[ 25 PA. CODE CHS. 78 AND 78a ]

Environmental Protection Performance Standards at Oil and Gas Well Sites; Advance Notice of Final Rulemaking

[45 Pa.B. 1615]
[Saturday, April 4, 2015]

 The Department of Environmental Protection (Department) is soliciting comments on changes it is recommending to the Environmental Protection Performance Standards at Oil and Gas Well Sites proposed rulemaking published at 43 Pa.B. 7377 (December 14, 2013).

 The primary goal of this rulemaking is to ensure that oil and gas operators employ effective measures that prevent pollution, while allowing flexibility for the optimal development of this natural resource. These rules focus on performance over process and a commitment to responsible environmental protection for oil and gas extraction activities in this Commonwealth. The amendments are designed to strengthen the environmental controls employed by this industry to ensure the protection of public health and safety and the environment.

 Historically, this Commonwealth has been a large conventional oil and natural gas producer. However, advances over the last decade in drilling and completion technologies have attracted interest in producing gas from unconventional shale formations (for example, the Marcellus and Utica shales).

 Compared to conventional oil and gas development, unconventional well development involves larger well sites and centralized storage facilities, mobile wastewater processing, large volumes of water for hydraulic fracturing activities and new pipeline systems. These recommended changes to the Department's proposed rulemaking should keep the Commonwealth at the forefront of this industry's advances in technology on both the conventional and unconventional sides of the industry. This industry is a major economic generator within this Commonwealth and these regulations will ensure that the oil and gas operators who choose to develop the resources in this Commonwealth are held to the highest environmental standards.

 Finally, the act of February 14, 2012 (P. L. 87, No. 13) significantly revised the Commonwealth's oil and gas laws and directed the Department to promulgate regulations to implement its environmental enhancements.

A. Summary of the Advance Notice of Final Rulemaking Changes

 The proposed rulemaking was the subject of a 90-day public comment period and 9 public hearings, with just over 24,500 comments received during that process. Since that time, the Department has been considering each comment. The draft final language represents the Department's revisions based on the review of those comments.

 During the pendency of this rulemaking process, the General Assembly also passed two acts directly relating to the subject matter of the proposed rulemaking. As a result of the passage of the act of July 10, 2014 (P. L. 1053, No. 126), all regulations promulgated under 58 Pa.C.S. (relating to oil and gas) were required to differentiate between conventional oil and gas wells and unconventional gas wells. The Department determined that the current rulemaking process would continue, but that the regulations would be completely bifurcated (separated into two distinct chapters) on final-form rulemaking. The act of October 22, 2014 (P. L. 2853, No. 173) requires monthly reporting of production by unconventional well operators to the Department.

 The draft final rulemaking contains significant changes in several areas. These changes include the following:

§§ 78.1 and 78a.1. Definitions

 Several definitions are added to this section. Of particular note, a new definition for ''other critical communities'' has been added to address concerns related to consideration of public resources in permitting.

§§ 78.15 and 78a.15. Application requirements

 Subsection (b)(1) requires a demonstration of protection of wetlands and streams where the edge of the pad is within 100 feet of streams and wetlands.

 Under subsection (f), the Department will consider impacts to public resources as part of the permitting process. Additional areas to consider include public drinking water wellhead protection areas, playgrounds and schools considered public resources for which the Department may impose permit conditions. The draft final rulemaking extends the review time frame for jurisdiction agencies (such as the Fish and Boat Commission, the Department of Conservation and Natural Resources, the Game Commission and the Pennsylvania Historic and Museum Commission) from 15 days to 30 days.

§§ 78.17 and 78a.17. Permit expiration and renewal

 The draft final rulemaking extends the well permit renewal term to 2 years from the current 1 year and clarifies that permits expire unless drilling is completed within 16 months of permit issuance.

§ 78a.41. Noise mitigation

 This new section of the draft final rulemaking establishes health-based standards for noise control and mitigation from unconventional operations.

§§ 78.51 and 78a.51. Protection of water supplies

 The draft final rulemaking explicitly requires operators to restore drinking water supplies impacted by drilling to the better of either Safe Drinking Water Act standards or predrill quality.

