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Pennsylvania fracking regulations

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Pennsylvania fracking regulations

Pennsylvania fracking regulationsSince the implementation of oil and gas exemptions in the 2005 Energy Policy Act, large federal agencies such as the EPA have been forced to cede regulatory power over hydraulic fracturing to individual state governments.  While this power shift creates a lack of national standards, environmentalists and industry representatives alike have acknowledged the advantage of this decentralization as state governments are often better equipped to implement and enforce regulations for numerous and diverse local drilling operations.

Indeed, most states have stepped up to the challenge.  Notable among them is Pennsylvania, where comprehensive drilling regulations were first adopted in 1984 in the state’s Oil and Gas Act.  More extensive rules were later enacted through Chapters 78 and 79 of Pennsylvania Department of Environmental Protection (DEP) legislation1.  As a result, Pennsylvania fracking regulations are some of the most multi-layered and comprehensive in the country.  Furthermore, Pennsylvania state government control over drilling and fracking operations has been augmented by subsequent court decisions and adoption of state water protection laws.  To use a financial analogy, when it comes to net worth in regulatory power, the state of Pennsylvania has one of the most diversified portfolios in the nation.

However, in the past few years, Pennsylvania municipalities have been using local zoning laws to increase municipal power over fracking and oil and gas drilling.  This local challenge to Pennsylvania state power has created controversy over recent, pending legislation.  While new legislation could have profound effects on Pennsylvania fracking regulations, let’s first examine currently established rules.

Current Pennsylvania fracking regulations

Drilling permits

2012 Pennsylvania Drilling PermitsIn order to obtain a permit to drill anywhere in the state of Pennsylvania, oil and gas companies must submit a detailed report to the Pennsylvania DEP that includes all information required to carry out environmental risk analysis.  The well depth and location must be specified, as well as related geological information including the type and nature of surrounding rock formations, proximity to groundwater, and proximity to local water supplies.  All surface water supply owners within 1,000 feet of the drill site must also be notified by certified mail.  Finally, drillers must submit a deposit or bond to the state as security against violation of environmental regulations and restrictions1.

Drilling distances

To comply with state regulations, gas drilling must not occur within 200 feet of drinking water supplies, within 100 feet of any surface water, or within 100 feet from any wetland greater than one acre in size1.

Water testing and drinking water replacement

Drillers are required by the Pennsylvania Oil and Gas Act to replace or resolve any loss of drinking water due to contamination from drilling operations.  Drillers are held responsible for contamination if it occurs within 1,000 feet from the well in question and within 6 months after well completion.  Drilling companies can contest responsibility for contamination in one of five ways1:

  1. the pollution existed prior to the drilling
  2. the landowner or water purveyor refused to allow the operator access to conduct a pre-drilling water test
  3. the water supply is not within 1,000 feet of the gas well
  4. the pollution occurred more than six months after completion of gas well drilling
  5. the pollution occurred as the result of some cause other than gas well drilling

These regulations have resulted in a much higher incidence of water pre-testing than in other states.

Water quantity

In addition to being held responsible for contamination of drinking water supply, the state of Pennsylvania also holds drilling companies responsible for loss of water quantity due to other factors such as use in fracking fluid.  The Oil and Gas Act requires companies to restore or replace drinking water supplies significantly diminished by gas drilling activities1.

The DEP also keeps a tight watch on water use for hydraulic fracturing.  The Water Resources Planning Act requires withdrawals of over 10,000 gallons per day to be reported to the DEP and all withdrawals resultant of Marcellus Shale drilling must be registered with either the Susquehanna River Basin Commission or the Delaware River Basin Commission1.

Surface disturbance

 

fracking surface use

Surface of a drill site in proximity to Pennsylvania homes.

Surface land is often affected by the industrial operations needed to complete a well.  Often, roads, drilling pads, and pipelines are constructed and ongoing operations involve numerous trips to transport machinery, fluids, and supplies.  There is concern that erosion and sedimentation caused by these processes could affect groundwater supplies.  As such, Pennsylvania requires the submission of an erosion and sedimentation plan to the DEP before drilling can begin1.

Groundwater contamination

In response to reports of methane gas contamination of water wells in Pennsylvania, the state implemented extensive regulations controlling construction and standards for well casings in the spring of 20111.  Additionally, this legislation requires drillers to report the quantity and chemical content of produced water created by individual wells1.

