Court's decision in Robinson Twp. v. Commonwealth, 83 A.3d 901 (Pa. 2013) (Robinson Twp.) enjoining the application of the setbacks in section 3215(b) of the 2012 Oil and Gas Act (relating to well location restrictions). Operators can demonstrate that they will be protective of waters of the Commonwealth in several ways, including obtaining other permits or providing appropriate plans.
Subsection (c) is added to address statutory changes in the 2012 Oil and Gas Act that require the Department to review a well permit applicant's parent and subsidiary corporations' compliance history for operations in this Commonwealth.
Subsection (d) is added to address well permit applicants to consult with the Pennsylvania Natural Heritage Program regarding the presence of State or Federal threatened or endangered species where the proposed well site or access road will be located and outlines a process to address any adverse impacts. Many well permit applicants address impacts to threatened or endangered species when fulfilling their permitting obligations under Chapter 102. For that reason, subsection (e) is added to specify that compliance with §§ 102.5 and 102.6(a)(2) (relating to permit requirements; and permit applications and fees) is deemed to comply with the requirements to address threatened or endangered species as part of the well permit application process.
Subsection (f) outlines a process for the Department to consider the impacts to public resources when making a determination on a well permit in accordance with the Department's constitutional and statutory obligations to protect public resources. Subsection (f) requires well permit applicants to identify when the proposed well site or access road may impact a listed public resource, notify applicable public resource agencies, and provide the Department and the public resource agencies with a description of the functions and uses of the public resources and avoidance or mitigation measures to be taken, if any. This section also provides applicable public resource agencies the opportunity to submit comments to the Department, including any recommendations to avoid or minimize impacts, during a 30-day time frame. The Department notes that these provisions do not necessarily amount to setbacks, and are intended to protect the use and function of the particular public resource.
Subsection (g) provides the criteria the Department will consider when deciding whether to impose conditions on a well permit necessary to prevent a probable harmful impact to public resources.
Antidegradation requirements in Chapter 93 (relating to water quality standards) are reflected in subsection (h). This subsection requires a well permit applicant proposing to drill a well that involves 1 to 5 acres of earth disturbance over the life of the project that is located in a special protection watershed to submit an erosion and sediment control plan with the well permit application. These provisions seek to codify an existing component of the well permit application and are necessary to ensure that the Department meets its antidegradation requirements in Chapter 93.
§ 78a.17. Permit expiration and renewal
This section codifies the Department's interpretation of the permit requirements established by section 3211(i) of the 2012 Oil and Gas Act. Permits will expire unless drilling is started within 1 year of permit issuance. If drilling is started within 1 year, operators shall pursue drilling ''with due diligence'' or the permit will expire. Subsection (a) sets that expiration at 16 months from permit issuance unless an extension for good cause is obtained. Operators can also apply for a single 2-year renewal under subsection (b), and any new buildings or water wells installed after the initial permit was issued must be included on the renewal plat but do not block renewal of the permit.
§ 78a.18. Disposal and enhanced recovery well permits
Because disposal and enhanced recovery wells are by definition ''conventional wells,'' this section refers operators to the requirements in § 78.18 (relating to disposal and enhanced recovery well permits). This section might come into play when an operator chooses to convert an unconventional well regulated by Chapter 78a into a disposal or enhanced recovery well regulated under Chapter 78.
§ 78a.51. Protection of water supplies
The amendments clarify that the presumption of liability established in section 3218(c) of the 2012 Oil and Gas Act does not apply to pollution resulting from well site construction activities. Subsection (c) also mirrors the statutory language stating that the presumption applies whenever impacts occur ''as a result of completion, drilling, stimulation or alteration of the unconventional well.''
The 2012 Oil and Gas Act established a new provision that specifies a restored or replaced water supplies must meet the standards in the Pennsylvania Safe Drinking Water Act (SDWA) (35 P.S. §§ 721.1—721.17) or be comparable to the quality of the water supply before it was affected if that water was of a higher quality than those standards. This section amended to reflect this statutory language.
§ 78a.52. Predrilling or prealteration survey
The amendments to subsection (d) establish a new process for submitting predrill sample results to the Department and applicable water users. Under this process, an operator electing to preserve its defenses under section 3218(d)(2)(i) of the 2012 Oil and Gas Act shall submit all sample results taken as part of a survey to the Department within 10 business days of receipt of all the sample results taken as part of that survey. The current practice is to require submission with 10 days of receipt of each individual sample result, leading to piecemeal submissions. A copy of sample results shall be provided to water users within 10 business days of receipt of the sample results.
Subsection (g) reflects new 2012 Oil and Gas Act requirements that unconventional well operators provide written notice to water supply owners that the presumption established in section 3218(c) of the 2012 Oil and Gas Act may be void if the landowner or water purveyor refuses to allow the operator access to conduct a predrilling or prealteration survey and provided that the operator submits proof of the notice to the Department.
§ 78a.52a. Area of review
This section requires operators to identify abandoned, orphan, active and inactive wells within 1,000 feet of the vertical and horizontal wellbore prior to hydraulic fracturing. The identification process requires operators to review the Department's orphan and abandoned well database, review farm line maps and submit a questionnaire to landowners whose property lies within the prescribed area of review prior to drilling in cases where hydraulic fracturing activities are anticipated at the well site. Other available databases and historical sources should also be consulted. The section outlines how operators can conduct this identification, including consulting with the Department's database, farm line maps and submitting a questionnaire to surface landowners. The results of this survey shall be provided to the Department, and under subsection (f) the Department can require additional information or measures as are necessary to protect the waters of the Commonwealth.
§ 78a.53. Erosion and sediment control and stormwater management
The amendments to this section cross-reference the requirements of Chapter 102. This section also specifies that best management practices (BMP) for erosion and sediment control for oil and gas activities are contained in several guidance documents developed by the Department.
§ 78a.55. Control and disposal planning; emergency response for unconventional wells
This section requires all oil and gas well operators to develop and implement a site-specific PPC plan for oil and gas operations. This requirement clarifies existing requirements in § 91.34 (relating to activities utilizing pollutants) and § 102.5(l). Additionally, site-specific PPC plans are needed to address site-specific conditions, including local emergency contact information.
There may be instances when the operator finds that a PPC plan prepared for one well site is applicable to another site. Each individual plan shall be analyzed prior to making this determination. It is not the intent of this final-form rulemaking to require that each PPC plan be separately developed and different for each well site. The Department understands that many of the practices covered in the PPC plan are the same for a given operator. It is also not the intent of this final-form rulemaking to require that all PPC plans be revised annually. In many cases, if conditions at the site do not change, there will not be a need to make revisions to the PPC plan.
The amendments also provide that a PPC plan developed in conformance with the Guidelines for the Development and Implementation of Environmental Emergency Response Plans, Commonwealth of Pennsylvania, Department of Environmental Protection, No. 400-2200-001, as amended and updated, will be deemed to meet the requirements of this section.
§ 78a.56. Temporary storage
As an initial matter, this section's heading is changed from ''pits and tanks for temporary containment'' to ''temporary storage'' to clarify the difference between temporary storage requirements and long-term containment requirements in § 78a.57 and §§ 78a.64 and 78a.64a (relating to secondary containment around oil and condensate tanks; secondary containment). The equipment covered by this section shall be removed in accordance with the requirements of § 78a.65 within 9 months of completion of drilling, accounting for the ''temporary'' nature of this storage.
For unconventional operators, final-form § 78a.56 bans the use of pits for temporary waste storage at well sites. The Department has determined that it is appropriate to remove this practice because it is not commonly used by unconventional operators. Additionally, the typical type and scope of use by unconventional operators is generally incompatible with technical standards for temporary pits prescribed under § 78.56.
Subsection (a)(2) specifies that modular aboveground storage structures may be used to temporarily contain regulated substances upon prior Department approval and notice prior to installation. Modular aboveground storage structures of less than or equal to 20,000 gallons capacity may be used without prior Department approval. The Department will maintain a list of approved modular structures on its web site, although a siting review will still be required for each modular aboveground storage structure.
This final-form rulemaking also includes new monitoring requirements for tanks at unconventional well sites or, in the alternative, valve and access lid requirements for tanks. Additionally, this section establishes new signage requirements for tanks.
§ 78a.57. Control, storage and disposal of production fluids
The amendments to this section prohibit the use of open top structures and pits to store brine and other production fluids generated during the production operations of a well. Existing production pits shall be reported to the Department by April 8, 2017, and properly closed by October 10, 2017. Subsection (a) also codifies the Department's interpretation of the SWMA exemption in section 3273.1 of the 2012 Oil and Gas Act. Only wastes generated at a well site or entirely for beneficial reuse at well site may be stored at that well site without a SWMA permit.
If new, refurbished or replaced tanks are used to store these fluids, these tanks must be equipped with secondary containment. This section also establishes new performance and technical standards for tanks storing brines and other production fluids generated during production operations. Subsection (e) outlines requirements for use of underground or partially buried storage tanks that are used to store brine and other fluids produced during operation of the well.
Subsections (f) and (g) codify the requirement in section 3218.4(b) of the 2012 Oil and Gas Act (relating to corrosion control requirements) that ''permanent aboveground and underground tanks must comply with the applicable corrosion control requirements in the department's storage tank regulations'' by cross-referencing the applicable storage tank regulations in Chapter 245 (relating to administration of the Storage Tank and Spill Prevention Program). Because the Oil and Gas Program does not certify storage tank inspectors, that provision of the storage tank regulation is not explicitly excepted from the cross-reference.
Subsection (h) establishes a monthly tank inspection requirement, similar to the monthly maintenance ''walk-around'' inspections currently required by the storage tank program (see §§ 245.513(b)(2) and 245.613(b) (relating to preventive maintenance and housekeeping requirements; and monitoring standards)).
