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PROPOSED RULEMAKING

ENVIRONMENTAL
QUALITY BOARD

[ 25 PA. CODE CH. 78 ]

Environmental Protection Performance Standards at Oil and Gas Well Sites

[43 Pa.B. 7377]
[Saturday, December 14, 2013]

 The Environmental Quality Board (Board) proposes to amend Chapter 78 (relating to oil and gas wells). The proposed rulemaking would amend Chapter 78 to update the requirements regarding surface activities associated with the development of oil and gas wells. Additionally, the proposed amendments would address recent statutory changes in the act of February 14, 2012 (P. L. 87, No. 13) (Act 13), codified at 58 Pa.C.S. §§ 2301—3504.

 The proposed rulemaking would update existing requirements regarding containment of regulated substances, waste disposal, site restoration and reporting releases. The proposed rulemaking would establish new planning, notice, construction, operation, reporting and monitoring standards for surface activities associated with the development of oil and gas wells. This includes requirements for freshwater impoundments, centralized impoundments, containment systems and practices for unconventional wells, wastewater processing, borrow pits, gathering lines, horizontal directional drilling, temporary pipelines and road-spreading of brine. The proposed rulemaking would also add new requirements for addressing impacts to public resources, identifying and monitoring orphaned and abandoned wells during hydraulic fracturing activities, and water management planning. These additional requirements will provide increased protection of public health, safety and the environment.

 This proposed rulemaking was adopted by the Board at its meeting on August 27, 2013.

A. Effective Date

 This proposed rulemaking will be effective upon final-form 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 Nolan, Assistant Counsel, Bureau of Regulatory Counsel, P. O. Box 8464, Rachel Carson State Office Building, Harrisburg, PA 17105-8464, (717) 787-7060. Information regarding submitting comments on this proposed rulemaking appears in Section J of this preamble. Persons with a disability may use the AT&T Relay Service, (800) 654-5984 (TDD users) or (800) 654-5988 (voice users). This proposed rulemaking is available on the Department of Environmental Protection's (Department) web site at www.dep.state.pa.us (select ''Public Participation'').

C. Statutory Authority

 This proposed rulemaking is being made under the authority of 58 Pa.C.S. §§ 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 (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 (35 P. S. § 6026.104) and sections 1917-A and 1920-A of The Administrative Code of 1929 (71 P. S. §§ 510-17 and 510-20).

D. Background and Purpose

 The proposed rulemaking will amend the current oil and gas well regulations and add additional controls to the surface activities on a well site. Over the last several years, advances in drilling and completion technologies have attracted interest in producing natural gas from unconventional formations in this Commonwealth, including the Marcellus Shale formation. Compared to conventional oil and gas development in this Commonwealth, these recent advances involve larger well sites, larger centralized freshwater and waste storage facilities, mobile wastewater processing facilities, larger volumes of water for hydraulic fracturing activities, new pipelines systems and increased amounts of regulated substances generated during drilling and hydraulic fracturing activities. Additionally, on February 14, 2012, Governor Corbett signed Act 13 into law. Act 13 repealed the Oil and Gas Act (58 P. S. §§ 601.101—601.605). Act 13 amended and consolidated the provisions of the repealed act into 58 Pa.C.S. §§ 3201—3274 (relating to development) (2012 Oil and Gas Act). The 2012 Oil and Gas Act contains new environmental protections for unconventional wells and directs the Board to promulgate specific regulations. For these reasons, the Department initiated this proposed rulemaking.

 This proposed rulemaking would update Chapter 78 with revised planning, performance, notice, operation, reporting and monitoring standards to strengthen environmental protections associated with the development of oil and gas wells. The proposed amendments include new requirements for considering impacts to public resources, water supply restoration or replacement, identification of orphaned and abandoned wells, temporary storage of regulated substances, freshwater impoundments, centralized impoundments, waste management, containment systems and practices for unconventional wells, site restoration, borrow pits, gathering lines, horizontal directional drilling, temporary pipelines, water management plans (WMP) and road-spreading activities.

 On February 16, 2012, the Department presented a conceptual summary of the proposed amendments to Chapter 78 to the Oil and Gas Technical Advisory Board (TAB). After the enactment of Act 13, this summary was revised and discussed with TAB on August 15, 2012. A draft of the proposed rulemaking was discussed at the TAB meeting on February 20, 2013. In response to TAB's comments, the Department revised the draft proposed rulemaking and presented it to TAB on April 23, 2013, for their consideration. At the April 23, 2013, meeting, TAB voted unanimously to recommend that the Board publish this proposed rulemaking.

Status of the Act 13 Litigation (Robinson Township et al. v. Commonwealth of Pennsylvania, et al.)

 By way of further background, 58 Pa.C.S. § 3215(b)(4) (relating to well location restrictions) provides the Department the authority to issue waivers from certain well location restrictions upon submission of a plan identifying additional measures, facilities or practices to be employed during well site construction, drilling and operations necessary to protect the waters of this Commonwealth. On July 26, 2013, in Robinson Township, et al. v. Commonwealth of Pennsylvania, et al., Pa. Commw. No. 284 MD 2012, the Commonwealth Court held that 58 Pa.C.S. § 3215(b)(4) is unconstitutional, null and void in violation of the nondelegation doctrine. On July 27, 2013, the Commonwealth filed an appeal of this decision to the Pennsylvania Supreme Court. On August 15, 2012, the Commonwealth Court ruled to stay the decision preventing the Commonwealth Court's July 26, 2012 Opinion and Order from taking effect until final resolution of the issue by the Pennsylvania Supreme Court. On October 17, 2012, the Pennsylvania Supreme Court heard oral arguments regarding this matter. A decision from the Pennsylvania Supreme Court is still pending.

E. Summary of Regulatory Requirements

§ 78.1. Definitions

 The proposed rulemaking contains new or revised definitions for ''Act 2,'' ''anti-icing,'' ''approximate original conditions,'' ''body of water,'' ''borrow pit,'' ''centralized impoundment,'' ''condensate,'' ''containment system,'' ''conventional formation,'' ''conventional well,'' ''de-icing,'' ''freeboard,'' ''freshwater impoundment,'' ''gathering pipeline,'' ''mine influenced water,'' ''oil and gas operations,'' ''PCSM plan,'' ''pit,'' ''pre-wetting,'' ''process or processing,'' ''PPC plan,'' ''regional groundwater table,'' ''regulated substance,'' ''stormwater,'' ''temporary pipelines,'' ''watercourse'' and ''wetland'' to reflect the proposed requirements. Under statutory changes in Act 13, this rulemaking provides new definitions for ''act,'' ''owner,'' ''public water supply,'' ''water management plan,'' ''water purveyor,'' ''water source'' and ''well operator or operator.''

§ 78.15. Application requirements

 The proposed revisions to subsection (a) will require well permit applications to be submitted electronically through the Department's web site.

