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Steptoe & Johnson PLLC: Pa. DEP’s Latest Revisions to Chapter 78a for Unconventional Wells – the Good, the Bad and the Ugly

The Pennsylvania Department of Environmental Protection’s long, drawn out effort to promulgate new rules for oil and gas activities took another turn on August 12, 2015. On a DEP webinar on that day, the DEP announced several significant changes to its latest edition of proposed rules for regulating the environmental issues associated with unconventional well operations. The most significant and perhaps positive issues for the industry were the elimination of both the proposed noise mitigation standards (Sec. 78a.41) and the centralized tank storage requirements (Sec. 78a.57a). DEP’s rationale for the action on the noise standards was that serious technical challenges remained that precluded addressing noise in the rulemaking. However, in a following statement they announced that noise will be subject to a new set of best management practices established by DEP that will be used to establish the standards for future inclusion in Chapter 78a. Hopefully these best practice standards will be based on objective goals and reasonable numbers, unlike the subjective standards contained in the now deleted proposed rules. In the deleted rule if the DEP determined, without the use of a numerical standard, that the operation was too noisy they could shut it down.

The elimination of the very prescriptive centralized tank storage requirements came as a relief since centralized tanks were essentially the only future option available to operators under Chapter 78a. The proposed rules place a very limited life on the use of centralized impoundments, leaving tanks as the only viable option for operators. However the proposed rules conditioned the use of centralized tanks on meeting eight pages of detailed and rigid requirements. These detailed requirements removed any assurances that getting approval for these tank facilities would be quick and easy. Unfortunately, DEP’s announcement of its deletion from Chapter 78a was followed by the statement that these facilities will be subjected to the standards of the DEP’s Waste Management program. Past experiences with Waste Management have many thinking that getting centralized tank storage approvals may have gone from the frying pan into the fire.

DEP also made changes to the definitions and requirements associated with identifying and protecting public resources. The definition for “Other Critical Communities” was simplified to include only species of special concern identified as part of the state required Pennsylvania Natural Diversity Inventory (PNDI) receipt. This change appears to eliminate difficult to identify and quantify non-species resources and unique geological features. However, the expansion of what constitutes a “Public Resource Agency” and a “Playground” clearly opens the door for more involvement by entities beyond those usually involved in this process such as counties, municipalities, playground owners and school districts. Perhaps the biggest concern comes with the inclusion of “other critical communities” under the public resource category. These can be proposed, rare, candidate or tentatively undetermined plants or animals and it will be the responsibility of the operator to notify all public resource agencies responsible for managing these species of their existence. This expanded list of responsible agencies will now have ample opportunity to evaluate the protection or mitigation measures proposed by the operator and to submit written comments to the DEP. The legitimate concern here is that these steps will further complicate an already complex permitting process.

DEP is still on track to submit these rules to the Environmental Quality Board later this year and to have them finalized and promulgated by the second quarter of 2016.

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