§ 78a.58. Onsite processing
The amendments establish provisions regarding wastewater processing at well sites, codifying the Department's current approval process for onsite oil and gas waste processing. Subsection (a) allows operators to process fluids generated by oil and gas wells at the well site when the fluids were generated or at the well site when all of the fluid is intended to be beneficially used to develop, drill or stimulate a well upon Department approval. Subsection (b) lists specific activities that do not require Department approval, including mixing fluids with freshwater, aerating fluids or filtering solids from fluids. These activities shall be conducted within secondary containment. Subsection (d) requires an operator processing oil and gas fluids onsite to develop a radiation protection action plan which specifies procedures for monitoring and responding to radioactive material or technologically enhanced naturally occurring radioactive materials (TENORM) produced by the treatment process. This subsection also requires procedures for training, notification, recordkeeping and reporting to be implemented. Subsection (e) specifies that drill cuttings may only be processed at the well site where those drill cuttings were generated, if approved by the Department. Subsection (g) allows for using approved processing facilities at subsequent well sites.
§ 78a.59a. Impoundment embankments
This section contains design and construction standards for well development impoundments, including construction and stabilization requirements for embankments.
§ 78a.59b. Well development impoundments
This section creates registration, performance, and safety and security requirements for well development impoundments. An impervious liner must be used and the bottom of the well development impoundment is required to be 20 inches above the seasonal high groundwater table. Operators shall document the depth of the seasonal high groundwater table, and the manner that it was ascertained. Also, this final-form rulemaking establishes that existing and new well development impoundments shall be registered with the Department and need to be restored within 9 months of completion of hydraulic fracturing of the last well serviced by the impoundment. An extension for restoration may be approved under § 78a.65(c). Land owners may request to the Department in writing that the impoundment embankments not be restored provided that the synthetic liner is removed. Finally, this section contains a process for storing mine influenced water (MIW) in well development impoundments to ensure that it will not result in pollution to waters of the Commonwealth.
§ 78a.59c. Centralized impoundments
By April 8, 2017, operators of existing centralized impoundments authorized by a Dam Permit for a Centralized Impoundment Dam for Oil and Gas Operations permit (DEP # 8000-PM-OOGM0084) shall elect to submit a closure plan to the Department or seek a permit for the facility under Subpart D, Article IX (relating to residual waste management). Subpart D, Article IX contains the requirements for managing residual waste properly, and these requirements apply to residual waste that is generated by any type of industrial, mining or agricultural operation. Operators of existing centralized impoundments shall obtain a waste permit or close the impoundment by October 8, 2019. Any new proposed wastewater storage impoundments shall obtain a permit from the Department's Waste Management Program prior to construction and operation. Subsection (b) establishes requirements for the closure plan and is modeled on facility closure plan requirements in the residual waste regulations.
§ 78a.60. Discharge requirements
The amendments to this section specify that operators discharging tophole water by land application shall document compliance with the regulatory requirements, including those under the Dam Safety and Encroachments Act (32 P.S. §§ 693.1—693.27), make the records available to the Department upon request and submit the relevant information in the well site restoration report. In addition, the amendments add fill or dredged material to this section. Finally, subsection (b)(7) contains limitations on discharges in proximity to watercourses or in the floodplain.
§ 78a.61. Disposal of drill cuttings
This section addresses disposal of drill cuttings on well sites. A distinction is made between cuttings generated above the surface casing seat, which are generally subject to less stringent disposal requirements, and cuttings from below the surface casing seat, which shall be disposed of in accordance with § 78a.62 or § 78a.63 (relating to disposal of residual waste—pits; and disposal of residual waste—land application). The section contains limitations on disposal in proximity to watercourses or in the floodplain. For land application, subsection (b)(9) states that loading and application rate of drill cuttings may not exceed a maximum of drill cuttings to soil ratio of 1:1. For all practical purposes, this limitation means that drill cuttings cannot be disposed of on unconventional well sites.
Under subsection (d), an operator may use solidifiers, dusting, unlined pits, attenuation or other alternative practices with Department approval. The Department will maintain a list of approved solidifiers on its web site, and use of an approved solidifier does not require separate Department review or approval.
Subsection (f) requires notice to the Department prior to disposal of drill cuttings, and notice to the surface landowner of the location and nature of the disposal within 10 business days after completion of disposal.
§ 78a.62. Disposal of residual waste—pits
§ 78a.63. Disposal of residual waste—land application
These sections establish that residual waste, including contaminated drill cuttings, may not be disposed of at an unconventional well site in a pit or through land application unless the operator obtains an individual permit to do so from the Department.
§ 78a.64. Secondary containment around oil and condensate tanks
This section reflects Federal spill prevention, control and countermeasure requirements under the Oil Pollution Act of 1990 (33 U.S.C.A. §§ 2701—2762), and requires secondary containment when a tank or tanks with greater than 1,320 gallons capacity are used on a well site to store oil or condensate. Subsection (e) requires existing condensate tanks to meet the requirements of this section when the tank is replaced, refurbished or repaired, or by October 9, 2018, whichever is sooner.
§ 78a.64a. Secondary containment
This new section requires that unconventional well sites be designed and constructed using containment systems and practices that prevent spills to the ground surface and off the well site in accordance with 2012 Oil and Gas Act requirements. This section specifies when these systems and practices shall be employed. This section specifies secondary containment requirements. Additionally, this section contains provisions regarding subsurface containment systems.
§ 78a.65. Site restoration
This section clarifies the well site restoration requirements, including when restoration is required if there are multiple wells drilled on a single well site and what constitutes a restoration after drilling. The section addresses the interplay between the Chapter 102 requirements and the restoration requirements in section 3216 of the 2012 Oil and Gas Act, which requires well site restoration both post-drilling and post-plugging.
This section largely restates the restoration requirements in section 3216 of the 2012 Oil and Gas Act and incorporates the Department's interpretation of these requirements as outlined in the ''Policy for Erosion and Sediment Control and Stormwater Management for Earth Disturbance Associated with Oil and Gas Exploration, Production, Processing, or Treatment Operations or Transmission Facilities,'' Document No. 800-2100-008, which was finalized on December 29, 2012. Subsection (1) allows operators broad discretion to ensure wells and well sites can be operated safely while also complying with the site restoration requirements in the 2012 Oil and Gas Act.
For post-drilling, the regulation requires restoration of the well site within 9 months after completion of drilling of all permitted wells on the site or within 9 months of the expiration of all existing well permits on the site, whichever is later. For post-plugging, it requires restoration within 9 months after plugging the final well on a well site. The restoration time frames are consistent with requirements in the 2012 Oil and Gas Act.
Operators may request an extension of the restoration time frame because the extension will result in less earth disturbance, increased water reuse or more efficient development of the resources, or if restoration cannot be achieved due to adverse weather conditions or a lack of essential fuel, equipment or labor.
In addition to post-plugging and post-drilling, a well site shall be restored within 9 months after expiration of the drilling permit if the site is constructed and the well is not drilled.
''Areas not restored'' do not fall within the provisions in § 102.8(n) (relating to PCSM requirements) and therefore must meet the requirements, among others, of § 102.8(g). Areas not restored include areas where there are permanent structures or impervious surfaces, therefore runoff produced from these areas must be tributary to permanent post-construction stormwater management (PCSM) BMPs to ensure the runoff will be managed in accordance with the requirements of § 102.8.
Operators do not need to develop written restoration plans for all well sites and this final-form rulemaking requires development of written restoration plans only for well sites which require permit coverage under § 102.5(c).
Drilling supplies and equipment not needed for production may only be stored on the well site if written consent of the landowner is obtained, which is consistent with the requirements in section 3216 of the 2012 Oil and Gas Act.
After restoration, a site restoration report shall be provided to the Department and the surface landowner. Waste disposal information must be included in the site restoration report.
Subsection (g) allows for the satisfaction of the restoration requirements if written consent of the landowner is given provided that the operator develops and implements a site restoration plan that complies with subsections (a) and (b)(2)—(7) and all PCSM requirements in Chapter 102.
§ 78a.66. Reporting and remediating spills and releases
This section clarifies the requirements regarding reporting and remediating spills and releases of regulated substances on or adjacent to well sites and access roads. Subsection (b) establishes two instances when a spill or release shall be reported to the Department: (1) a spill or release of a regulated substance causing or threatening pollution of the waters of the Commonwealth, in the manner required under § 91.33 (relating to incidents causing or threatening pollution); and (2) a spill or release of 5 gallons or more of a regulated substance over a 24-hour period that is not completely contained by secondary containment. These reports shall be made by telephone as soon as practicable but no later than 2 hours after the spill or release was discovered. This section addresses what information must be included in the release report and interim remedial actions that should be taken in the short term following discovery of the spill or release.
This section also clarifies that the operator or responsible party shall remediate an area affected by a spill or release and outlines two different remediation options. Spills of less than 42 gallons to the surface that do not pollute or threaten to pollute waters of the Commonwealth may be remediated by removing the soil visibly impacted by the spill or release and properly managing the impacted soil in accordance with the Department's waste management regulations. Spills or releases of more than 42 gallons to the surface or that pollute or threaten to pollute waters of the Commonwealth shall be remediated to demonstrate attainment of an Act 2 cleanup standard in accordance with the process in subsection (c).
§ 78a.67. Borrow pits
This section provides requirements for noncoal borrow areas for oil and gas well development, including performance, registration and restoration requirements. The section implements the requirements established by section 3273.1(b) of the 2012 Oil and Gas Act, which exempts any borrow area where minerals are extracted solely for the purpose of oil and gas well development, including access road construction from the Noncoal Surface Mining Conservation and Reclamation Act (NSMCRA) (52 P.S. §§ 3301—3326), or a regulation promulgated under the NSMCRA, so long as the owner or operator of the well meets certain conditions. Those conditions are outlined in this section, and include the borrow pit servicing an oil and gas well site where a well is permitted under section 3211 of the 2012 Oil and Gas Act or registered under section 3213 of the 2012 Oil and Gas Act (relating to well registration and identification) and meeting any applicable bonding requirements for wells serviced by the borrow pit. Also, well owners and operators shall operate, maintain and reclaim the borrow pit in accordance with the performance standards in Chapter 77, Subchapter I (relating to environmental protection performance standards).