 Subsection (c) is proposed to be added to address statutory changes in Act 13 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 proposed to be added to require 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 (relating to erosion and sediment control). For that reason, subsection (e) is proposed to be 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) is proposed to be added to outline a process for the Department to consider the impacts to public resources when making a determination on a well permit in accordance with requirements in the 2012 Oil and Gas Act. Subsection (f) proposes to require well permit applicants to identify when the proposed well site or access road may impact a listed public resource, notify applicable jurisdictional agencies and provide the Department and the jurisdictional 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 jurisdictional agencies the opportunity to submit comments to the Department, including any recommendations to avoid or minimize impacts, during a 15-day time frame.

 Act 13 directed the Board to promulgate regulations for the Department to condition a well permit based on its impact to public resources. Proposed subsection (g) will implement this new statutory requirement providing 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 58 Pa.C.S. requires the Department to consider the impact of the 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.

§ 78.18. Disposal and enhanced recovery well permits

 Subsection (d) is proposed to be added to specify that storage and waste processing requirements apply to disposal and enhanced recovery well sites.

§ 78.51. Protection of water supplies

 The proposed amendments clarify that the presumption of liability established in 58 Pa.C.S. § 3218(c) (relating to protection of water supplies) does not apply to pollution resulting from well site construction activities.

 Act 13 established a new provision that specifies a restored or replaced water supplies must meet the standards in the Pennsylvania Safe Drinking Water Act (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 is proposed to be amended to reflect this statutory language.

§ 78.52. Predrilling or prealteration survey

 The proposed amendments to subsection (d) establish a new process for submitting predrill sample results to the Department and applicable water users. Under this proposed process, an operator electing to preserve its defenses under 58 Pa.C.S. § 3218(d)(1)(i) and (2)(i) 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. A copy of sample results must be provided to water users within 10 business days of receipt of the sample results.

 Proposed subsection (g) reflects new Act 13 requirements that unconventional well operators provide written notice to water supply owners that the presumption established in 58 Pa.C.S. § 3218(c) 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.

§ 78.52a. Abandoned and orphaned well identification

 This proposed section requires operators to identify orphaned and abandoned wells in proximity to the vertical and horizontal well bore prior to hydraulically fracturing a well. The section outlines how operators shall 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.

§ 78.53. Erosion and sediment control

 The proposed amendments to this section cross reference the requirements of Chapter 102. This section also specifies that best management practices for erosion and sediment control for oil and gas activities are listed in the Erosion and Sediment Pollution Control Program Manual, Commonwealth of Pennsylvania, Department of Environmental Protection, No. 363-2134-008, as amended and updated, and the Oil and Gas Operators Manual, Commonwealth of Pennsylvania, Department of Environmental Protection, Guidance No. 550-0300-001, as amended and updated.

§ 78.55. Control and disposal planning; emergency response for unconventional well sites

 The proposed amendments to this section clarify Preparedness, Prevention and Contingency (PPC) plan requirements for oil and gas operations. Persons conducting oil and gas operations shall prepare and implement site-specific PPC plans according to the requirements in § 91.34 (relating to activities utilizing pollutants) and Chapter 102. Further proposed changes provide that the well operator shall prepare and develop a site-specific PPC plan prior to storing, using, generating or transporting regulated substances to, on or from a well site from the drilling, alteration, production, plugging or other activity associated with oil and gas wells.

 Proposed amendments to this section would further require that the unconventional well operator's PPC plan describe containment practices to be utilized and the area of the well site where containment systems will be employed as required under proposed § 78.64a (relating to containment systems and practices at unconventional well sites) as well as a description of equipment to be kept onsite during drilling and hydraulic fracturing activities that can be used to prevent spills. The proposed 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.

§ 78.56. Temporary storage

 The proposed amendments to this section include changing the heading of the section from ''pits and tanks for temporary containment'' to ''temporary storage'' to clarify the difference between storage requirements and containment requirements in proposed § 78.64a.

 Paragraph (a)(2) is proposed to be added to specify that modular aboveground storage structures may be used to temporarily contain regulated substances upon prior Department approval and notice prior to installation. This paragraph also proposes that the Department will maintain a list of approved modular structures on its web site.

 The proposed amendments to this section also include new monitoring requirements for pits and tanks at unconventional well sites or, in the alternative, fencing requirements for pits and valve and access lid requirements for tanks. Additionally, this section proposes new signage requirements for tanks at unconventional well sites. The amendments also propose new construction standards for pits at unconventional well sites, including liner compatibility testing, liner seam testing, inspection requirements, notification to the Department prior to pit liner installation and a demonstration that the pit bottom is 20 inches above the seasonal high groundwater table.

§ 78.57. Control, storage and disposal of production fluids

 The proposed 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. If new, refurbished or replaced tanks are used to store these fluids, these tanks must be equipped with secondary containment. This section also proposes new performance and technical standards for tanks storing brines and other production fluids generated during production operations. Additionally, this section proposes a process for identifying and removing or obtaining approval to use underground or partially buried storage tanks that are used to store brine and other fluids produced during operation of the well.

§ 78.58. Onsite processing

 This section proposes to delete provisions regarding the approval of pits that existed prior to July 29, 1989. The amendments also propose new provisions regarding wastewater processing at well sites. Subsection (a) proposes to allow operators to process fluids generated by oil and gas wells at the well site where the fluids were generated or at the well site where all of the fluid is intended to be beneficially used to develop, drill or stimulate a well upon Department approval. Subsection (e) proposes a process for using approved processing facilities at subsequent well sites. Subsection (b) proposes specific activities that do not require Department approval, including mixing fluids with freshwater, aerating fluids or filtering solids from fluids. Proposed subsection (c) specifies that drill cuttings may only be processed at the well site where those drill cuttings were generated, if approved by the Department.

§ 78.59a. Impoundment embankments

 This proposed section contains design and construction standards for both freshwater and centralized impoundments, including construction and stabilization requirements for embankments.

§ 78.59b. Freshwater impoundments

 This proposed section creates registration, performance, and safety and security requirements for freshwater impoundments. This proposed section would require freshwater impoundments to be 20 inches above the seasonal high groundwater table and would require operators to document the depth of the seasonal high groundwater table, the manner that it was ascertained, and the distance between the seasonal high groundwater table and the impoundments. This section also proposes a restoration requirement for freshwater impoundments. Additionally, this section contains a process for storing mine influenced water in freshwater impoundments to ensure that it will not result in pollution to waters of the Commonwealth.

§ 78.59c. Centralized impoundments

 This proposed section would establish permitting requirements for centralized impoundments in Chapter 78. This section proposes restrictions to the location of centralized impoundments, setback requirements, and design and construction standards, including sub-base, secondary liner, leak detection system and primary liner requirements. Additionally, this section proposes that persons seeking to construct a centralized impoundment shall complete a baseline hydrological investigation to document background conditions. Centralized impoundment operators shall also install, operate and maintain a water quality monitoring system. Further, this section proposes new requirements for oversight by professional geologists and licensed engineers. Additionally, this section proposes new restoration requirements for centralized impoundments.

