DEP proposes new rules for shale industry

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A state proposal to make far-reaching amendments to oil and gas regulations governing Marcellus Shale gas development indicates stronger rules are needed to protect Pennsylvania's surface and groundwater resources.

But it's too early to tell if the more than 100 proposed changes in a 23-page draft "concept paper" from the state Department of Environmental Protection will eventually provide those protections, environmental groups say.

The document is the first step in a regulatory rewrite, required by last year's Act 13 amendments to the state's 1984 Oil and Gas Act, and was circulated to the DEP's Oil and Gas Technical Advisory Board earlier this month. The five-member board, appointed by the governor, has scheduled public meetings Sept. 17 and Oct. 15 in Harrisburg to review as-yet-to-be-completed regulatory language based on the proposals.

"There's a lot of work to do, and we're just starting to review it," said Burt Waite, a member of the technical advisory board since 1996. "The changes are to address Marcellus Shale drilling operations and the shortcomings of the present regulations. Things are being tightened up, and that's appropriate."

Mr. Waite said the proposed regulatory changes are "comprehensive and potentially the biggest" since the enactment of the state Oil and Gas Act in 1984.

"The underlying goal is to protect groundwater and surface water," he said, "and that is absolutely appropriate."

Among the more notable proposals in the concept paper is the elimination of the drilling industry's use of in-ground pits for storage of "produced fluids," which are briny liquids that flow back to the surface after a well has been hydraulically fractured, and a requirement to locate and map abandoned gas and oil wells near new well sites that could allow methane to migrate into shallow aquifers.

Other proposals would require drillers to build secondary containment structures around all new permanent storage tanks to protect nearby waterways and regulate on-site wastewater treatment processes and pipelines for the first time.

According to the DEP's concept paper, storing produced fluids in a pit "presents an unacceptable risk to the environment through leaks or overtopping of the pit."

The document also notes: "There are tens of thousands of tanks containing produced fluids that have no adequate secondary containment, which has resulted in numerous spills and releases of produced fluids into the environment over many decades."

John Walliser, vice president for legal and governmental affairs for the Pennsylvania Environmental Council, a statewide environmental organization, said he is "encouraged" by the proposals, which fill in gaps in Act 13.

"We wanted to see some of those things in Act 13, but they were left out, so it's nice to see the department jump on it," said Mr. Walliser, who is also chairman of the DEP's Citizens Advisory Council. "But the devil is in the details."

For example, while a proposal would eliminate use of storage pits for produced fluids, it doesn't say whether produced fluids are just salty brine flushed from the deep shale formation or also the so-called "flowback fluid" containing fracking chemicals.

"If produced fluids are only brines and they pose an unacceptable risk, wouldn't it stand to reason that flowback fluid does as well?" said Mark Szybist, staff attorney with Citizens for Pennsylvania's Future, a statewide environmental organization. "The concept paper is vague in a number of areas and raises red flags."

Those include proposals to require drillers to build secondary containment structures to American Petroleum Institute standards around all new permanent storage tanks to protect nearby waterways, establish a spill reporting minimum, and first time regulation of on-site wastewater impoundments, treatment processes and pipelines.

Mr. Szybist said new standards are needed for temporary pipeline use and for regulating centralized residual waste impoundments used by the drilling industry, but the DEP's proposal comes up short on both.

"I don't see the justification for lesser controls than another industry would have on waste impoundments," he said. "The conceptual premise on many of these things is good, but it's hard to know if the final regulations will be good enough."

The DEP in a statement said the proposals are just memorializing existing regulations or industry practices. The DEP's plans call for finalizing the proposed language of the regulatory changes at the technical advisory board meeting Nov. 15 and submitting the final regulatory language for consideration by the state Environmental Quality Board on Dec. 12.

Mr. Szybist said that schedule may be too optimistic because it doesn't allow for adequate public comment.

"Given the breadth of the changes, the DEP has to allow at least 60 days and maybe longer for public review and comment," he said. "There's going to be a lot to go through, and it's something that shouldn't be rushed."

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Don Hopey: dhopey@post-gazette.com or 412-263-1983.


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