Subsection (b) requires owners and operators to register the location of existing borrow pits with the Department by December 7, 2016. Subsection (d) requires an inspection of any existing borrow pits by April 6, 2017, and proper restoration or upgrade by October 10, 2017, for any substandard borrow pits.
The section also requires borrow pit restoration or permitting under the NSMCRA within 9 months after completion of drilling the final well on a well site serviced by the borrow pit or 9 months after the expiration of all well permits on well sites serviced by the borrow pit, whichever occurs later.
§ 78a.68. Oil and gas gathering pipelines
This section contains requirements regarding the construction and installation of gathering pipelines, including a limit on the extent of associated earth disturbance, flagging requirements and topsoil/subsoil standards. This final-form rulemaking requires that equipment refueling and staging areas must be out of floodways and least 50 feet away from a body of water, although materials staging within the floodway or within 50 feet of a water body may occur if first approved in writing by the Department. This final-form rulemaking requires that all buried metallic gathering pipelines shall be installed and placed in operation in accordance with 49 CFR Part 192, Subpart I or Part 195, Subpart H (relating to requirements for corrosion control; and corrosion control), codifying the requirements of section 3218.4(a) of the 2012 Oil and Gas Act.
§ 78a.68a. Horizontal directional drilling for oil and gas pipelines
This section contains requirements for horizontal directional drilling (HDD) associated with gathering and transmission pipelines, including planning, notification, construction and monitoring requirements. This section contains cross-references to other applicable regulatory requirements in Chapter 102 and Chapter 105 (relating to dam safety and waterway management). This section establishes that Department approval is required prior to using drilling fluid other than bentonite and water. The Department maintains a list of approved additives on its web site and any person using one of the approved additives does not require additional approval from the Department.
Additionally, this section specifies that HDD activities may not result in a discharge of drilling fluids to waters of the Commonwealth. This final-form rulemaking requires that bodies of water and watercourses over and adjacent to HDD activities be monitored for any signs of drilling fluid discharges.
In the event of a discharge, this section outlines the steps that an operator shall take to report and address that discharge. This section also proposes that any water supply complaints received by the operator be reported to the Department within 24 hours. This final-form rulemaking requires that bodies of water and watercourses over and adjacent to HDD activities be monitored for any signs of drilling fluid discharges.
This final-form rulemaking includes a requirement for a PPC plan for HDD with a site-specific contingency plan that describes the measures to be taken to control, contain and collect any discharge of drilling fluids and minimize impacts to waters of the Commonwealth. The Department believes that due to the heightened potential for pollution to waters of the Commonwealth that HDD creates, a separate PPC plan is required for this specific activity. A separate PPC plan is not required for HDD activities provided that the PPC plan developed under § 78a.55 meets the requirements in § 78a.68a (relating to horizontal directional drilling for oil and gas pipelines).
§ 78a.68b. Well development pipelines for oil and gas operations
This section contains the requirements for well development pipelines associated with oil and gas operations, including installation, construction, flagging, pressure testing, inspection operation, recordkeeping and removal requirements. This section also contains cross-references to applicable regulatory requirements in Chapters 102 and 105.
This final-form rulemaking requires that well development pipelines that transport flowback water and other wastewaters be installed aboveground. Subsection (c) specifies that well development pipelines may not be installed through existing stream culverts, storm drain pipes or under bridges that cross streams without approval by the Department under § 105.151 (relating to permit applications for construction or modification of culverts and bridges).
This final-form rulemaking requires certain safety measures with well development pipelines used to transport fluids other than fresh ground water, surface water and water from water purveyors or approved sources. They shall be pressure tested prior to being first placed into service and after the pipeline is moved, repaired or altered. Well development pipelines must have shut off valves, check valves or other methods of segmenting the pipeline placed at designated intervals that prevent the discharge of more than 1,000 barrels of fluid. They may not have joints or couplings on the segments that cross waterways unless secondary containment is provided. Highly visible flagging, markers or signs need to be placed at regular intervals along the well development pipeline. They cannot be used to transport flammable materials.
Well development pipelines shall be removed when the well site is restored. This final-form rulemaking requires operators to obtain Department approval for well development pipelines in service for more than 1 year.
This final-form rulemaking requires that the operator maintain certain records regarding well development pipelines, including the location, type of fluids transported, the approximate time of installation, pressure test results, defects and repairs. The records need to be retained for 1 year after their removal and be made available to the Department upon request.
§ 78a.69. Water management plans
WMPs are a requirement for unconventional wells in section 3211(m) of the 2012 Oil and Gas Act. This section codifies existing requirements to protect quality and quantity of water sources in the Commonwealth, including freshwater resources, from adverse impacts to the watershed considered as a whole from potentially inappropriate withdrawals of water. Further, this final-form rulemaking protects water quality and quantity by ensuring water is available to other users of the same water source and protects and maintains the designated and existing uses of the water source. This final-form rulemaking mirrors most of the requirements of the Susquehanna River Basin Commission and the Delaware River Basin Commission to ensure that requirements are consistent Statewide, regardless of which river basin an operator withdraws water from. This section also outlines the circumstances under which the Department may deny a WMP application or suspend, revoke or terminate an approved WMP.
§ 78a.70. Road-spreading of brine for dust control and road stabilization
§ 78a.70a. Pre-wetting, anti-icing and de-icing
These sections establish that brines and production fluids from unconventional wells may not be used for dust suppression and road stabilization, or for pre-wetting, anti-icing and de-icing.
§ 78a.73. General provision for well construction and operation
Subsection (c) establishes requirements for monitoring wells during hydraulic fracturing. First, operators of active, inactive, abandoned and plugged and abandoned wells that are vertically proximate to the stimulation perforations shall be notified at least 30 days prior to the start of drilling. Orphan and abandoned wells that are vertically proximate to the stimulation perforations shall be monitored by the operator stimulating the well. Wells that penetrate within defined vertical separation distances, or that have an ''unknown true vertical depth'' have the potential to serve as preferential pathways allowing pollution of the waters of the Commonwealth.
Operators shall notify the Department of any changes to wells being monitored and shall take action to prevent pollution or discharges to the surface. Operators also shall notify the Department if they observe any treatment pressure or volume changes indicative of abnormal fracture propagation at the well being stimulated or if the operator is otherwise made aware of a confirmed well communication incident associated with their stimulation activities.
Finally, this final-form rulemaking codifies the Department's current position that an operator that alters an abandoned and orphaned well by hydraulic fracturing shall plug that well.
§ 78a.121. Production reporting
This section requires unconventional operators to report production on a monthly basis in accordance with section 3 of the Unconventional Well Report Act. Additionally, this section requires unconventional operators to report their waste production on a monthly basis within 45 days of the end of the month, including the specific facility or well site where the waste was managed.
§ 78a.122. Well record and completion report
This section addresses new well report and stimulation record requirements, including 2012 Oil and Gas Act requirements. For the well record, new requirements include whether methane was encountered other than in a target formation, the country of origin and manufacture of tubular steel products used in the construction of the well (section 3222(b.1)(2)(ii) of the 2012 Oil and Gas Act) and the borrow pit used for well site development, if any.
For the well completion report, the additional information includes: the trade name, vendor and a brief descriptor of the intended use or function of each chemical additive in the stimulation fluid; a list of the chemicals intentionally added to the stimulation fluid, by name and chemical abstract service number; and the maximum concentration, in percent by mass, of each chemical intentionally added to the stimulation fluid (section 3222(b.1)(1)(i)—(iii) of the 2012 Oil and Gas Act), the well development impoundment, if any, used to complete the well and a certification that the monitoring plan required under § 78a.52a (relating to area of review) was conducted as outlined in the area of review report.
§ 78a.123. Logs and additional data
This final-form rulemaking addresses 2012 Oil and Gas Act requirements and clarifies when industry logs and data collected during drilling activities need to submitted to the Department, either by being required (standard logs) or requested (nonstandard logs and additional data requested prior to drilling).
§ 78a.309
Section 78.309 (relating to phased deposit of collateral) was not carried over to Chapter 78a in response to new bonding requirements in the 2012 Oil and Gas Act.
F. Changes from Proposed to Final-Form Rulemaking; Summary of Major Comments and Responses
The public comment period on the proposed rulemaking was open for 90 days, beginning with publication of the proposed rulemaking at 43 Pa.B. 7377 and ending on March 14, 2014, as extended at 44 Pa.B. 648 (February 1, 2014). The Board also held nine public hearings on the proposed rulemaking:
• January 9, 2014, in West Chester, PA
• January 13, 2014, in Williamsport, PA
• January 15, 2014, in Meadville, PA
• January 16, 2014, in Mechanicsburg, PA
• January 22, 2014, in Washington, PA
• January 23, 2014, in Indiana, PA
• January 27, 2014, in Tunkhannock, PA
• February 10, 2014, in Troy, PA
• February 12, 2014, in Warren, PA
The Department received 23,213 public comments on the proposed rulemaking, including a significant number of form letter comments/petitions. In addition, around 300 individuals testified at the 9 public hearings. IRRC also submitted comments on the proposed rulemaking.
Based on the review of those comments, the Department developed draft final-form rulemaking and used the ANFR procedure published at 45 Pa.B. 1615 (April 4, 2015). The public comment period on the ANFR was open for 45 days, until May 19, 2015, and the Department held three public hearings on the draft final-form regulations:
• April 29, 2015, in Washington, PA
• April 30, 2015, in Warren, PA
• May 4, 2015, in Williamsport, PA
The Department received 4,947 comments on the draft final-form regulations. Of those, 302 were unique comments and the balance was form letter comments. In addition, 129 individuals provided testimony on the ANFR at the 3 public hearings.
The major comments received on the proposed rulemaking and the draft final-form regulations, and the Department's responses, are summarized as follows. It is worth noting at the outset that on nearly every issue raised by the proposed rulemaking and the draft final-form regulations, the range of comments spanned from the provision being unreasonable, too restrictive and unnecessary, to the provision being not protective or restrictive enough but critical for the protection of public health and the environment.