§ 78.60. Discharge requirements

 The proposed 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 proposed amendments add fill or dredged material to this section.

§ 78.61. Disposal of drill cuttings

 The proposed amendments to this section would specify the loading and application rate for the land application of drill cuttings. Additionally, this section provides that the Department will maintain a list of approved solidifiers for the disposal of uncontaminated drill cuttings in pits. Further, this section specifies that the operator shall notify the Department prior to disposing drill cuttings under this section.

§ 78.62. Disposal of residual waste—pits

 The proposed amendments to this section clarify that solid waste generated by hydraulic fracturing of unconventional wells or processing wastewater under § 78.58 (relating to onsite processing) may not be disposed of in a pit on the well site. However, residual waste, including contaminated drill cuttings, can be disposed of in a pit on the well site. Additionally, the proposed amendments require the operator to notify the Department prior to disposing residual waste. This section also proposes a requirement that operators determine that the pit bottom is 20 inches above the seasonal high groundwater table prior to using the pit and that the determination be certified by a soil scientist or other similarly trained person using accepted and documented scientific methods. Compliance with this section shall be documented and made available to the Department upon request, as well as submitted in the well site restoration report.

§ 78.63. Disposal of residual waste—land application

 The proposed amendments to this section clarify that solid waste generated by hydraulic fracturing of unconventional wells or processing fluids under § 78.58 may not be disposed of by land application at the well site. However, residual waste, including contaminated drill cuttings, can be disposed of on the well site by land application. The amendments to this section include a new provision that requires the operator to notify the Department 3 business days prior to land application. This notice shall be submitted electronically to the Department through its web site and include the date the residual waste will be disposed. Compliance with this section shall be documented and made available to the Department upon request as well as submitted in the well site restoration report.

§ 78.64a. Containment systems and practices at unconventional well sites

 This proposed 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 Act 13 requirements. This section specifies when these systems and practices shall be employed. Further, this proposed section specifies secondary containment requirements. Additionally, this section proposes provisions regarding subsurface containment systems.

§ 78.65. Site restoration

 The proposed amendments to this section would clarify 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.

 Act 13 created a provision that allows for a 2-year extension of the restoration requirements upon approval of a plan that demonstrates that the extension will result in less earth disturbance, increased water reuse or more efficient development of the resource. This section describes the information that must be submitted to obtain a 2-year extension under 58 Pa.C.S. § 3216 (relating to well site restoration).

 This section also proposes that written consent of the landowner satisfies the restoration requirements so long as the operator complies with the post-construction stormwater management requirements in Chapter 102. Additionally, this section proposes amendments to the well site restoration report requirements, including forwarding a copy to the surface landowner.

§ 78.66. Reporting and remediating releases

 The proposed amendments to this section include amending the heading of the section to include remediating releases. Proposed amendments to this section also clarify the requirements regarding spills and releases of regulated substances on or adjacent to well sites and access roads. The proposed amendments further specify what spills or releases shall be reported to the Department, when and how a report shall be made, what information needs to be reported and necessary corrective measures.

 The proposed amendments also clarify that the operator or responsible party shall remediate an area affected by a spill or release, in accordance with subsection (c), which outlines three different remediation options.

§ 78.67. Borrow pits

 This proposed section provides requirements for noncoal borrow areas for oil and gas well development, including performance, registration and restoration requirements.

§ 78.68. Oil and gas gathering lines

 This proposed 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. In accordance with Act 13 requirements, this section also contains corrosion control requirements for buried metallic gathering lines.

§ 78.68a. Horizontal directional drilling for oil and gas pipelines

 This proposed section contains requirements for horizontal directional drilling 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 proposes that Department approval is required prior to using drilling fluid other than bentonite and water. Additionally, this section specifies that horizontal directional drilling activities may not result in a discharge of drilling fluids to waters of the Commonwealth. 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 obtained by the operator be reported to the Department within 24 hours.

§ 78.68b. Temporary pipelines for oil and gas operations

 This proposed section contains the requirements for temporary 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.

§ 78.69. Water management plans

 This proposed section addresses posting, monitoring and reporting in the Ohio River Basin; reuse planning requirements; and WMP expiration and renewals. This proposed section also outlines the circumstances under which the Department may deny a WMP application or suspend, revoke or terminate an approved WMP.

§ 78.70. Road-spreading of brine for dust control and road stabilization

 This proposed section includes requirements regarding road-spreading of brine from oil and gas wells for dust suppression and road stabilization. This section does not apply to fluids generated from unconventional wells, including Marcellus wells.

 This section proposes that use of brine for dust suppression and road stabilization shall only be conducted under an annual plan approved by the Department. This section further proposes planning, notification, operation, performance, reporting and recordkeeping requirements. This section also specifies that activities conducted under this section are deemed to have a residual waste permit by rule.

§ 78.70a. Pre-wetting, anti-icing and de-icing

 This proposed section includes requirements for use of brine from conventional oil and gas wells for pre-wetting, anti-icing and de-icing. This section does not apply to fluids generated from unconventional wells, including Marcellus wells.

 This section proposes that use of brine for pre-wetting, anti-icing and de-icing activities shall only be conducted under an annual plan approved by the Department. This section proposes plan requirements, operation standard, constituent concentration limits and application rates. Additionally, the section proposes sampling procedures of brine sources and recordkeeping requirements for the analytical evaluations as well as monthly reporting requirements. This section further specifies that activities conducted under this section are deemed to have a residual waste permit by rule.

§ 78.73. General provision for well construction and operation

 Proposed subsections (c) and (d) require operators to visually inspect orphaned and abandoned wells identified under proposed § 78.52a (relating to abandoned and orphaned well identification) during hydraulic fracturing activities. Subsection (c) proposes to require operators to notify the Department of any changes to those wells and to take action to prevent pollution or discharges to the surface. The amendments codify the requirement that an operator that alters an abandoned and orphaned well by hydraulic fracturing must plug that well.

§ 78.122. Well record and completion report

 The proposed amendments to this section address Act 13 statutory requirements, including new well report and stimulation record requirements.

§ 78.123. Logs and additional data

 The proposed changes address Act 13 requirements and clarify when industry logs and data collected during drilling activities need to submitted to the Department.

§ 78.309. Phased deposit of collateral

 This section is proposed to be deleted in response to new bonding requirements in Act 13.

F. Benefits, Costs and Compliance

Benefits

 Both the residents of this Commonwealth and the regulated community will benefit from this proposed rulemaking. The proposed process for identifying and considering the impacts to public resources will ensure that any probable harmful impacts to public resources will be avoided or mitigated while providing for the optimal development of oil and gas resources. The proposed regulations that require operators to identify orphaned and abandoned wells and monitor these wells during hydraulic fracturing activities will minimize potential impacts to waters of the Commonwealth. The proposed containment systems and practices requirements for unconventional well sites will minimize spills and releases of regulated substances at well sites and ensure that any spills or releases are properly contained. The proposed amendments to the reporting requirements for releases will ensure Statewide consistency for reporting and remediating spills and releases.