Produced water disposal

In 2010, the DEP imposed specific limitations on the amount of total dissolved solids (TDS) permitted in produced water before it could be discharged into local bodies of water.  Before such disposal, produced water must be treated until no more than 2,000 mg/L of TDS are present1.  These strict regulations have encouraged an unprecedented level of well casing graphicresearch and investigation into produced water recycling in Pennsylvania.

Well closing

The state also requires drilling companies by law to plug wells after production ceases.  The portion of well casing protecting groundwater must be maintained and its integrity verified before the well is further filled with non-porous material1.

Future Pennsylvania fracking regulations

While thorough and diverse state regulations have obviously been successful in filling the void of federal power, they have recently been challenged by rising municipal action.  Over the past few years, as drilling in the Marcellus Shale has taken off, towns and cities throughout the state have enacted local bans and limitations based on individual zoning laws.  These local laws have overridden state standards and created a complicated “patchwork” of rules that drew complaints from confused industry prospectors.  In February of 2012, the state legislature passed Act 13, nicknamed the Impact Fee Law, in order to overhaul drilling regulations and restore state regulatory power2.

Act 13: the Impact Fee Law

The 2012 Act 13 implements several changes to existing regulations.  These include2:

  • expansion of the drilling contamination liability space from a 1,000 to 2,500 foot radius per well
  • increase of civil penalties for violations of regulations
  • required disclosure fracking chemicals to the DEP and publication of these disclosures on FracFocus.org
  • transfer of funds from the Oil and Gas Lease Fund to the Environmental Stewardship Fund and Hazardous Sites Cleanup Fund
  • new standards for setting drilling bond levels, based on length and number of wells in operation

Most importantly, Act 13 establishes a method of enforcement for new and existing state regulations meant to trump municipal laws.  Act 13 requires drilling companies to pay an “impact fee” for every well drilled in the Marcellus Shale formation.  The amount of the fee is set to vary with time and with fluctuating natural gas prices2.  In 2012, the fee was set at $50,000 per horizontal well and a smaller $10,000 for vertical wells2.  The fees are collected by the state and have generated around 180 million dollars of revenue in the past year2.

60% of this revenue would go to county and municipal governments—on one condition2.  The recipient must not pass or enforce any drilling or fracking laws in excess of the state’s.  Should local governments “violate” state regulations in this way, the state has the right to withhold impact fee money–in many cases depriving the municipality of millions of dollars.

The fate of Act 13

Although the adoption of Act 13 was met with gratitude by the oil and gas industry, the loss of power angered many local governments.  Directly after the passing of the Act, a collection of Pennsylvania municipalities sued the state government for the violation of established municipal power4.

In the past year, the dispute has passed through numerous appeals to finally reach the state Supreme Court in October of 20124.  However, the decision was delayed by the spring 2013 resignation of Justice Joan Orie Melvin4.  Her resignation left an even number of 6 justices on the Court, making a tied 3-3 decision a possibility.  Accordingly, Chief Justice Ronald Castille decided to delay the decision.

‘A 3-3 decision by our court is kind of meaningless,’ Castille said. Such outcomes ‘are bad for us, they are bad for everybody.’4

correale stevens Pennsyvania fracking regulations

Judge Correale Stevens recently joined the Pennsylvania Supreme Court, becoming instrumental to decisions on Pennsylvania fracking regulations.

While a decision has yet to be made, the latest in the resolution of the dispute is the temporary appointment of Superior Court President Judge Correale Stevens to the Supreme Court3.  While a new justice cannot be officially elected until 2015, Chief Justice Castille chose to temporarily fill the vacancy until the election.  Stevens was recently nominated and confirmed by a 2/3 vote of the state senate in late June of this year3.  In becoming the seventh vote out of an even six, Stevens could be instrumental in determining the future of Pennsylvania fracking regulations.

Delaware River Basin Commission Moratorium

While the state of Pennsylvania currently issues hydraulic fracturing permits according to established regulations, a de facto moratorium has been established in the northeastern part of the state due to legislative indecision within the Delaware River Basin Commission (DRBC).

The DRBC is a collaborative organization established in 1961 with the purpose of coordinating water management in the Delaware River Basin, which stretches 330 miles across parts of Pennsylvania, New York, New Jersey, and Delaware2.  The Commission is made up of governors from each of those states along with a delegate from the Army Corp of Engineers, who represents federal interests2.