Banning hydraulic fracturing
The Department received many comments on the proposed rulemaking and the ANFR suggesting that the Commonwealth should ban the practice of hydraulic fracturing or put a moratorium in place until various objectives could be achieved. The Department does not have the statutory authority to ban hydraulic fracking within this Commonwealth. Banning hydraulic fracturing would require an act of the General Assembly.
Well drilling can be done in a safe and environmentally sound way, provided applicable laws are adhered to by the regulated community. The amendments in Chapter 78a are intended to further strengthen these standards to ensure this Commonwealth's environment and the health of its citizens is properly protected. The Department believes the revisions to Chapter 78a are comprehensive, enforceable, consistent with applicable statutes, and provide appropriate protections for public health and safety and the environment. The Department will continue to study the efficacy of its regulatory programs and make improvements to the regulations as necessary.
Issues outside of the scope of this final-form rulemaking
The Department received many comments that were outside the scope of this final-form rulemaking. For example, several commentators suggested that the Department should significantly increase the bonds required of operators under authority granted by section 3225 of the 2012 Oil and Gas Act (relating to bonding). While the Board does have authority to alter bond amounts through regulation, that topic was not considered in this final-form rulemaking and so no changes were made to those sections in this final-form rulemaking. Similarly, many commentators raised air quality issues related to oil and gas operations. Air emissions from oil and gas operations are regulated under Subpart C, Article III (relating to air resources), not Chapters 78 and 78a. Revisions to Subpart C, Article III are beyond the scope of this final-form rulemaking. However, air emissions from the oil and gas sector are regulated through a series of measures including the best available technology which includes equipment, devices, methods and techniques that will prevent, reduce or control emissions of air contaminants, including hazardous air pollutants, to the maximum degree possible.
Noise mitigation requirements
The Department considered including noise mitigation requirements in this final-form rulemaking. Based on public comment to the proposed rulemaking raising concerns over noise issues at unconventional well sites, the Department developed § 78a.41, regarding noise mitigation, to address noise issues at unconventional well sites and published that provision as part of the ANFR.
Since that time, the Department has determined that the consideration of noise and possible mitigation is a concern not only with regard to unconventional gas production, but is an issue raised by other activities regulated by the Department (for example, mining). Because of this, additional cross-program collaboration and coordination will be required. In addition, there are a number of extremely complex technical issues that have to be resolved to develop a reasonable but effective noise mitigation program. This complexity is demonstrated in the scope and breadth of the comments submitted on the ANFR, both supporting and opposing the draft regulatory provisions. Finally, the science surrounding noise issues is continuing to develop, particularly with regard to impacts to human health and sensitive wildlife populations. Any reasonable and effective regulation regarding noise issues will need to take those developments into account.
For these reasons, the Department removed draft § 78a.41 from this final-form rulemaking to consider standards and enforcement that will maximize consistency and efficiency, where possible, among Department programs, while addressing the complex technical issues presented by noise at well sites. In its place, the Office of Oil and Gas Management intends to develop a noise mitigation ''best practices manual'' with input from a wide range of experts on noise issues as well as the public. If rulemaking is appropriate to address noise issues at well sites, the Department will develop regulations at a later date. Exclusion of noise mitigation requirements is the least burdensome, acceptable alternative at this time.
Centralized tank storage
Based on public comment to the proposed rulemaking raising concerns over the lack of permitting options for centralized off-site tank storage, the Department developed draft § 78.57 (relating to wells in a hydrogen sulfide area) and § 78a.57, regarding centralized tank storage, to provide for the option of centralized tank storage off of the well site under the oil and gas regulations. These sections were developed with significant input and review from the Department's waste management and storage tank programs to ensure that the draft final-form regulations were protective of public health and safety and the environment. The Department also felt that these sections were appropriate for inclusion in the draft final-form regulations to give operators an environmentally-protective option for offsite wastewater management given the Department's decision to eliminate the use of centralized impoundments without residual waste permits in § 78a.59c of the draft final-form regulations. These sections were published as part of the ANFR.
There was widespread opposition to these new sections across the spectrum of commentators, for various reasons. In keeping with the Department's interpretation of section 3273.1(a) of the 2012 Oil and Gas Act (relating to relationship to solid waste and surface mining), and the decision to eliminate the use of centralized impoundments without residual waste permits in § 78a.59c of the draft final-form rulemaking, the Department removed draft § 78a.57 from this final-form rulemaking. Operators wishing to manage oil and gas wastewater off of a well site, or on a well site but not consisting entirely of waste generated at that well site or waste that will be beneficially reused at that well site shall obtain a permit to do so under the Department's residual waste regulations rather than operating under Chapter 78 or Chapter 78a.
Transparency and public information
In regard to public access to oil and gas well information, the Department currently has more than a dozen interactive reports on its web site that provide information such as: permits issued; operator well inventories; inspection, violation and enforcement information; spud information; and target, oldest and producing formations associated with each well. Users are able to run these reports based upon specific parameters such as region, county, municipality, operator, date range, and the like. Additionally, the Department has an Oil & Gas Mapping application on its web site that allows users to geographically locate oil and gas wells using various map layers and aerial photography. The mapping application allows users to search for wells based upon numerous parameters. The mapping application also provides the additional functionality of displaying electronic copies of actual documents such as well permits/applications, inspection reports and operator's responses to violations. The Department will continue to expand both the amount of oil and gas well information available on its web site, and the ability to readily locate, retrieve and export that information.
Regulatory Review Act compliance
Commentators raised issues with the process used to develop and support the rulemaking under the Regulatory Review Act. The Department complied with the requirements of the Regulatory Review Act and other applicable Pennsylvania statutes. The revisions to Chapter 78a are consistent with the Pennsylvania Constitution and applicable statutes, and provide reasonable protections for public health and safety and the environment. The Department conducted the requisite analyses in developing the proposed and final-form rulemakings. These analyses are reflected in the Regulatory Analysis Form, preamble and other rulemaking documents. Among other things, the Department considered the potential costs, benefits, need, impacts on small businesses, alternatives and other potential impacts of the rulemaking. This final-form rulemaking represents the Department's revisions to the rulemaking after careful consideration of all comments received during the rulemaking process and of the additional public input.
A subset of these concerns related to forms and guidance documents necessary to implement this final-form rulemaking and lack of availability of those documents for review concurrently with review of the proposed rulemaking and the ANFR. The Department will make forms and guidance documents available prior to adoption of this final-form rulemaking to address this concern. The Department notes that forms and guidance can only be based on the performance standards and requirements established by this final-form rulemaking and do not impose binding obligations independent of that authority. Therefore, development of those documents without a firm understanding of exactly what the requirements of this final-form rulemaking is impractical.
§ 78a.1. Definitions
Several definitions were added to this section, including ''ABACT—antidegradation best available combination of technologies,'' ''abandoned water well,'' ''accredited laboratory,'' ''barrel,'' ''building,'' ''certified mail,'' ''common areas of a school's property,'' ''floodplain,'' ''inactive well,'' ''limit of disturbance,'' ''modular aboveground storage structure,'' ''other critical communities,'' ''PCSM—post-construction stormwater management,'' ''PNDI—Pennsylvania Natural Diversity Inventory,'' ''PNDI receipt,'' ''playground,'' ''primary containment,'' ''public resource agency,'' ''residual waste,'' ''secondary containment,'' ''threatened or endangered species,'' ''waters of the Commonwealth'' and ''wellhead protection area.'' These definitions were added to provide clarity to the substantive sections of this final-form rulemaking or to address provisions added to this final-form rulemaking. An example of the latter would be ''common areas of a school's property'' and ''playground,'' as those terms were added to the list of public resources to be considered under § 78a.15(f) (relating to application requirements).
Two definitions were changed to better reflect the substantive sections of this final-form rulemaking and in response to comments: ''centralized impoundment'' (to better reflect the changes to § 78a.59c); and ''oil and gas operations'' (to eliminate well location assessment and seismic activities from the definition in response to comments). The definition of ''pit'' was changed to reflect the ban on the use of pits at unconventional well sites.
Initially, ''well location assessment'' and ''seismic operations'' were included in the definition of ''oil and gas operations.'' The Department received many comments requesting clarification of the term suggesting that these items were not appropriate for inclusion in the definition. In many cases, the operator is not even the entity conducting these activities. The Department amended the definition of ''oil and gas operations'' by deleting those two terms.
The definition of ''mine influenced water'' was amended in this final-form rulemaking to address concerns that the definition approved by the Board on February 3, 2016, and IRRC on April 21, 2016, did not establish a binding norm. The new language matches the standards established in § 105.3(a)(3). This change was made at the direction of the Office of Attorney General during its review of the final-form regulations for form and legality.
Finally, several definitions were deleted as they became unnecessary due to changes in the substantive provisions or the bifurcation of the regulations into two separate chapters. Deleted definitions include ''certified laboratory,'' ''conventional formation'' (§ 78a.1), ''conventional well'' (§ 78a.1), ''containment system,'' ''nonvertical unconventional well'' (§ 78.1), ''vertical unconventional well'' (§ 78.1) and ''WMP—water management plan'' (§ 78.1).
§ 78a.2. Applicability
This final-form rulemaking adds this section to clarify that Chapter 78a applies to unconventional wells and that Chapter 78a supersedes any regulations in Chapter 78 that might appear to apply to unconventional wells. This section was added at the direction of the Office of Attorney General during its review of the pre-Act 52 final-form regulations for form and legality.
§ 78a.15. Application requirements
Protecting waters of the Commonwealth
Section 78a.15(b.1) is added to this final-form rulemaking. This subsection establishes that if the proposed limit of disturbance is within 100 feet measured horizontally from any watercourse or any high quality or exceptional value body of water or any wetland greater than 1 acre in size, the applicant shall demonstrate that the well site location will protect those water course or bodies of water. These provisions are needed to ensure protection of waters of the Commonwealth—especially in light of the Supreme Court's decision in Robinson Twp., which enjoined the application of the water quality protection setbacks in section 3215(b) of the 2012 Oil and Gas Act. Under The Clean Streams Law (35 P.S. §§ 691.1—691.1001), the Department has an obligation to develop regulations when it finds that an activity may create a danger to waters of the Commonwealth. These provisions are necessary to avoid pollution. Additionally, this demonstration is currently part of the well permit application for both conventional and unconventional wells. Accordingly, these provisions seek to codify an existing practice.