 New planning, notification, construction, operation, testing and monitoring requirements for pits, tanks, modular aboveground storage structures, freshwater impoundments, centralized impoundments and pipelines will help prevent releases or spills that may otherwise result without these additional precautions. Additionally, the proposed monitoring and fencing requirements for pits and impoundments and tank valve and access lid requirements for tanks ensure protection from unauthorized acts of third parties and damage from wildlife. Further, the proposed requirements regarding wastewater processing at well sites will encourage the beneficial use of wastewater for drilling and hydraulic fracturing activities.

 The proposed amendments contain several new notification requirements which will enable Department staff to effectively and efficiently coordinate inspections at critical stages of pit construction, modular aboveground storage facility installation, drill cutting or residual waste disposal, horizontal directional drilling and road-spreading activities. Additionally, proposed electronic submission requirements for well permits, notifications and predrill surveys will enhance efficiency for both the industry and the Department. As new areas of this Commonwealth are developed for natural gas, the proposed regulations will avoid many potential health, safety and environmental issues as well as provide a consistent and efficient approach to oil and gas development in this Commonwealth.

Compliance Costs

 There are compliance costs associated with the additional environmental protection measures in this proposed rulemaking. These additional costs primarily fall on unconventional well operators due to the passage of the 2012 Oil and Gas Act.

 The estimated total compliance costs of this this proposed rulemaking on all unconventional operators are between $75,002,050 and $96,636,950 annually. The estimated savings of this proposed rulemaking on unconventional operators is approximately $21,734,700 annually. Taken together, the estimated net cost of this proposed rulemaking on unconventional operators is between $53,267,350 and $74,902,250 annually.

 The estimated compliance costs of this proposed rulemaking on conventional operators are between $5,389,360 and $12,006,000. The estimated savings of this proposed rulemaking on conventional operators is approximately $36,680 per year. The estimated net cost of this proposed rulemaking on conventional operators is between $5,352,680 and $11,969,320.

Compliance Assistance Plan

 The Department has worked extensively with representatives from the regulated community and leaders from several industry organizations have attended the advisory committee meetings when the proposed amendments have been discussed. Therefore, the requirements in this proposed rulemaking are well known.

 The Department plans to schedule training sessions for the regulated community to address the new regulatory requirements when the regulation is finalized. Additionally, Department field staff are the first points of contact for technical assistance and will be able to provide guidance to the regulated community through technical information and direct field-level assistance.

 The Department also plans to provide training when the proposed rulemaking is finalized on how to identify and document the seasonal high groundwater table as required in proposed §§ 78.56(a)(11) and 78.62(a)(9) (relating to temporary storage; and disposal of residual waste—pits) and current § 78.63(a)(9) (relating to disposal of residual waste—land application).

Paperwork Requirements

 The proposed rulemaking contains several new planning requirements, when applicable, including site characterization and groundwater testing plans for centralized impoundments, a mine influenced water storage plan and remedial action plans for spill and releases.

 New notification requirements are proposed for the following, when applicable: receipt of water supply complaints; installation of modular storage structures; use of previously approved wastewater processing facilities; centralized impoundment leakage; disposal of drill cuttings; disposal of residual waste; horizontal directional drilling; and road-spreading activities. These notifications are proposed to be submitted electronically through the Department's web site, thereby reducing paperwork.

 Additionally, the proposed amendments require the development and submission of forms regarding the following activities, when applicable: consideration of public resources; location of orphaned and abandoned wells; certification by licensed professionals regarding pits; removal of underground or partially buried tanks; registration of freshwater impoundments; plans for mine-influenced water storage; extensions for well site restoration; and planning and reporting of road spreading.

 The amendments propose that a permit is required prior to the construction of a centralized impoundment. However, this is not a new requirement. Additionally, there is a new proposed requirement that well permits be submitted electronically.

G. Pollution Prevention

 The Pollution Prevention Act of 1990 (42 U.S.C.A. §§ 13101—13109) established a National policy that promotes pollution prevention as the preferred means for achieving state environmental protection goals. The Department encourages pollution prevention, which is the reduction or elimination of pollution at its source, through the substitution of environmentally friendly materials, more efficient use of raw materials or the incorporation of energy efficiency strategies. Pollution prevention practices can provide greater environmental protection with greater efficiency because they can result in significant cost savings to facilities that permanently achieve or move beyond compliance.

 This proposed rulemaking will continue to ensure that the citizens and the environment of this Commonwealth experience the advantages of the oil and gas resources in this Commonwealth. The proposed amendments will minimize impacts to waters of the Commonwealth.

 The proposed amendments include new requirements to identify and monitor orphaned and abandoned wells to minimize the potential impacts to waters of the Commonwealth from these pathways. New material specifications and performance standards for containment systems and practices will ensure that spills and releases are properly contained, thereby preventing regulated substances associated with oil and gas operations from escaping into the environment. Additionally, new planning, notification, construction, operation, inspection and monitoring requirements for pits, tanks, freshwater impoundments, centralized impoundments, processing activities, disposal methods and pipelines provide an additional degree of protection for waters of the Commonwealth.

H. Sunset Review

 These regulations will be reviewed in accordance with the sunset review schedule published by the Department to determine whether the regulations effectively fulfill the goals for which they were intended.

I. Regulatory Review

 Under section 5(a) of the Regulatory Review Act (71 P. S. § 745.5(a)), on December 4, 2013, the Department submitted a copy of this proposed rulemaking and a copy of a Regulatory Analysis Form to the Independent Regulatory Review Commission (IRRC) and to the Chairpersons of the House and Senate Environmental Resources and Energy Committees. A copy of this material is available to the public upon request.

 Under section 5(g) of the Regulatory Review Act, IRRC may convey any comments, recommendations or objections to the proposed rulemaking within 30 days of the close of the public comment period. The comments, recommendations or objections must specify the regulatory review criteria which have not been met. The Regulatory Review Act specifies detailed procedures for review, prior to final publication of the rulemaking, by the Department, the General Assembly and the Governor of comments, recommendations or objections raised.

J. Public Comments

 Interested persons are invited to submit written comments, suggestions or objections regarding the proposed rulemaking to the Environmental Quality Board. Comments, suggestions or objections must be received by the Board by February 12, 2014. Comments submitted by facsimile will not be accepted. In addition to the submission of comments, interested persons may also submit a one-page summary of their comments to the Board. The summary of comments must also be received by the Board by February 12, 2014, and will be distributed to the Board and available publicly prior to the meeting when the final rulemaking will be considered by the Board.

 Comments including the submission of a one-page summary of comments may be submitted to the Board online, by e-mail, by mail or express mail as follows. If an acknowledgement of comments submitted online or by e-mail is not received by the sender within 2 working days, the comments should be retransmitted to the Board to ensure receipt.