In the spring of 2010, the DRBC voted to discontinue issuing of drilling permits until new regulations addressing hydraulic fracturing could be established2.  In a parallel to the legislative situation in New York, research and legislative drafts over the past 3 years have drawn heavy fire from both sides of the issue, resulting in a lack of finalized legislation.  While a new regulatory system remains under debate, drilling in the Delaware River Basin will remain on hold.

 

 

References:

1)      Abdalla, C., Drohan, J., Swistock, B., & Boser, S. (2011). Marcellus shale gas well drilling: Regulations to protect water supplies in pennsylvania.Pennsylvania State University,

2)      Delaware river basin commission: Battleground for gas drilling. (2013). National Public Radio,

3)       Detrow, S. (2012). What the new impact fee law, act 13, means for pennsylvania. National Public Radio,

4)       Heinz, A. The Unified Judicial System of Pennsylvania, (2013).Senate confirms judge stevens to supreme court

5)       Marcellus Drilling News. (2013, March 26). [Web log message].

 


Fracking news: weekly summary

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pennsylvania anti-fracking protest

-Colorado fracking regulations: municipalities battle it out with state government-

Aspen fracking protest

Anti-fracking rally challenges Colorado regulations.

Across the nation, and across the world, current fracking regulations are coming under fire from all directions.  In Colorado, municipalities are fighting for fracking regulatory power.

Although hydraulic fracturing is legally regulated and allowable according to state rules, several municipalities including Fort Collins, Longmont, and Boulder have attempted to enact complete, local fracking bans.  The latest on the local power front is the approval of a measure proposing a 5 year fracking moratorium within Boulder city limits.  In a meeting on Tuesday, the Boulder City Council unanimously approved the measure to appear on the upcoming November ballot.  Because gas drilling is not common in the Boulder area, the moratorium would be largely symbolic.  However, a ban would be another weight on the balance between state and local power.

Adding stress to the current situation was an anti-fracking protest staged in the city of Aspen last Saturday.  The protest involved over 100 participants and was directed at state governor John Hickenlooper and other legislators who had gathered in the city for the Democratic Governors Association meeting.  Protestors were angered by Hickenlooper’s approval of a lawsuit filed by drilling companies in order to override a local fracking ban established in the city of Longmont last year.

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Pennsylvania fraktivists call for “independence from fracking”

pennsylvania anti-fracking protestLate last week, anti-fracking activists , or fraktivists, gathered in Brockway, Pennsylvania outside several state senators’ offices.  The protest was targeted at Senator Joe Scarnati, along with other legislators who continue to oppose the implementation of a statewide ban on hydraulic fracturing.

The rally was organized by the Pennsylvania Alliance for Clean Water and Air and attended by numerous environmental groups as well as by private citizens.  Participating environmental groups included PennEnvironment, the Mountain Watershed Association, and Protecting Our Waters.  Participants hoped to capitalize on an opportunity presented by legislation proposed by state Senator Jim Ferlo.  The legislation, introduced in late April, was a response to the submission of an anti-fracking petition submitted by environmental groups and proposes to a halt to hydraulic fracturing permitting in the state.  The proposal has already garnered the approval of several Democratic legislators, and last week’s protest was meant to increase momentum for support.

‘Pennsylvania’s approach to fracking is ‘permit first’ and ‘figure the rest out later’,’ said Melissa Troutman, Mountain Watershed Association outreach coordinator. ‘From water withdrawals to waste disposal, fracking in Pennsylvania is nothing more than an experiment. That is neither good policy nor planning for the Commonwealth’s future.’

Interestingly, Pennsylvania’s regulations on fracking are actually comprehensive and multi-layered.  In fact, they are some of the most well developed in the nation.  While many concerns may be based on misinformation, the anti-fracking movement and its effect on legislation still bears watching.  Across the nation, anti-fracking fronts have seen unprecedented success—not the least of which is the prolonged moratorium dragging on in neighboring New York.

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As Delaware River Basin moratorium continues, drilling companies begin to vacate

drilling rig in fairfield township, pennsylvaniaWhile to Pennsylvania fraktivists, the grass may seem greener, residents of the Delaware River Basin are feeling the economic drawbacks of an extended fracking moratorium.  To learn more about the effective moratorium established by the Delaware River Basin Commission (DRBC), see Frackwire’s article on Pennsylvania fracking regulations.

As the DRBC enters its third year without issuing drilling permits, companies are beginning to cut their losses and pull out of lease agreements with landowners.  Recently, landowners with oil and gas leases received letters from Hess Corporation and Newfield Exploration Corporation, notifying them that those leases were no longer in effect.  According to Newfield Exploration, profitable gas drilling in the area does not appear to be an imminent future prospect.