The Department received significant public comment on this provision. Some commentators argued that the buffer distance was too short while others argued that the Department does not have the authority to establish a buffer of any distance. Regarding the question of authority, the Department disagrees. The Department has broad authority under The Clean Streams Law to establish regulations to protect waters of the Commonwealth. Regarding the buffer distance, the Department believes that 100 feet is appropriate. Moreover, these provisions are similar to other requirements in 25 Pa. Code (relating to environmental protection) and are consistent with the riparian buffer requirements in Chapter 102.
As documented in the final-form rulemaking ''Erosion and Sediment Control and Stormwater Management'' amending Chapter 102 published at 40 Pa.B. 4861 (August 21, 2010), there is substantial scientific support for a 100-foot buffer from streams. One study is Streamside Forest Buffer Width Needed To Protect Stream Water Quality, Habitat and Organisms: A Literature Review, Bernard W. Sweeney and J. Denis Newbold, Journal of the American Water Resources Association, June 2014, which cites over 251 scientific articles and papers as sources for the paper which states that ''overall, buffers ≥30 m wide [approximately 100 feet] are needed to protect the physical, chemical, and biological integrity of small streams.'' For these reasons, the Department determined that 100 feet was a reasonable and appropriate area for additional review to ensure protection of waters of the Commonwealth.
Subsection (d) was amended in this final-form rulemaking to more accurately codify the Department's current policy regarding impacts to threatened or endangered species, ''Policy for Pennsylvania Natural Diversity Inventory (PNDI) Coordination During Permit Review and Evaluation,'' Doc. No. 021-0200-001. Subsection (e) is amended to codify the Department's policy that PNDI clearances obtained less than 2 years prior for existing well sites as part of erosion and sediment control permitting can serve as the PNDI clearance for a subsequent well permit application.
Subsection (f) outlines a process for the Department to consider the impacts to public resources when making a determination on a well permit in accordance with the Department's constitutional and statutory obligations to protect public resources. This public resource impact screening subsection, along with water supply replacement, waste management and area of review provisions, formed one of four ''pillars'' of this final-form rulemaking. Not surprisingly, this subsection generated significant comments across the entire spectrum of issues. The significant comments, and changes to this final-form rulemaking as a result of those comments, are outlined as follows.
Authority
The public resource impact screening process in § 78a.15(f) and (g) is needed because the Department has an obligation to protect public resources under Article I, Section 27 of the Pennsylvania Constitution, The Administrative Code of 1929 (71 P.S. §§ 51—732), the 2012 Oil and Gas Act, The Clean Streams Law, the Dam Safety and Encroachments Act, the SWMA (35 P.S. §§ 6018.101—6018.1003) and other statutes. Moreover, the Department shares responsibility for the protection of natural resources with other Commonwealth agencies and municipalities that also have trustee duties under Article I, Section 27 of the Pennsylvania Constitution, as well as Federal agencies. To meet these constitutional and statutory obligations, § 78a.15 establishes a process for the Department to identify, consider and protect public resources from the potential impacts of a proposed well and to coordinate with applicable public resource agencies.
Public resource consideration has been a required component of the well permit application process since the Oil and Gas Act was first enacted in 1984 (58 P.S. §§ 601.101—601.605) (repealed) (1984 Oil and Gas Act). The 1984 Oil and Gas Act was repealed by the act of February 14, 2012 (P.L. 87, No. 13) (Act 13). The provisions in this final-form rulemaking are needed to provide a clear process for identifying potentially impacted public resources, notifying applicable public resource agencies, soliciting any recommended mitigation measures and supplying the Department with sufficient information to determine whether permit conditions are necessary to avoid a potentially harmful impact to public resources.
If the limit of disturbance associated with a proposed oil or gas well site is located within a certain distance of a listed public resource as provided in § 78a.15(f)(1), the well permit operator shall provide additional information in the well permit application and notify applicable public resource agencies 30 days prior to submitting the well permit application. Under § 78a.15(f)(2), the public resource agencies have 30 days to provide written comments to the Department and the applicant on the functions and uses of the public resource and any recommended mitigation measures. The applicant is then afforded an opportunity to provide a response to those comments. The Department then evaluates the potential impacts and assesses the need for conditions in the well permit using the criteria in § 78a.15(g). Section 78a.15(g) is added to provide needed clarity regarding implementation of these obligations and to comply with section 3215(e) of the 2012 Oil and Gas Act, which specifically directs the Board to develop these criteria by regulation.
The right of the people of this Commonwealth to clean air, pure water, and the preservation of the natural, scenic, historic and esthetic values of the environment as expressly provided by Article I, Section 27 of the Pennsylvania Constitution is fundamental to the quality of life of the people of this Commonwealth. Additionally, public natural resources held in trust by the Commonwealth for the benefit of the people are a major economic contributor to Pennsylvania through tourism, outdoor fish and game sports, and recreation. The public resource impact screening provisions in this final-form rulemaking provide needed clarity and clear standards for the Department to carry out its trustee obligations in administering the 2012 Oil and Gas Act program and will ensure the continued availability and benefits of these public resources throughout this Commonwealth.
Despite the Department's duties and obligations as previously described, industry commentators argued that the Department does not have the statutory authority to promulgate regulations regarding public resources under § 78a.15(f) and (g) because the Pennsylvania Supreme Court enjoined section 3215(c) and (e) of the 2012 Oil and Gas Act in Robinson Twp. The Department asserts that section 3215(c) and (e) of the 2012 Oil and Gas Act was not enjoined or otherwise invalidated by Robinson Twp. and that neither the plurality nor the concurring opinions in Robinson Twp. read in their totality overturn the public resource protection requirements as part of the well permitting process. During the development of the proposed and final-form rulemakings this issue was being litigated in Commonwealth Court. See Pennsylvania Independent Oil & Gas Association v. Commonwealth (321 M.D. 2015). On September 1, 2016, the Commonwealth Court entered judgment in favor of the Department. The Court found that the Department's authority to consider the impacts of a proposed oil and gas well on public resources under section 3215(c) of the 2012 Oil and Gas Act was not invalidated by the Pennsylvania Supreme Court's decision in Robinson Twp. The Court agreed with the Department's argument that the Supreme Court enjoined the application of section 3215(c) of the 2012 Oil and Gas Act only to the extent it implements provisions in section 3215(b) of the 2012 Oil and Gas Act. The Court decided that the Department had the authority to consider public resources as part of the well permit review process solely under the authority of section 3215(c) of the 2012 Oil and Gas Act.
On September 29, 2016, the Commonwealth Court's opinion was appealed to the Pennsylvania Supreme Court. As of the date of this final-form rulemaking this matter is still pending before the Pennsylvania Supreme Court.
The Department's interpretation of Robinson Twp. and the outline of the authority for these provisions is as follows. The Pennsylvania Supreme Court's decision in Robinson Twp. invalidated section 3215(b)(4) and (d) of the 2012 Oil and Gas Act and sections 3303 and 3304 of the 2012 Oil and Gas Act (relating to oil and gas operations regulated by environmental acts; and uniformity of local ordinances) as unconstitutional. As for section 3215(c) and (e) of the 2012 Oil and Gas Act, the Pennsylvania Supreme Court held: ''Sections 3215(c) and (e) . . . are not severable to the extent that these provisions implement or enforce those Sections of [the 2012 Oil and Gas Act] which we have found invalid and, in this respect, their application or enforcement is also enjoined.'' 83 A.3d 901 at 1000 (emphasis added).
Sections 3215(b) and (d), 3303 and 3304 of the 2012 Oil and Gas Act address: protection of surface water quality; comment and appeal rights of municipalities and storage operators; pre-emption of local ordinances; and uniformity of local ordinances, respectively. Section 3215(c) of the 2012 Oil and Gas Act is a separate, independent, free-standing provision that does not implement or enforce these invalidated provisions. Rather, section 3215(c) of the 2012 Oil and Gas Act requires the Department to consider the impacts of a proposed well on ''public resources'' including, but not limited to: publicly owned parks, forests, game lands and wildlife areas; National and State scenic rivers; National natural landmarks; habitats of threatened and endangered species and other critical communities; historical and archeological sites; and sources used for public drinking supplies.
Section 3215(e) of the 2012 Oil and Gas Act operates in tandem with section 3215(c) of the 2012 Oil and Gas Act. Under section 3215(e) of the 2012 Oil and Gas Act, the Board is directed to develop regulations to establish criteria for the Department to consider when conditioning well permits based on impacts to public resources identified under section 3215(c) of the 2012 Oil and Gas Act.
The Department believes that section 3215(c) and (e) of the 2012 Oil and Gas Act does not implement or enforce section 3215(b), 3215(d), 3303 or 3304 of the 2012 Oil and Gas Act and, therefore, remain valid and enforceable.
For these reasons, in addition to the authority previously discussed, the Department has argued that it retains a specific statutory obligation to protect public resources under section 3215(c) and (e) of the 2012 Oil and Gas Act.
However, even if those subsections were invalidated as some commentators assert the provision under the 1984 Oil and Gas Act mandating protection of public resources would then remain in effect. See section 205(c) of the 1984 Oil and Gas Act (58 P.S. § 601.205(c)) (repealed). Thus, the Board has authority under either the 2012 Oil and Gas Act or the prior 1984 Oil and Gas Act to promulgate regulations for the consideration of impacts to protect public resources when issuing an oil or gas well permit.
Additionally, other provisions of the 2012 Oil and Gas Act also support the requirements in § 78a.15 of this final-form rulemaking. The General Assembly recognized the constitutional obligation to protect public resources in section 3202 of the 2012 Oil and Gas Act (relating to declaration of purpose of chapter), which provides that the purpose of the 2012 Oil and Gas Act is to ''[p]rotect the natural resources, environmental rights and values secured by the Constitution of Pennsylvania.'' Under section 3274 of the 2012 Oil and Gas Act (relating to regulations), the Board has the authority to promulgate regulations necessary to implement the 2012 Oil and Gas Act. The public resource protection provisions in § 78a.15 provide a reasonable and appropriate process for the Department to implement the constitutional and statutory requirements previously discussed.