 Comments may be submitted to the Board by accessing the Board's online Regulatory Comment System at http://www.ahs.dep.pa.gov/RegComments. Comments may be submitted to the Board by e-mail to RegComments@pa.gov. Written comments should be mailed to the Environmental Quality Board, P. O. Box 8477, Harrisburg, PA 17105-8477. Express mail should be sent to the Environmental Quality Board, Rachel Carson State Office Building, 16th Floor, 400 Market Street, Harrisburg, PA 17101-2301.

K. Public Hearings

 The Board will hold seven public hearings for the purpose of accepting comments on this proposed rulemaking. The hearings will be held at 6 p.m. on the following dates:

January 7, 2014 Tunkhannock High School
Auditorium
135 Tiger Drive
Tunkhannock PA 18657
January 9, 2014 West Chester University of Pennsylvania
Sykes Student Union—Theater
110 West Rosedale Avenue
West Chester, PA 19383
January 13, 2014 Pennsylvania College of Technology
Klump Academic Center
One College Avenue
Williamsport, PA 17701
January 15, 2014 Meadville Area Senior High School
Auditorium
930 North Street
Meadville, PA 16335
January 16, 2014 Good Hope Middle School
Auditorium
451 Skyport Road
Mechanicsburg, PA 17050
January 22, 2014 Washington and Jefferson College
Rossin Campus Center/Allen Ballroom
60 South Lincoln Street
Washington, PA 15301
January 23, 2014 Indiana University of Pennsylvania
Kovalchick Convention and Athletic Complex
711 Pratt Drive
Indiana, PA 15705

 Persons wishing to present testimony at a hearing are requested to contact the Environmental Quality Board, P. O. Box 8477, Harrisburg, PA 17105-8477, (717) 787-4526, at least 1 week in advance of the hearing to reserve time to present testimony. Oral testimony is limited to 5 minutes for each witness. Witnesses are requested to submit three written copies of their verbal testimony to the hearing chairperson at the hearing. Organizations are limited to designating one witness to present testimony on their behalf at each hearing.

 Persons in need of accommodations as provided for in the Americans with Disabilities Act of 1990 should contact the Environmental Quality Board at (717) 787-4526 or through the Pennsylvania AT&T Relay Service at (800) 654-5984 (TDD) or (800) 654-5988 (voice users) to discuss how the Environmental Hearing Board may accommodate their needs.

E. CHRISTOPHER ABRUZZO, 
Chairperson

Fiscal Note: 7-484. No fiscal impact; (8) recommends adoption.

Annex A

TITLE 25. ENVIRONMENTAL PROTECTION

PART I. DEPARTMENT OF ENVIRONMENTAL PROTECTION

Subpart C. PROTECTION OF NATURAL RESOURCES

ARTICLE I. LAND RESOURCES

CHAPTER 78. OIL AND GAS WELLS

Subchapter A. GENERAL PROVISIONS

§ 78.1. Definitions.

[(a) The words and terms defined in section 103 of the act (58 P. S. § 601.103), section 2 of the Coal and Gas Resource Coordination Act (58 P. S. § 502), section 2 of the Oil and Gas Conservation Law (58 P. S. § 402), section 103 of the Solid Waste Management Act (35 P. S. § 6018.103) and section 1 of The Clean Stream Law (35 P. S. § 691.1), have the meanings set forth in those statutes when the terms are used in this chapter.

(b)] (a) The following words and terms, when used in this chapter, have the following meanings, unless the context clearly indicates otherwise or as otherwise provided in this chapter:

Act[The Oil and Gas Act (58 P. S. §§ 601.101—601.605).] 58 Pa.C.S. §§ 3201—3274 (relating to development).

Act 2—The Land Recycling and Environmental Remediation Standards Act (35 P. S. §§ 6026.101—6026.908).

Anti-icing—Brine applied directly to a paved road prior to a precipitation event.

Approximate original conditions—Reclamation of the land affected to preconstruction contours so that it closely resembles the general surface configuration of the land prior to construction activities and blends into and complements the drainage pattern of the surrounding terrain, and can support the land uses that existed prior to oil and gas activities to the extent practicable.

Attainable bottom—The depth, approved by the Department, which can be achieved after a reasonable effort is expended to clean out to the total depth.

Body of water—The term as defined in § 105.1 (relating to definitions).

Borrow pit—An area of earth disturbance activity where rock, stone, gravel, sand, soil or similar material is excavated for construction of well sites, access roads or facilities that are related to oil and gas development.

Casing seat—The depth to which casing is set.

Cement—A mixture of materials for bonding or sealing that attains a 7-day maximum permeability of 0.01 millidarcies and a 24-hour compressive strength of at least 500 psi in accordance with applicable standards and specifications.

Cement job log—A written record that documents the actual procedures and specifications of the cementing operation.

Centralized impoundment—A facility that is:

(i) A natural topographic depression, manmade excavation or diked area formed primarily of earthen materials.

(ii) Designed to hold fluids or semifluids associated with oil and gas activities, including wastewater, flowback and mine influenced water, the escape of which may result in air, water or land pollution or endanger persons or property.

(iii) Constructed solely for the purpose of servicing multiple well sites.

Certified laboratory—A laboratory accredited by the Department under Chapter 252 (relating to environmental laboratory accreditation).

Coal area—An area that is underlain by a workable coal seam.

Coal protective casing—A string of pipe which is installed in the well for the purpose of coal segregation and protection. In some instances the coal protective casing and the surface casing may be the same.

Condensate—A low-density, high-API gravity liquid hydrocarbon phase that generally occurs in association with natural gas. For the purposes of this definition, high-API gravity is a specific gravity scale developed by the American Petroleum Institute for measuring the relative density of various petroleum liquids, expressed in degrees.

Conductor pipe—A short string of large-diameter casing used to stabilize the top of the wellbore in shallow unconsolidated formations.

Containment system—Synthetic liners, coatings, storage structures or other materials used in conjunction with a primary container that prevent spills to the ground surface or off the well site.

Conventional formation—A formation that is not an unconventional formation.

Conventional well—A bore hole drilled or being drilled for the purpose of or to be used for the production of oil or gas from a conventional formation.

De-icing—Brine applied to a paved road after a precipitation event.

Deepest fresh groundwater—The deepest fresh groundwater bearing formation penetrated by the wellbore as determined from drillers logs from the well or from other wells in the area surrounding the well or from historical records of the normal surface casing seat depths in the area surrounding the well, whichever is deeper.

Drill cuttings—Rock cuttings and related mineral residues generated during the drilling of an oil or gas well.

Freeboard—The vertical distance between the surface of an impounded or contained fluid and the lowest point or opening on a lined pit edge or open top storage structure.

Fresh groundwater—Water in that portion of the generally recognized hydrologic cycle which occupies the pore spaces and fractures of saturated subsurface materials.

Freshwater impoundment—A facility that is:

(i) Not regulated under § 105.3 (relating to scope).

(ii) A natural topographic depression, manmade excavation or diked area formed primarily of earthen materials although lined with synthetic materials.

(iii) Designed to hold fluids, including surface water, groundwater and other Department-approv-ed sources.

(iv) Constructed for the purpose of servicing multiple well sites.