§§ 78.52a and 78a.52a. Area of review

 These sections extend the prehydraulic fracturing assessment (including refracking) to include active and inactive wells in addition to the proposed abandoned and orphaned wells. Operators must submit all well locational data and a monitoring plan as part of the report.

§§ 78.56 and 78a.56. Temporary storage

 Section 78a.56 eliminates the use of pits to temporarily store waste at unconventional well sites.

 Both sections of the draft final rulemaking eliminate the requirement to remove underground storage tanks. New buried tanks must meet design and inspection criteria.

 Section 78.56 removes the requirement for conventional operators to install locks on their tanks.

§§ 78.57 and 78a.57. Control, storage and disposal of production fluids

 These sections eliminate the use of pits to store production fluids at wells sites and require existing pits to be properly closed.

 Both sections of the draft final rulemaking eliminate the requirement to remove underground storage tanks. New buried tanks must meet design and inspection criteria.

 Section 78.57 removes the requirement for conventional operators to install locks on their tanks. Both sections add a requirement for a basic monthly maintenance inspection.

§§ 78.57a and 78a.57a. Centralized tank storage

 These new sections in the draft final rulemaking add a centralized tank storage option for unconventional operators, primarily based on residual waste tank storage requirements.

§§ 78.59c and 78a.59c. Centralized impoundments

 These sections require operators using centralized wastewater storage impoundments to obtain a residual waste impoundment permit.

 For existing centralized wastewater storage impoundments, these sections require a closure plan to be submitted to the Department within 6 months of the effective date of the final-form rulemaking. Any existing centralized wastewater storage impoundments must be properly closed within 3 years of the effective date of the final-form rulemaking or the operator must obtain a residual waste impoundment permit under the residual waste regulations.

§§ 78.61—78.63 and 78a.61—78a.63. Disposal of drill cuttings and residual waste onsite (pits and land application)

 The draft final rulemaking adds a requirement for operators to give landowners notice of disposal within 10 days (conventional only).

 Sections 78a.61—78a.63 require Department approval to dispose of waste and cuttings from below the casing seat and waste at unconventional well sites.

§§ 78.66 and 78a.66. Reporting and remediating spills and releases

 The draft final rulemaking requires landowner notification and sampling of water supplies with the potential to be impacted by a spill or release. In addition, the draft final rulemaking removes the alternative cleanup process; all remediation will be required to be conducted pursuant to the Land Recycling and Environmental Remediation Standards Act (35 P. S. §§ 6026.101—6026.908).

§ 78.68. Oil and gas gathering lines

 The draft final rulemaking removes the requirements for regulation of gathering lines of conventional operators.

§ 78a.121. Production reporting

 This section amends requirements to address new legislation requiring monthly resource production reporting. In addition, this section also requires unconventional operators to report the amount and type of waste produced and the method of disposal or reuse on a monthly basis.

B. Contact Persons

 For further information or to request a copy of the draft final rulemaking, 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. The draft final rulemaking is available electronically through the Department's web site at (Select ''Oil and Gas Rulemaking'' button).

C. Public Comments

 While there is no legal requirement to provide an opportunity to comment upon the Department's recommendations for final rulemaking, the Department believes comments on the draft final rulemaking would serve the public interest in this instance. The Department requests that commentators focus their comments on language that is changed from the proposed rulemaking and that comments be submitted separately for each chapter to aid in comment review and response. The Department particularly seeks comments on the issues of the definition of ''other critical communities'' (§§ 78.1 and 78a.1), noise mitigation (§ 78a.41) and centralized tank storage (§§ 78.57a and 78a.57a).

 Written or electronic comments will be accepted. Electronic comments may be submitted through the Department's Online Regulatory Comment System at or by e-mail to

 Written comments should be sent to the Department of Environmental Protection, Policy Office, 400 Market Street, P. O. Box 2063, Harrisburg, PA 17105-2063. Comments must be received by May 4, 2015. A subject heading of the rulemaking and a return name and address must be included in each letter or transmission. Comments will not be accepted by facsimile or voice mail.

Acting Secretary

[Pa.B. Doc. No. 15-597. Filed for public inspection April 3, 2015, 9:00 a.m.]

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