Further, the General Assembly has enacted several other statutes that provide the Department with the broad power and duty to protect public natural resources consistent with the mandates of Article I, Section 27 of the Pennsylvania Constitution, including The Clean Streams Law, the SWMA, the Dam Safety and Encroachment Act, Act 2 (35 P.S. §§ 6026.101—6026.908) and The Administrative Code of 1929. These statutes also provide authority for this rulemaking.
Additionally, the General Assembly has enacted statutes that provide authority for other Commonwealth agencies to protect public natural resources, and the Department coordinates with those agencies to fulfill its constitutional and statutory duties to protect public natural resources. The public resource protection provisions included in Chapter 78a facilitate the Department's compliance with this obligation.
Finally, the public screening requirements provided in this final-form rulemaking establish a standardized and transparent process for the Department to identify, consider and protect public resources from the impacts of a proposed well and to coordinate with other public resource agencies with constitutional and statutory duties to conserve and maintain these resources, in a manner that demonstrates compliance with Article I, Section 27 of the Pennsylvania Constitution under the most recent court decisions interpreting the three-part test in Payne v. Kassab, 312 A.2d 86 (Pa. Cmwlth. 1973).
The public resource protection requirements in § 78a.15 establish a process for the Department to consider and protect public resources from the impacts of a proposed well and coordinate with public resource agencies. As such, these provisions are authorized by law and are necessary for the Commonwealth to fulfill its constitutional and statutory obligations.
Distances
Demonstrating once again how divergent opinions on the proposed rulemaking and draft pre-Act 52 final-form regulations could be, many commentators expressed concern over the distances in § 78a.15(f). Some commentators felt that the distances should be expanded. Others believed that the measuring the distance from the limit of disturbance rather than the vertical wellbore was inappropriate because the statute only refers to impacts from the well.
The distances to certain public resources identified in § 78a.15(f)(1) of this final-form rulemaking are consistent with those used by the Department to consider public resources in well application forms since the oil and gas permitting program was established under the 1984 Oil and Gas Act. The Department has found these distances to be effective for purposes of identifying and considering potential impacts to public resources. However, given the increased size of well sites constructed when enhanced development techniques such as hydraulic fracturing are used, § 78a.15(f)(2) require these distances to be measured from the limit of disturbance of the well site rather than from the well itself, as was the prior practice.
Setbacks
Many commentators believed that the distances in § 78a.15(f) comprised setbacks and that specifically there should be a 1-mile setback from schools, nursing homes and day care facilities.
The provisions in this final-form rulemaking, however, are not setbacks. The distances in these provisions define an area that requires coordination with public resource agencies and additional consideration during the permit review process. These provisions do not prohibit drilling activities within these defined areas and were never intended to do so.
In section 3215(a) of the 2012 Oil and Gas Act, the General Assembly established setbacks prohibiting the drilling of oil and gas wells within certain distances from buildings and drinking water wells. For a conventional well, this distance is 200 feet; for an unconventional well, this distance is 500 feet. Additionally, unconventional wells may not be drilled within 1,000 feet of a public water supply. To the extent the commentators suggests that the General Assembly should extend these setbacks from certain facilities, such as schools, nursing homes or day care facilities, that change must be made through an amendment to the 2012 Oil and Gas Act.
Too much power given to the public resources agencies
A related set of commentators felt that even though § 78a.15(f) does not establish setbacks, it still gives ''too much power'' to the public resource agencies. The Department has an obligation to protect public resources under Article I, Section 27 of the Pennsylvania Constitution, The Administrative Code of 1929, the 2012 Oil and Gas Act, The Clean Streams Law, the Dam Safety and Encroachments Act, the SWMA and other statutes.
The Department has a specific statutory obligation to consider the impacts to public resources under section 3215(c) of the 2012 Oil and Gas Act. Additionally, the General Assembly established a plenary role for the Department in matters of regulating oil and gas activities which may impact public resources. Section 3202 of the 2012 Oil and Gas Act states that the purpose of the act is to ''[p]rotect the natural resources, environmental rights and values secured by the Constitution of Pennsylvania.'' Under section 3274 of the 2012 Oil and Gas Act, the Board has the authority to promulgate regulations necessary to implement the 2012 Oil and Gas Act.
Moreover, the Department shares responsibility for the protection of natural resources with other Commonwealth agencies and municipalities that also have trustee duties under Article I, Section 27 of the Pennsylvania Constitution, as well as Federal agencies. For example, the Department of Conservation and Natural Resources is required by statute to manage State parks and State forests, as well as to survey and maintain an inventory of ecological resources of the Commonwealth. Similarly, the Fish and Boat Commission and the Game Commission have responsibility for managing various fish and wildlife resources within this Commonwealth. Federal agencies also have jurisdiction over certain water resources, as well as Federally protected fish and wildlife resources. Further, public resources agencies have particular knowledge and expertise concerning the public resources they are responsible for managing.
Section 78a.15(f) establishes a straightforward process for well applicants to notify public resources agencies and provide those public resources agencies the opportunity to submit comments to the Department on functions and uses of the applicable public resources and any mitigation measures recommended to avoid, minimize or otherwise mitigate probable harmful impacts.
By requiring the applicant and the Department to consider recommendations from public resource agencies, this final-form rulemaking ensures that the Department meets its constitutional and statutory obligations to consider public resources when making determinations on well permits. Importantly, these provisions function to provide the Department with information necessary to enable the Department to conduct its evaluation of the potential impacts, to review the information in the context of the criteria in § 78a.15(g) and to determine whether permit conditions are necessary to prevent a probable harmful impact.
Public resources to be considered in § 78a.15(f)
A related set of comments concerned the list of public resources that trigger the impact screening process, with the thrust of the comments being that the list was too narrowly drawn and should be expanded to include other resources. Other commentators argued that the list of public resources does not mirror what is in the statute and therefore should be narrowed.
Under section 3215(c) of the 2012 Oil and Gas Act, the Department has the obligation to consider the impacts of a proposed well on public resources ''including, but not limited to'' certain enumerated resources when making a determination on a well permit. Accordingly, given the authority in section 3215(c) of the 2012 Oil and Gas Act as well as the Department's constitutional and statutory obligations to protect public resources, the Department has the authority to expand the list of public resources to include public resources similar to those listed.
Section 78a.15(f)(1) of this final-form rulemaking includes the public resources listed in section 3215(c) of the 2012 Oil and Gas Act. Based on comments received, ''common areas of a school's property,'' ''playgrounds'' and ''wellhead protection areas'' were added because these resources are similar in nature to the other listed public resources. Playgrounds and school common areas are frequently used by the public for outdoor recreation, similar to parks. Wellhead protection areas are associated with sources used for public drinking supplies, another listed resource. In further response to comments, the ''wellhead protection area'' public resource has been clarified by including a cross-reference to § 109.713 (relating to wellhead protection program) and limiting the areas to those classified as zones 1 and 2. Additionally, definitions of ''common areas of a school's property'' and ''playground'' have been added to § 78a.1.
Notwithstanding the enumeration of specific public resources in this final-form rulemaking, the Department will consider the potential impacts to other public resources identified during the permitting process.
To the extent that commentators questioned what constitutes an impact, § 78a.15(f)(2) and (3) outlines the process for coordinating with public resource agencies and the information that a well permit applicant shall include in the well permit application to address potential impacts. The purpose of these paragraphs is to identify the public resources that may be impacted by well drilling and to outline a process to ensure the Department has sufficient information to evaluate when determining whether permit conditions are necessary to prevent a probable harmful impact to the functions and uses of those public resources using the criteria in § 78a.15(g). Accordingly, within the context of these provisions, an impact is a probable harmful effect to the functions and uses of the public resource.
A more specific set of comments recommended adding schools, hospitals, day care centers, nursing homes and other similar facilities to the list of public resources.
These facilities have not been added to the list of public resources included in § 78a.15(f)(1) of this final-form rulemaking. These types of facilities are not similar in nature to the other listed public resources (that is, parks, forests, game lands, wildlife areas, species of special concern, scenic rivers, natural landmarks, historical or archeological sites, and public drinking water supplies).
To the extent that commentators were suggesting that additional protections are needed for these facilities, Chapter 78a, as well as other regulations, permits and policies implemented by the Department under the Commonwealth's environmental laws establish a comprehensive regulatory scheme for oil and gas well development activities to ensure protection of public health, safety and the environment.
A similar set of comments suggested that the Department add other waters of the Commonwealth to the list of public resources. Section 78a.15(f) has not been expanded in this manner because protection of these waters is achieved through other provisions in Chapter 78a, as well as implementation of other water permitting programs administered by the Department through other environmental laws and regulations. Specifically, § 78a.15(b.1) requires additional consideration during the well permit application review process for any watercourse or any high quality or exceptional value body of water or any wetland one acre or greater in size. Importantly, Chapter 78a contains many provisions, including the requirements related to erosion and sediment control, surface water discharges, waste management, onsite processing, protection of water supplies, water management planning, secondary containment, well construction and site restoration that ensure protection of waters of the Commonwealth.
Cover all oil and gas operations
Another group of comments stated that the public resource impact screening process should apply to all oil and gas operations, not merely drilling a well. The Department declined to make this change in this final-form rulemaking.
Section 78a.15 establishes the well permit application process and is limited to activities associated with well construction and development. The requirements of these sections are designed to address the impacts within the limit of disturbance of the well site. Other activities associated with the oil and gas operations are regulated through various other provisions in Chapter 78a, or other laws implemented by the Department.
Definition of ''other critical communities'' exceeds the Department's legal authority
Regarding § 78a.15(f)(1)(iv), some commentators believed that the definition of ''other critical communities'' exceeded the Department's legal authority.