Gas storage field—A gas storage reservoir and all of the gas storage wells connected to the gas storage reservoir.

Gas storage reservoir—The portion of a subsurface geologic formation or rock strata used for or being tested for storage of natural gas that:

 (i) Has sufficient porosity and permeability to allow gas to be injected or withdrawn, or both.

 (ii) Is bounded by strata of insufficient porosity or permeability, or both, to allow gas movement out of the reservoir.

 (iii) Contains or will contain injected gas geologically or by pressure control.

Gas storage well—A well located and used in a gas storage reservoir for injection or withdrawal purposes, or an observation well.

Gathering pipeline—A pipeline that transports oil, liquid hydrocarbons or natural gas from individual wells to an intrastate or interstate transmission pipeline.

Gel—A slurry of clay or other equivalent material and water at a ratio of not more than 7 barrels of water to each 100 pounds of clay or other equivalent matter.

Intermediate casing—A string of casing set after the surface casing and before production casing, not to include coal protection casing, that is used in the wellbore to isolate, stabilize or provide well control.

L.E.L.—Lower explosive limit.

[Marcellus Shale well—A well that when drilled or altered produces gas or is anticipated to produce gas from the Marcellus Shale geologic formation.]

Mine influenced water—Water in a mine pool or a surface discharge of water caused by mining activities that pollutes, or may create a threat of pollution to, waters of the Commonwealth. The term may also include surface waters that have been impaired by pollutional mine drainage as determined by the Department.

Noncementing material—A mixture of very fine to coarse grained nonbonding materials, including unwashed crushed rock, drill cuttings, earthen mud or other equivalent material approved by the Department.

Noncoal area—An area that is not underlain by a workable coal seam.

Nonporous material—Nontoxic earthen mud, drill cuttings, fire clay, gel, cement or equivalent materials approved by the Department that will equally retard the movement of fluids.

Nonvertical well

 (i) A well drilled intentionally to deviate from a vertical axis.

 (ii) The term includes wells drilled diagonally and wells that have horizontal bore holes.

Observation well—A well used to monitor the operational integrity and conditions in a gas storage reservoir, the reservoir protective area or strata above or below the gas storage horizon.

Oil and gas operations—The term includes the following:

(i) Well location assessment, seismic operations, well site preparation, construction, drilling, hydraulic fracturing, completion, production, operation, alteration, plugging and site restoration associated with an oil or gas well.

(ii) Water withdrawals, residual waste processing, water and other fluid management and storage used exclusively for the development of oil and gas wells.

(iii) Construction, installation, use, maintenance and repair of:

(A) Oil and gas pipelines.

(B) Natural gas compressor stations.

(C) Natural gas processing plants or facilities performing equivalent functions.

(iv) Construction, installation, use, maintenance and repair of all equipment directly associated with activities in subparagraphs (i)—(iii) to the extent that the equipment is necessarily located at or immediately adjacent to a well site, impoundment area, oil and gas pipeline, natural gas compressor station or natural gas processing plant.

(v) Earth disturbance associated with oil and gas exploration, production, processing, or treatment operations or transmission facilities.

Owner—A person who owns, manages, leases, controls or possesses a well or coal property. [For purposes of sections 203(a)(4) and (5) and 210 of the act (58 P. S. §§  601.203(a)(4) and (5) and 601.210), the term does not include those owners or possessors of surface real property on which the abandoned well is located who did not participate or incur costs in the drilling or extraction operation of the abandoned well and had no right of control over the drilling or extraction operation of the abandoned well.] The term does not apply to orphan wells, except [where] when the Department determines a prior owner or operator benefited from the well as provided in section [210(a)] 3220(a) of the act (relating to plugging requirements).

PCSM plan—Post-construction stormwater management plan—The term as defined in § 102.1 (relating to definitions).

PPC plan—Preparedness, prevention and contingency plan—A written preparedness, prevention and contingency plan.

Perimeter area—An area that begins at the outside coal boundaries of an operating coal mine and extends within 1,000 feet beyond those boundaries or an area within 1,000 feet beyond the mine permit boundaries of a coal mine already projected and permitted but not yet being operated.

Permanently cemented—Surface casing or coal protective casing that is cemented until cement is circulated to the surface or is cemented with a calculated volume of cement necessary to fill the theoretical annular space plus 20% excess.

Pit—A natural topographic depression, manmade excavation or diked area formed primarily of earthen materials designed to hold fluids, semifluids or solids associated with oil and gas activities, including, but not limited to, fresh water, wastewater, flowback, mine influenced water, drilling mud and drill cuttings, that services a single well site.

Pre-wetting—Mixing brine with antiskid material prior to roadway application.

Private water supply—A water supply that is not a public water supply.

Process or processing—The term has the same meaning as ''processing'' as defined in section 103 of the Solid Waste Management Act (35 P. S. § 6018.103).

Production casing—A string of pipe other than surface casing and coal protective casing which is run for the purpose of confining or conducting hydrocarbons and associated fluids from one or more producing horizons to the surface.

Public water supply[A water system that is subject to the Pennsylvania Safe Drinking Water Act (35 P. S. §§  721.1—721.17).] A source of water used by a water purveyor.

[Reportable release of brine—Spilling, leaking, emitting, discharging, escaping or disposing of one of the following:

(i) More than 5 gallons of brine within a 24-hour period on or into the ground at the well site where the total dissolved solids concentration of the brine is equal or greater than 10,000 mg/l.

(ii) More than 15 gallons of brine within a 24-hour period on or into the ground at the well site where the total dissolved solids concentration of the brine is less than 10,000 mg/l.]

Regional groundwater table

(i) The fluctuating upper water level surface of an unconfined or confined aquifer where the hydrostatic pressure is equal to the ambient atmospheric pressure.

(ii) The term does not include the perched water table or the seasonal high water table.

Regulated substance—Any substance defined as a regulated substance in section 103 of Act 2 (35 P. S. § 6026.103).

Retrievable—When used in conjunction with surface casing, coal protective casing or production casing, the casing that can be removed after exerting a prudent effort to pull the casing while applying a pulling force at least equal to the casing weight plus 5,000 pounds or 120% of the casing weight, whichever is greater.

Seasonal high groundwater table—The saturated condition in the soil profile during certain periods of the year. The condition can be caused by a slowly permeable layer within the soil profile and is commonly indicated by the presence of soil mottling.

Sheen—An iridescent appearance on the surface of the water.

Soil mottling—Irregular marked spots in the soil profile that vary in color, size and number.

Stormwater—Runoff from precipitation, snow-melt, surface runoff and drainage.

Surface casing—A string or strings of casing used to isolate the wellbore from fresh groundwater and to prevent the escape or migration of gas, oil or other fluids from the wellbore into fresh groundwater. The surface casing is also commonly referred to as the water string or water casing.

Temporary pipelines—Pipelines used for oil and gas operations that:

(i) Transport materials used for the drilling or hydraulic fracture stimulation, or both, of a well and the residual waste generated as a result of the activities.