‘Ours was a business decision,’ said Newfield spokesman Keith Schmidt.

The decisions by Hess and Newfield terminate a mass lease between the North Wayne Property Owners Alliance and the two drilling companies, negotiated several years previously.  The lease was valued at $3,000 per acre—some to be paid upfront and the rest to be delivered after profitable production began.

Due to the block on production resultant of DRBC legislative hold ups, outraged citizens are blaming the Commission for the loss of an estimated $187 million. While no official action has been taken to date, landowners report consideration of a lawsuit against the DRBC, similar to the JLCNY suit currently being undertaken in New York.

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Interior Chief defends proposed federal fracking regulations

Sally Jewell defends federal fracking regulations

Interior Chief Sally Jewell defends federal fracking regulations.

Due to historical oil and gas exemptions from federal laws, drilling and fracking regulation has become heavily concentrated at the state level.  In a contrasting move, the US Department of the Interior recently released proposed new legislation that would govern fracking on federal lands at the federal level.  The proposal would allow state regulations deemed “stricter” than federal ones to take precedence, but would establish a standard for drilling on national land that would apply in less regulated states.

However, the proposal must go through a public vetting process—including open commentary periods—before it can be approved.  And since its release, the proposal has drawn outspoken criticism from environmental groups and the anti-fracking movement, calling for stricter chemical disclosure requirements.  Judging from precedents set by the legislative delays in New York and the Delaware River Basin, this criticism could prove extremely powerful.

In attempt to quell environmental fears, Sally Jewell, recently appointed Interior Chief and former oil and gas career woman, explained that the proposal was an attempt to keep pace with drilling technology in order to adequately supervise an industry critical to the nation’s economic future.

‘I know there are those who say fracking is dangerous and should be curtailed, full stop,’ said Jewell,  ‘That ignores the reality that it has been done for decades and has the potential for developing significant domestic resources and strengthening our economy and will be done for decades to come.’

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Fracking art installation raises debate in the UK

fracking art installation

Dramatic art installation by French duo hopes to stir emotional response to fracking.

While hydraulic fracturing and the ensuing debate have become established fixtures of the US energy landscape, both are still emerging issues in the UK.  As recent studies report significant shale gas reserves on British land, investment in drilling—particularly in the Blackpool area—is on the rise.

Accordingly, hydraulic fracturing regulation is sure to be a future hot topic.  Stepping into this environment is Paris based art duo Heiko Hansen and Helen Evans.  This week, the two debuted an art installation intended to simulate the experience of visiting a fracking rig at Liverpool’s FACT gallery.  The installation is a miniature fracking rig, capable of producing sounds, flames, and motion.

The noise hits you hard, a pounding rhythmic bass sending vibrations right through you. Suddenly the red rig lights up and the drill rotates down through the rubble-strewn floor. The noise crescendoes, like a jet taking off, and metallic hammering accompanies the sinister smoke rising out of the drill hole. And then, as quickly as it started, it all stops. Forlorn bird cries ring out across a pool of effluent, and random methane flares hit you with a dry wall of heat.

While the display is certainly dramatized, the accuracy of the installation may be beside the point.

‘We want to create an emotionally engaging experience,’ said Hansen.

And his instinct may be right on point.  In the US, the anti-fracking movement has certainly seen success with effective use of emotional and visual appeals.  As fracking in the UK unfolds, similar appeals may be capable of playing a similar role.

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Fracking news: weekly summary

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fracking news

As the fracking debate just begins to take off in the UK this week, federal and local powers in the US continue to battle it out over the fine points.  In the past few months, President Obama has made it clear that he views fracking for natural gas as a vital tool to help lead the nation out of economic recession.  However, a lot of local governments are less enthusiastic.  In the past week, both state and municipal groups have made headlines challenging the president’s pro-fracking stance.

Protestors in New York to Target Obama Tour

Obama speechAs President Obama makes plans a tour of upstate New York this week, anti-fracking protestors plan to travel with him.  The President will visit Buffalo, Syracuse, and Binghamton this week, planning to speak about the importance of affordable college education.  While fracking may seem unrelated, activists maintain that the topic is never off subject in their state.

‘We’re going to be present in Binghamton by the hundreds if not the thousands,’ says Walter Hang, with the Ithaca-based Toxics Targeting.