The Department has an obligation to protect public resources under Article I, Section 27 of the Pennsylvania Constitution, The Administrative Code of 1929, the 2012 Oil and Gas Act, The Clean Streams Law, the Dam Safety and Encroachments Act, the SWMA and other statutes. Specifically, under section 3215(c)(4) of the 2012 Oil and Gas Act, the Department has a legal obligation when reviewing a well permit application to consider the impacts to public resources including ''other critical communities.'' The phrase ''other critical communities'' is defined in this final-form rulemaking to mean species of special concern identified through the PNDI consistent with the Department's past practices and policies. Under section 3274 of the 2012 Oil and Gas Act, the Board has the authority to promulgate regulations necessary to implement the 2012 Oil and Gas Act.
The Department's well permit application materials and its ''Policy for Pennsylvania Natural Diversity Inventory (PNDI) Coordination During Permit Review and Evaluation,'' Doc. No. 021-0200-001, establish a process that has been and continues to be in use by well permit applicants to identify and consider species of special concern. This final-form rulemaking codifies this process and is consistent with the Department's long-standing use of PNDI to fulfill its responsibility to consider impacts on species of special concern when issuing permits under various environmental statutes.
In response to comments, this final-form rulemaking amends the definition of ''other critical communities'' in § 78a.1 to clarify that this term applies only to those species of special concern that appear on a PNDI receipt. Also in response to comments, the Department deleted the provisions in the draft final-form regulations regarding specific areas within the geographical area occupied by a threatened or endangered species and significant nonspecies resources. These changes were to ensure that this final-form rulemaking accurately reflects the existing PNDI process.
The process for consideration of public resources in § 78a.15 makes appropriate use of information available in the PNDI database from the public resources agencies with the authority, knowledge and expertise to identify and protect species of special concern. Section 78a.15(f) outlines a reasonable and appropriate process that provides important information to the Department to evaluate potential impacts and to assess the need for additional conditions in the well permit using the criteria in § 78a.15(g).
Notification to schools and evacuation provisions in operators PPC plan
A school with a common area within 200 feet of the limit of disturbance of a proposed well site will receive notice from the well permit applicant. To the extent that the commentator suggested that additional requirements are needed for emergency response, § 78a.55 contains comprehensive emergency response requirements for unconventional well sites. Plans are available to the public and county emergency management agencies.
Replace wellhead protection zone/area and wellhead protection plan with source water protection zone and source water protection plan
In response to comments that the wellhead protection area in § 78a.15(f)(1)(vii) has been clarified by adding a cross-reference to § 109.713 and limiting public resource coordination to proposed wells in zone 1 and 2 wellhead protection areas.
Several commentators suggested that ''Source Water Protection Zone'' and ''Source Water Protection Plan'' should replace wellhead protection zone and wellhead protection plan every place it appears in these chapters, allowing the inclusion of water suppliers relying on surface water sources in the notification process. The Department disagrees and declined to make this change. The wellhead protection program is established under § 109.713 and allows for an objective and identifiable area to set objective limits on the resource impact screen. The Department acknowledges that surface water sources should be protected and believes that Chapter 78a and other Department regulations and statutes provide adequate protection.
Public resource agency notification and comment period
Many commentators expressed concerns over the amount of time given in § 78a.15(f) for consultation between permit applicants and public resource agencies. Some felt that 30 days was too long and others felt that 30 days was not long enough. The Department has an obligation to protect public resources under Article I, Section 27 of the Pennsylvania Constitution, The Administrative Code of 1929, the 2012 Oil and Gas Act, The Clean Streams Law, the Dam Safety and Encroachments Act, the SWMA and other statutes. Moreover, the Department shares responsibility for the protection of natural resources with other Commonwealth agencies and municipalities that also have trustee duties under Article I, Section 27 of the Pennsylvania Constitution, as well as Federal agencies. The Department has a specific statutory obligation to consider the impacts to public resources under section 3215(c) of the 2012 Oil and Gas Act. Additionally, the General Assembly established a plenary role for the Department in matters of regulating oil and gas activities which may impact public resources. Section 3202 of the 2012 Oil and Gas Act states that the purpose of the act is to ''[p]rotect the natural resources, environmental rights and values secured by the Constitution of Pennsylvania.'' Under section 3274 of the 2012 Oil and Gas Act, the Board has the authority to promulgate regulations necessary to implement the 2012 Oil and Gas Act. Coordination by the applicant with other public resource agencies with statutory authority over certain public resources is necessary and appropriate to ensure the Department fulfills its constitutional and statutory obligations.
Section 78a.15(f)(2) has been revised to increase the time provided to public resource agencies to provide comments to the Department on the impacts to public resources from 15 days to 30 days. This additional time allows municipalities that only meet on a monthly basis the opportunity to respond to a request from an applicant. The additional time also provides public resource agencies with a greater ability to review and to provide meaningful comments and recommendations to the applicant without unduly delaying the permitting process.
The operator should not be made to speculate on the functions and uses of public resources
Section 78a.15(f) establishes a process for the applicant to obtain information from an appropriate public resource agency regarding potential impacts to public resources from the proposed oil or gas well drilling. This process ensures that the Department has sufficient information to evaluate whether permit conditions are necessary using the criteria in § 78a.15(g).
If a public resource agency does not provide any comments or recommendations when notified of a proposed oil or gas well, the Department will consider information provided by the applicant on potential impacts and proposed avoidance or mitigation measures, as well as other information available to the Department, to determine whether any well permit conditions are appropriate.
Define/clarify ''discrete area''
The Department declines to define ''discrete area'' at this time because defining that area is an intensely site-specific determination not easily captured in regulatory language. If the need for further clarification becomes apparent during implementation of this provision, the Department will develop guidance to address any issues identified.
Criteria upon which permit conditions can be established
Section 78a.15(g) has been amended to clarify the criteria the Department will consider when deciding whether to condition an oil or gas well permit based on impacts to public resources.
Placing the burden on the Department to show that permit conditions are necessary to protect against probable harms is profoundly improper
Section 78a.15(g) has been revised to delete language regarding the Department's burden of proof upon appeal of a condition necessary to protect a public resource. Section 3215(e) of the 2012 Oil and Gas Act states that the Department has the burden of proving that a well permit condition imposed to protect a public resource is necessary to protect against a probable harmful impact of the public resource.
Section 78a.15(g) provides that the Department may condition a well permit if it determines that the proposed well site or access road poses a probable harmful impact to a public resource. Section 3215(e) of the 2012 Oil and Gas Act requires the Department to consider the impact of the permit condition on the applicant's ability to exercise its property rights to ensure optimal development of the resources, and provides a mechanism by which the operator may appeal the Department's determination.
Antidegradation
Section 78a.15(h) requires a well permit applicant proposing to drill a well that involves 1 to 5 acres of earth disturbance over the life of the project that is located in a special protection watershed to submit an erosion and sediment control plan with the well permit application. These provisions seek to codify an existing component of the well permit application and are necessary to ensure that the Department's meets its antidegradation requirements in Chapter 93.
§ 78a.18. Disposal and enhanced recovery well permits
Several commentators noted that it is possible for an unconventional well to undergo a change in service and be converted to a disposal or enhanced recovery well. Because these wells are by definition conventional wells, the Department added a cross-reference in § 78a.18 (relating to disposal and enhanced recovery well permits) to § 78.18.
The Department received many comments on this section of the nature of banning underground injection of oil and gas wastewater or making amendments to the substantive subsurface requirements of the section. The proposed amendments to the underground injection control (UIC) well provisions of Chapter 78 were not intended to represent a sweeping overhaul of the UIC program in this Commonwealth but rather to clarify that all containment practices and onsite processing associated with disposal and enhanced recovery wells had to comply with the requirements of Chapter 78. For that reason, broad amendments to the current UIC program are beyond the scope of this final-form rulemaking.
The Department also notes that the Commonwealth does not have primacy for the UIC program in this Commonwealth; that authority lies with the United States Environmental Protection Agency (EPA), Region III. The EPA program regulations are authorized by the Safe Drinking Water Act (42 U.S.C.A. §§ 300f—300j-26) and are designed to protect all underground sources of drinking water from all waste injection activities.
§ 78a.51. Protection of water supplies
In this final-form rulemaking, § 78a.51(d)(2) provides that a restored or replaced water supply will be deemed adequate if it meets the standards established under the SDWA or ''is comparable to the quality of water that existed prior to pollution if the water quality was better than these standards.'' This provision is needed to clarify the Department's interpretation of the water supply replacement standard established in section 3218(a) of the 2012 Oil and Gas Act. This water supply replacement standard was newly added to as part of the 2012 Oil and Gas Act.
Many commentators argued that use of ''exceeded'' in section 3218(a) of the 2012 Oil and Gas Act should be interpreted to describe a water supply that does not meet SDWA standards instead of using ''exceeded'' to describe a water supply that had water quality better than SDWA standards. The impact of this interpretation would be that water supplies where water quality was documented prior to being affected by oil and gas activities as being higher quality than required by the SDWA would only require restoration to SDWA standards. Additionally, water supplies that did not meet SDWA standards prior to being impacted by oil and gas operations would only require restoration to the previous poor quality. The Department disagrees with this interpretation.
This final-form rulemaking requires water supplies to be restored to SDWA standards or better. The SDWA standards are based on scientific fact as far as what is, and is not, in a water supply to determine if it is safe for human consumption. If the water quality has been documented prior to being affected by oil and gas operations, that documented water quality, even if it is of a higher quality than SDWA standards, shall be re-established by the operator. Otherwise, the Department will be allowing operators to degrade a natural resource relied upon as a water supply source. In regard to water supplies that did not meet SDWA standards prior to being impacted by oil and gas operations, the Department would be derelict in its duties if it allowed operators to provide replacement drinking water that by its own standards is not fit to drink simply because the pre-existing water supply was poor. The operator may choose the size and scope of their predrill water supply survey to help bolster their defense of what the pre-existing water quality truly was. Given the need to provide replacement water based on the positive impact determination, the additional cost borne by operators is limited to the incremental cost of providing SDWA standards water as compared to the previous poor quality, not the difference between providing no water at all and meeting the previous poor quality.