(ii) Lose functionality after the well site it serviced has been restored under § 78.65 (related to site restoration).

Tophole water—Water that is brought to the surface while drilling through the strata containing fresh groundwater and water that is fresh groundwater or water that is from a body of surface water. Tophole water may contain drill cuttings typical of the formation being penetrated but may not be polluted or contaminated by additives, brine, oil or man induced conditions.

Total depth—The depth to which the well was originally drilled, subsequently drilled or the depth to which it was plugged back in a manner approved by the Department.

Tour—A workshift in drilling of a well.

Unconventional formation—A geological shale formation existing below the base of the Elk Sandstone or its geologic equivalent stratigraphic interval where natural gas generally cannot be produced at economic flow rates or in economic volumes except by vertical or horizontal well bores stimulated by hydraulic fracture treatments or by using multilateral well bores or other techniques to expose more of the formation to the well bore.

Unconventional well—A bore hole drilled or being drilled for the purpose of or to be used for the production of natural gas from an unconventional formation.

Vertical well—A well with a single vertical well bore.

WMP—Water Management Plan—A plan associated with drilling or completing a well in an unconventional formation that demonstrates that the withdrawal and use of water sources protects those sources, as required under law, and protects public health, safety and welfare.

Water protection depth—The depth to a point 50 feet below the surface casing seat.

Water purveyor[The owner or operator of a public water supply.] Either of the following:

(i) The owner or operator of a public water system as defined in section 3 of the Pennsylvania Safe Drinking Water Act (35 P. S. § 721.3).

(ii) Any person subject to the act of June 24, 1939 (P. L. 842, No. 365), known as the Water Rights Law.

Water source

(i) Any of the following:

(A) Water of the Commonwealth.

(B) A source of water supply used by a water purveyor.

(C) Mine pools and discharges.

(D) Any other waters that are used for drilling or completing a well in an unconventional formation.

(ii) The term does not include flowback or production waters or other fluids:

(A) Which are used for drilling or completing a well in an unconventional formation.

(B) Which do not discharge into waters of the Commonwealth.

Water supply—A supply of water for human consumption or use, or for agricultural, commercial, industrial or other legitimate beneficial uses.

Watercourse—The term as defined in § 105.1.

Well operator or operatorAny of the following:

(i) The person designated as the [well operator or] operator or well operator on the permit application or well registration.

(ii) If a permit or registration was not issued, [the term means] a person who locates, drills, operates, alters or plugs a well or reconditions a well with the purpose of production [therefrom] from the well.

[In cases where] (iii) If a well is used in connection with the underground storage of gas, [the term also means] a storage operator.

Well site—The area occupied by the equipment or facilities necessary for or incidental to the drilling, production or plugging of a well.

Wetland—The term as defined in § 105.1.

Workable coal seam—One of the following:

 (i) A coal seam in fact being mined in the area in question under the act and this chapter by underground methods.

 (ii) A coal seam which, in the judgment of the Department, reasonably can be expected to be mined by underground methods.

§ 78.2. [Scope] (Reserved).

[This chapter specifies procedures and rules for the drilling, alteration, operation and plugging of oil and gas wells, and for the operation of a coal mine in the vicinity of an oil or gas well.]

Subchapter B. PERMITS, TRANSFERS AND OBJECTIONS

PERMITS AND TRANSFERS

§ 78.13. Permit transfers.

 (a) No transfer, assignment or sale of rights granted under a permit or registration may be made without prior written approval of the Department. Permit transfers may be denied for the reasons set forth in section [201(e)(4) and (5) of the act (58 P. S. § 601.201(e)(4) and (5))] 3211(e.1), (4) and (5) of the act (relating to well permits).

*  *  *  *  *

§ 78.15. Application requirements.

 (a) An application for a well permit shall be submitted [on forms furnished by the] electronically to the Department through its web site and contain the information required by the Department to evaluate the application.

 (b) The permit application will not be considered complete until the applicant submits a complete and accurate plat, an approvable bond or other means of complying with section [215 of the act (58 P. S. § 601.215)] 3225 of the act (relating to bonding), the fee in compliance with § 78.19 (relating to permit application fee schedule), proof of the notification required under section 3211(b.1) of the act (relating to well permits), necessary requests for variance or waivers or other documents required to be furnished by law or the Department, and the information in subsections (c)—(e). The person named in the permit shall be the same person named in the bond or other security.

(c) The applicant shall submit information identifying parent and subsidiary business entities operating in this Commonwealth with the first application submitted after ______ , (Editor's Note: The blank refers to the effective date of adoption of this proposed rulemaking.) and provide any changes to its business relationships with each subsequent application.

(d) The applicant shall provide proof of consultation with the Pennsylvania Natural Heritage Program (PNHP) regarding the presence of a State or Federal threatened or endangered species where the proposed well site or access road is located. If the Department determines, based on PNHP data or other sources, that the proposed well site or access road may adversely impact the species or critical habitat, the applicant shall consult with the Department to avoid or prevent the impact. If the impact cannot be avoided or prevented, the applicant shall demonstrate how the impacts will be minimized in accordance with State and Federal laws pertaining to the protection of threatened or endangered flora and fauna and their habitat.

(e) If an applicant seeks to locate a well on a well site where the applicant has obtained a permit under § 102.5 (relating to permit requirements) and complied with § 102.6(a)(2) (relating to permit applications and fees), the applicant is deemed to comply with subsection (d).

(f) An applicant proposing to drill a well at a location listed in paragraph (1) shall notify the applicable resource agency, if any, in accordance with paragraph (2) and provide the information in paragraph (3) to the Department in the well permit application.

(1) This subsection applies if the proposed surface location of the well is located:

(i) In or within 200 feet of a publicly owned park, forest, game land or wildlife area.

(ii) In or within the corridor of a State or National scenic river.

(iii) Within 200 feet of a National natural landmark.

(iv) In a location that will impact other critical communities. For the purposes of this subparagraph, other critical communities means special concern species.

(v) Within 200 feet of a historical or archeological site listed on the Federal or State list of historic places.

(vi) In the case of an unconventional well, within 1,000 feet of a water well, surface water intake, reservoir or other water supply extraction point used by a water purveyor.

(2) The applicant shall notify the public resource agency responsible for managing the public resource identified in paragraph (1), if any. The applicant shall forward by certified mail a copy of the plat identifying the proposed location of the well, well site and access road and information in paragraph (3) to the public resource agency at least 15 days prior to submitting its well permit application to the Department. The applicant shall submit proof of notification with the well permit application. From the date of notification, the public resource agency has 15 days to provide written comments to the Department and the applicant on the functions and uses of the public resource and the measures, if any, that the public resource agency recommends the Department consider to avoid or minimize probable harmful impacts to the public resource where the well, well site and access road is located. The applicant may provide a response to the Department to the comments.

(3) The applicant shall include the following information in the well permit application on forms provided by the Department:

(i) An identification of the public resource.

(ii) A description of the functions and uses of the public resource.