While New York fractivists have managed to impose a five year de facto moratorium in the state, they did it by simply delaying legislative processes.  As a result, New York still has no fracking regulations on the books.  When legislation does happen, it could go either way—initiating fracking permits or enacting an official ban.  This uncertainty has caused nervousness among New York activists who say they plan to target Governor Cuomo as well as the president.

Should Cuomo decide to travel with the president this week, New York protestors plan to direct their message to him.  Hang said Toxics Targeting hopes to show Governor Cuomo what his 2014 reelection campaign could be like if he continues with his neutral stance towards fracking—“protestors at every stop”.

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Obama Visit Raises Conflict between Pennsylvania Democrats

fracking mapIn addition to his New York visits, the president also intends to speak in Scranton on Friday.  While Obama again intends to address the issue of higher education, his administration’s pro-natural gas agenda is giving new significance to ongoing conflict within the Pennsylvania Democratic Party.

At a state committee meeting back in June, party members first raised the issue when they proposed a resolution to push for a full fracking moratorium to replace current Pennsylvania regulations.  In a vote of approval for the resolution, the party was split 115-81 and the debate has escalated from there.  Of the seven prospective Democratic gubernatorial candidates, two have spoken out against the moratorium while one is in favor of its application to public lands.

Last month, 19 democratic state representatives collaborated to submit a letter to Democratic Committee Chairman Jim Burns, criticizing the resolution as “shortsighted”. The first letter was followed by a similar one, signed by eight state senators.

‘It says to the industry that Democrats as a whole are opposed to everything that’s going on and that’s not true,’ said Tim Solobay, a Washington County state senator.

The issue will be discussed at the next committee meeting on September 27.  In the meantime, party members are concerned about the message the resolution sends in the context of the president’s visit.

‘The party was overstepping its’ place because it puts us at odds with some of our own elected officials,’ said York County Chairman Bob Kefauver. ‘In my mind that’s not why a party organization exists.’

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Comment Period Closing on BLM Fracking Bill

fracking on BLM landThe public comment period on a Bureau of Land Management fracking proposal is set to end on Friday of this week.  The proposal sets new plans and regulations for BLM land and would allow fracking on 600 million new acres of federal land.

While the bill represents the first major foray into fracking regulation by a federal agency, many environmentalists are still unhappy.  Representatives from the National Resources Defense Council have criticized the proposed plan as giving “industry a free pass”.  This Thursday, a coalition of environmental groups plan to deliver an anti-fracking petition to BLM headquarters in a rally in Washington, DC.

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Colorado Groups Seek to Put Fracking Ban on the Ballot

Aspen fracking protest

Anti-fracking rally challenges Colorado regulations.

In Colorado, municipalities and environmental groups continue to clash with state authorities.  Several Colorado cities, including Boulder, Fort Collins, and Longmont have attempted fracking bans in the past.  However, they have either been mainly symbolic or have been shot down as the state government has threatened to sue municipalities for encroaching on state authority.

As a result, environmental groups are pushing for the addition of a statewide moratorium to the ballot in 2014 elections.

‘It’s clear citizens don’t have any other recourse’, said Sam Schabaker, an organizer with Protect Our Colorado.

However, some local representatives do believe that a complete moratorium is a step too far.

‘Colorado has always been a strong local control state,’ said Garfield County Commissioner Tresi Houpt. ‘I think the solution is to figure out where it is appropriate to drill.’

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California Coastal Commission Investigates Offshore Fracking

offshore fracking rigAs fracking moves farther west, California is developing its regulatory framework to cope with the growing industry. Last Thursday, the Coastal Commission initiated an investigation into the practice during a meeting in Santa Cruz.

The decision was prompted by industry reports of offshore rigs using hydraulic fracturing to stimulate production.  The topic of offshore fracking also drew unusual interest in the Coastal Committee proceedings, drawing 20 local audience members who expressed concern about fracking in California waters.  In light of notorious offshore accidents, such as the BP Deepwater Horizon Oil Spill in 2012, the Commission and citizens alike are anxious about protecting the aquatic environment.

‘We take our obligation to protect the marine environment very seriously and we will be looking at this very carefully,’ said Charles Lester, executive director of the Coastal Commission.

Although the agency has oversight capabilities for offshore drilling, to date they have never held up a project.  Nevertheless, this precedent could be subject to change as the investigation continues.

‘We do not yet understand the extent of fracking in federal or state waters, nor fully understand its risks,’ said Coastal Commission Deputy Director Allison Dettmer, who will lead the effort.

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