Section 78a.51(c) provides that the presumption established in section 3218(c) of the 2012 Oil and Gas Act does not apply to pollution resulting from well site construction. This provision is needed to clarify the Department's interpretation of the scope of the presumption in the statute. Several commentators argued that the presumption should apply to well site construction. The presumption encompasses situations in which the water supply is within 2,500 feet of the unconventional well bore, and the pollution takes place within 12 months of drilling, alteration or stimulation of an unconventional well and situations in which the water supply is within 1,000 feet of the conventional well bore, and the pollution takes place within 6 months of drilling or alteration of a conventional well. The Department does not have regulatory authority to expand the scope of the statutory presumption to include well pad development. If the Department finds that the pollution or diminution was caused by the well site construction, drilling, alteration or other oil and gas operations, or if it presumes the well operator is responsible for pollution under section 3218(c) of the 2012 Oil and Gas Act, the Department will require the operator to provide a temporary water supply to the landowner or water purveyor until the water supply is permanently restored or replaced.
Section 78a.51(a) specifies that a water supply owner may notify the Department and request an investigation if suffering pollution or diminution of a water supply. This provision is needed to clarify the scope of water supply complaints. Many commentators argued that the Department does not have authority to expand water supply pollution or diminution investigations to include oil and gas operations. While section 3218(b) of the 2012 Oil and Gas Act states that a landowner or water purveyor suffering pollution or diminution of a water supply as a result of the drilling, alteration or operation of an oil or gas well may so notify the Department and request that an investigation be conducted, the Department also has a responsibility to investigate all possible water supply impacts under The Clean Streams Law, including those caused by oil and gas operations. Therefore, the Department included oil and gas operations in the scope of reasons an affected landowner, water purveyor or affected person may request a water supply investigation from the Department.
Some commentators have suggested the Department specifically notify neighboring land owners or land management agencies, or both, if a claim of water pollution or diminution has been made to the Department. The Department declined to make this suggested change because the Department administers a robust program to prevent and respond to complaints and spills and releases associated with oil and gas activities. When the Department concludes that a water supply may be impacted by a spill, the Department routinely provides notice to those persons potentially impacted and gathers additional information to aid further investigation if warranted. The investigation may include sampling water supplies that are potentially impacted by a spill (if permission is obtained from the water supply owner) based on the circumstances of the spill, including the physical and hydrogeologic environment and the type and size of the spill. Each investigation related to a spill varies depending on the circumstances involved. For that reason, the Department determined that the suggested change was not appropriate to be added to this final-form rulemaking at this time.
Many commentators argued that the Department should lessen the 10-day time frame afforded to it in section 3218(b) of the 2012 Oil and Gas Act to investigate a water supply since impacts to water supplies are both spatial and temporal. While the Department cannot change the statutory language, it is committed to investigate all claims of water supply pollution or diminution in a timely manner. This commitment can be found in Department policy Standards and Guidelines for Identifying, Tracking, and Resolving Oil and Gas Violations, Commonwealth of Pennsylvania, Department of Environmental Protection, No. 820-4000-001, revised January 17, 2015.
§ 78a.52. Predrilling or prealteration survey
Section 3218(c) of the 2012 Oil and Gas Act establishes a presumption of liability for an operator who impacts a water supply located within a certain distance from the wellbore and within a certain time frame. Section 3218(d)(1)(i) of the 2012 Oil and Gas Act allows an operator to rebut the presumption by proving that ''the pollution existed prior to the drilling or alteration activity as determined by a predrilling or prealteration survey.'' The Department received significant public comment that the regulation should include a specific list of potential contaminants that shall be analyzed for in each predrilling or prealteration survey.
The Department believes that the General Assembly chose to place the onus of not conducting a predrill survey on the backs of operators, who might not be able to rebut a presumption of liability if a water supply is not sampled prior to drilling or a particular substance is not tested for by the operator. By failing to establish predrill water quality, the operator opens itself up to liability for any failure to meet drinking water standards in any water supply located within the presumption's radius for any substance found in the water supply. Therefore, presumption is more protective of water supplies than a prescribed list of contaminates to be sampled for with a predrill water sample. The Department will require water supplies impacted by oil and gas operations to be restored to SDWA standards or better, based upon the predrill water supply survey results.
This final-form rulemaking allows an operator to submit a copy of all predrill sample results taken as part of a survey to the Department by electronic means. Prior to this final-form rulemaking, operators were required to submit each individual's sample by mail as it was completed, which was much less efficient for operators and the Department due to the comprehensive nature of the analysis and the way analyses are completed. The Department received significant public comment regarding the time frames under which this information was required to be submitted. This final-form rulemaking allows all sample results pertaining to the well of concern to be submitted to the Department by the operator 10 days prior to the start of drilling of the well in a single coordinated report. The Department believes that this change allows this portion of this final-form rulemaking to strike an appropriate balance between being reasonable and protective of public health and safety and the environment. The Department does not believe that it is appropriate to accept sample results as predrill samples after oil and gas activity has begun.
Availability of data to the public
Many commentators argued that the Department should make all predrill sample results available to the public. The Department does not provide predrill data to the public, unless all identifying information is redacted, to protect the privacy and rights of the property owners.
§ 78a.52a. Area of review
§ 78a.73. General provision for well construction and operation
Because the requirements in § 78a.52a and § 78a.73 (relating to general provision for well construction and operation) are so intertwined, the Department will address changes to these sections and the comments received on them together.
Pre-hydraulic fracturing surveys
The Department estimates that there are approximately 300,000 abandoned wells across this Commonwealth. A serious risk to waters of the Commonwealth is posed when an operator inadvertently alters an abandoned well by inducing hydraulic or pressure communication during the hydraulic fracturing process. Altering an abandoned well by subjecting it to pressures and reservoir sections it was not necessarily built to isolate can and has led to a number of issues, including methane migration and water supply impacts. Even in instances when water supplies are not affected, communication with any adjacent oil or gas well has the potential to lead to well control incidents that may pose serious safety hazards.
In addition, STRONGER reviewed the Commonwealth's oil and gas program in 2010 and 2013. Although generally complementary of the Commonwealth's program, among other suggestions the reviews did urge the Department to ''require operators to evaluate and mitigate potential risk of hydraulic fracturing communication with active, abandoned or orphan wells and other potential conduits that penetrate target formation or confining formations above (STRONGER Guidelines Section 9.2.1.).'' 2013 STRONGER Report, pages 51 and 52. It is important to note that the STRONGER recommendation on this topic did not make any distinction between hydraulically fracturing a conventional or unconventional well.
Section 78a.52a of this final-form rulemaking require operators to identify abandoned, orphan, active and inactive wells within 1,000 feet of the vertical and horizontal wellbore prior to hydraulic fracturing. The review distance is set at 500 feet for vertical oil wells in § 78.52a. The identification process requires operators to review the Department's orphan and abandoned well database, review farm line maps and submit a questionnaire to landowners whose property lies within the prescribed area of review prior to drilling in cases where hydraulic fracturing activities are anticipated at the well site. Other available databases and historical sources shall also be consulted.
Section 78a.73 indicates which subset of the identified wells shall be monitored based on vertical proximity to the stimulated interval. Wells that penetrate within defined vertical separation distances have the potential to serve as preferential pathways allowing pollution of the waters of the Commonwealth. Monitoring protocols will be based on the level of risk posed by individual well sites within the area of review and represent a mechanism for minimizing or altogether eliminating the potential for any lasting environmental impacts or other safety hazards.
Section 78a.52a also accounts for scenarios where access to well sites may be limited or previously unidentified geologic features may affect hydraulic fracturing activities through the introduction of provisions that require operators to monitor treatment pressures and volumes during stimulation activities. Monitoring allows practical operational flexibility with regard to the mechanisms available for the identification of fracture propagation possibly representative of a communication event.
When communication incidents are not observed immediately, the extent of the environmental impacts may be more severe. Remediation activities, such as stream diversions, the installation and maintenance of treatment systems, and repairs to affected wells or plugging activities are costly and may require operators to finance projects over the course of several years. For example, workover reports submitted to the Department in association with an ongoing stray gas migration case in northeastern Pennsylvania document well repairs amounting to tens of thousands of dollars a day. Depending on when a communication is noted, future wells may be drilled that are not considerate of open communication pathways. These wells may have to be abandoned prematurely or certain fracture stages may have to remain unstimulated, thus reducing the economic value of the new well and the efficiency of resource recovery. This final-form rulemaking strikes a reasonable balance between the costs of conducting the area of review survey and monitoring offset wells and the benefit associated with avoiding communication incidents. This benefit will be realized by operators and the citizens of this Commonwealth.
To further elaborate on one notable consequence of communication incidents, it is important to note that hundreds of documented stray gas migration investigations have taken place during the modern era of oil and gas development in this Commonwealth, that is, between 1984 and the present day. Prior to passage of the 1984 Oil and Gas Act, it is difficult to speculate at what frequency these incidents occurred. A subset of these incidents has been directly attributed to communications with abandoned wells during hydraulic fracturing. In association with a certain number of the total recorded stray gas migration incidents in this Commonwealth, water supplies have been impacted for periods extending over several years. In some cases, property damage has resulted and lives have been lost due to the characteristics of methane gas under certain conditions.
Final-form § 78a.52a, which requires operators to document due diligence in a consistent manner and report unanticipated communication incidents that occur in a systematic way, will have far-reaching benefits and minimal costs. Addressing this particular issue has been supported by the STRONGER organization, and comports with the 2012 Oil and Gas Act, which intends that oil and gas wells be constructed in a way to prevent gas and other fluids from entering sources of fresh groundwater.
§ 78a.53. Erosion and sediment control and stormwater management
The Department added cross-references to this final-form rulemaking to two additional Departmental guidance documents addressing issues regarding erosion and sediment control.
§ 78.55. Control and disposal planning
In this final-form rulemaking, § 78.55 is amended to delete subsection (f), which related exclusively to emergency response planning for unconventional wells. This is the only change to this section retained in this final-form rulemaking at the direction of the Office of Attorney General during its review of the pre-Act 52 final-form regulations for form and legality.
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