(iii) A description of the measures proposed to be taken to avoid or mitigate impacts, if any.

(4) The information required in paragraph (3) shall be limited to the discrete area of the public resource that may be affected by the well, well site and access road.

(g) If the proposed well, well site or access road poses a probable harmful impact to a public resource, the Department may include conditions in the well permit to avoid or mitigate those impacts to the public resource's current functions and uses. The Department will consider the impact of any potential permit condition on the applicant's ability to exercise its property rights with regard to the development of oil and gas resources and the degree to which any potential condition may impact or impede the optimal development of the oil and gas resources. The issuance of a permit containing conditions imposed by the Department under this subsection is an action that is appealable to the Environmental Hearing Board. The Department has the burden of proving that the conditions were necessary to protect against a probable harmful impact of the public resource.

§ 78.17. Permit renewal.

 An operator may request a 1-year renewal of a well permit. The request shall be accompanied by a permit fee, the surcharge required [in section 601 of the act (58 P. S. § 601.601),] under section 3271 of the act (relating to well plugging funds) and an affidavit affirming that the information on the original application is still accurate and complete, that the well location restrictions are still met and that the [surface owners, coal owners and operators, gas storage operators, where the permit renewal is for a proposed well location within an underground gas storage reservoir or the reservoir protective area, and water supply owners within 1,000 feet] entities required to be notified under section 3211(b)(2) of the act (relating to well permits) have been notified of this request for renewal. The request shall be received by the Department at least 15 calendar days prior to the expiration of the original permit.

§ 78.18. Disposal and enhanced recovery well permits.

*  *  *  *  *

 (c) A person who operates multiple well projects may submit one copy of the documents required under subsection (a) if the documents are applicable to the entire project.

(d) All containment practices and onsite processing associated with disposal and enhanced recovery wells shall comply with this chapter.

§ 78.19. Permit application fee schedule.

 (a) An applicant shall pay a permit application fee according to the following schedule:


Vertical Wells
Nonvertical Wells
[ Marcellus Shale] Unconventional Wells
Total Well Bore
Length in Feet
Total
Fee
Total Well Bore
Length in Feet
Total
Fee
Total Well Bore
Length in Feet
Total
Fee
0 to 2,000 $250 0 to 1,500  $900 0 to 1,500 $900
2,001 to 2,500 $300 1,501 to 2,000 $1,000 1,501 to 2,000 $1,000
2,501 to 3,000 $350 2,001 to 2,500 $1,100 2,001 to 2,500 $1,100
3,001 to 3,500 $400 2,501 to 3,000 $1,200 2,501 to 3,000 $1,200
3,501 to 4,000 $450 3,001 to 3,500 $1,300 3,001 to 3,500 $1,300
4,001 to 4,500 $500 3,501 to 4,000 $1,400 3,501 to 4,000 $1,400
4,501 to 5,000 $550 4,001 to 4,500 $1,500 4,001 to 4,500 $1,500
5,001 to 5,500 $650 4,501 to 5,000 $1,600 4,501 to 5,000 $1,600
5,501 to 6,000 $750 5,001 to 5,500 $1,700 5,001 to 5,500 $1,700
6,001 to 6,500 $850 5,501 to 6,000 $1,800 5,501 to 6,000 $1,800
6,501 to 7,000 $950 6,001 to 6,500 $1,900 6,001 to 6,500 $1,900
7,001 to 7,500 $1,050 6,501 to 7,000 $2,000 6,501 to 7,000 $2,000
7,501 to 8,000 $1,150 7,001 to 7,500 $2,100 7,001 to 7,500 $2,100
8,001 to 8,500 $1,250 7,501 to 8,000 $2,200 7,501 to 8,000 $2,200
8,501 to 9,000 $1,350 8,001 to 8,500 $2,300 8,001 to 8,500 $2,300
9,001 to 9,500 $1,450 8,501 to 9,000 $2,400 8,501 to 9,000 $2,400
9,501 to 10,000 $1,550 9,001 to 9,500 $2,500 9,001 to 9,500 $2,500
10,001 to 10,500 $1,650 9,501 to 10,000 $2,600 9,501 to 10,000 $2,600
10,501 to 11,000 $1,750 10,001 to 10,500 $2,700 10,001 to 10,500 $2,700
11,001 to 11,500 $1,850 10,501 to 11,000 $2,800 10,501 to 11,000 $2,800
11,501 to 12,000 $1,950 11,001 to 11,500 $2,900 11,001 to 11,500 $2,900
11,501 to 12,000 $3,000 11,501 to 12,000 $3,000

 (b) An applicant for a vertical well exceeding 12,000 feet in total well bore length shall pay a permit application fee of $1,950 + $100 for every 500 feet the well bore extends over 12,000 feet. Fees shall be rounded to the nearest 500-foot interval under this subsection.

 (c) An applicant for a nonvertical well or [Marcellus Shale] unconventional well exceeding 12,000 feet in total well bore length shall pay a permit application fee of $3,000 + $100 for every 500 feet the well bore extends over 12,000 feet. Fees shall be rounded to the nearest 500-foot interval under this subsection.

*  *  *  *  *

OBJECTIONS

§ 78.21. Opportunity for objections and conferences; surface landowners.

 (a) The surface landowner of the tract on which the proposed well is located may object to the well location based on the assertion that the well location violates section [205 of the act (58 P. S. § 601.205)] 3215 of the act (relating to well location restrictions) or on the basis that the information in the application is untrue in a material respect, and request a conference undersection [501 of the act (58 P. S. § 601.501)] 3251 of the act (relating to conferences).

*  *  *  *  *

§ 78.25. Conferences—general.

*  *  *  *  *

 (c) The Department will attempt to schedule the conference as late as possible in the 10-day period if the well is subject to the Coal and Gas Resource Coordination Act (58 P. S. §§ 501—518). The Department will not schedule a conference under section [202 of the act (58 P. S. § 601.202)] section 3212 of the act (relating to permit objections) if it receives written notice that the gas well operator or the coal mine owner or operator has made a written request to convene a panel to resolve objections to the location of a gas well over which a panel has jurisdiction in accordance with §§ 78.29—78.33.

*  *  *  *  *

§ 78.28. Final action if objections do not proceed to panel.

 If the panel does not have jurisdiction [of] over the objections, under § 78.30 (relating to jurisdiction of panel), or if the panel has jurisdiction but the parties choose not to proceed to a panel, the Department may proceed to issue or deny the permit, under sections [201 and 202 of the act (58 P. S. §§ 601.201 and 601.202)] 3211 and 3212 of the act (relating to well permits; and permit objections). No permit will be issued for a well at a location that in the opinion of the Department would endanger the safety of persons working in a coal mine.

§ 78.33. Effect of panel on time for permit issuance.

 The period of time during which the objections are being considered by a full panel [is not] will not be included in the 45-day period for the issuance or denial of a permit under section [201(e) of the act (58 P. S. § 601.201(e))] 3211(e) of the act (relating to well permits).

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