This rulemaking was issued in “final-omitted” form.  That action is taken in special cases when it is deemed necessary to respond to an emergency, and allows the Commonwealth to issue rules without publishing a proposed rule or offering them for public comment.  Because Governor Corbett’s Marcellus Shale Advisory Commission had recommended that actions be taken to enhance emergency response at unconventional well sites and that the lack of effective emergency response has a direct and immediate impact on human health, safety, and welfare, the final-omitted rulemaking form was used to add sections to 25 Pa Code, Chapter 78 relating to oil and gas wells.  The regulation was published in the January 26, 2013, Pennsylvania Bulletin   and became effective on the same date, with the exceptions noted below.

Site Address

Site address registration requirements of 25 Pa Code 78.55(f)(3) became effective on February 25, 2013.  Since then and prior to construction of an access road to a well site, operators have been required to obtain a municipal street address for the site and determine GPS coordinates for both the well and site entrance.  The site name, address, and GPS coordinates are to be registered with PEMA, the PADEP, the county emergency management organization, and the 9-1-1 Public Safety Answering Point (PSAP).

Emergency Response Plans

Emergency response plan requirements contained in 25 Pa Code 78.55(f)(5) took effect on April 26, 2013.  Operators are required to have implemented “an emergency response plan that provides for equipment, procedures, training, and documentation to properly respond to emergencies that threaten human health and safety for each well site.”  These plans are to “incorporate National Incident Management System planning standards, including the use of the Incident Command System, Incident Action Planning, and Common Communication Plans.”  Six categories of emergency are to be addressed:

1. Fire;
2. Medical;
3. Explosion or similar event;
4. Spill;
5. Security breach or other security event; and
6. Any other incident that necessitates the presence of emergency responders.

Other key elements to be included in these plans include:

1. Emergency contact information and notification procedures;
2. Procedures to provide current hazardous material (e.g., MSDS) information to emergency responders;
3. A list of fire suppression and spill control equipment;
4. A description of off-site emergency equipment;
5. A summary of risks to the public located within ½-mile of the site; and
6. An outline of the emergency response training plan.

Provisions have been included for the preparation of a common base plan and then site-specific plans unique to each location.  Plans are required to address each of the following stages of operation:

1. Preparation of the access road and well site;
2. Drilling the well;
3. Hydraulic fracturing and stimulation of the well;
4. Production;
5. Site restoration; and
6. Plugging of the well.

In addition to being maintained at the site during all phases of operation, these plans are to be distributed to PEMA, the PADEP, the county emergency management agency, and the PSAP.  The plan must be reviewed annually on or before March 1.  If updates are required, they must be submitted to the same recipients.  Otherwise a statement indicating that a review occurred but no updates were needed must be submitted.

Signage

The final element of these new requirements addresses signage.  Signage requirements specified at 25 Pa Code 78.55(f)(4) take effect on July 25, 2013.  Prior to constructing an access road, operators will be required to display a sign that meets specific fabrication, design, size, content, and installation requirements.  “Sample Site Entrance Signage” is provided within the PA Bulletin link noted above.

PADEP acknowledges that industry will incur costs associated with preparing emergency response plans and posting signs but expects that “responsible operators already do both.”  As such, the incremental costs are expected to be insignificant.  To assist with the implementation of these requirements, PADEP intends to implement a compliance assistance plan with regional training sessions presented by PADEP and PEMA.

If you are unclear about how this regulation affects your operations or have questions regarding these requirements, please contact Kris Macoskey at 800-365-2324 or via email at kmacoskey@cecinc.com.

USEPA has updated the 1994 version of Waste Analysis Plan Guidance. This guidance is helpful in understanding regulatory requirements and USEPA intent regard the obligation each solid waste generator has to document a hazardous waste determination.

One tool provided in the new guidance document is a checklist for evaluating waste determinations using acceptable knowledge (i.e. without having waste analysis).  Another consists of tips for using the Safety Data Sheet to support a waste determination.  Appendix F also provides a number of key considerations, including several that are important for generators.

Another issue that arises is whether the generator needs to document the waste determination.  Regulation and USEPA guidance make it plain that these must be documented, and reviewed annually or more often, with records kept for 3 years.  A CESQG especially needs to do this documentation because they rely on proper determinations to assure they stay below the 100 kilogram/month threshold and avoid additional regulatory burdens as a Small Quantity Generator.

For each solid waste stream, regulations require that the generator must determine if the waste is:

1. Excluded from regulation under 40 CFR 261.4 as not a solid waste.
2. Listed as a hazardous waste in Subpart D of 40 CFR part 261.
3. Identified in Subpart C of 40 CFR part 261 with a hazard characteristic by:
   1. Testing the waste using standard or approved methods, or
   2. Applying knowledge of the hazard characteristic of the waste in light of the materials or the processes used.
4. Excluded or restricted under parts 261, 264, 265, 266, 267, 268, and 273.

The Point of Generation is where the waste determination should be made, rather than after waste is moved to storage, exposed to the elements, or mixed with other materials.  Hazardous waste is not regulated until it exits the unit in which it was generated or remains within a shutdown unit for more than 90 days.

Basis for Determination – The generator should document waste determinations for each waste stream coming from each discrete equipment item and, if necessary, for each operating scenario such as normal, shutdown and cleanout.  Records must be kept of unit shutdowns to assure residuals are not stored for longer than 90 days.  For waste streams determined to be not hazardous, the regulatory citation and basis (such as acceptable knowledge or testing) should be documented, recorded and updated as needed. A good engineering practice would be to review and update waste determinations annually or more often if changes occur.

Acceptable Knowledge – The Waste Analysis Guidance document suggests that acceptable knowledge will be: as current as practicable, based on material balances; reviewed annually or when changes occur; and documented with appropriate records retained.

Safety Data Sheet (SDS) – The Waste Analysis Guidance document warns generators to confirm they are using the correct SDS and it is current. The SDS may mention the material is a RCRA waste if discarded or provide CAS numbers that can be compared to the listed wastes.  Properties may reveal the material would be characteristically hazardous (e.g. flash point, pH, reactive, toxic). The SDS should not be used if the waste is mixed, treated or chemically altered or as a substitute for laboratory analyses where appropriate.  SDS may not report all components and may not list hazardous components present in concentrations below 1 percent by weight.  The generator retains the burden to make a correct waste determination and the liability from improper disposal.

Codes for generator reporting need to be assigned for each hazardous waste stream. These codes describe the type of process or activity (Source), physical/chemical characteristics (Form) and type of hazardous waste management system (Management).

Key Considerations for Generators include:

• Check State and local requirements which may be more stringent
• Compile records of collective knowledge of wastes
• Assure representative samples are analyzed using standard methods
• Document acceptable knowledge in lieu of analysis
• Support claims that secondary materials are not solid waste
• Do not rely on single analysis for subsequent waste streams
• Make new waste determination for each new point of generation
• Process changes require a new waste determination
• Periodically review and update waste determinations

 A copy of the new Waste Analysis Guidance can be downloaded from EPA’s website. Additional  information on related USEPA Guidance is available here. If you have any questions about RCRA Waste Determination requirements, please contact William K. Graham, P.E. at bgraham@cecinc.com or 630-541-0626.

 Facilities covered by EPCRA requirements must submit an Emergency and Hazardous Chemical Inventory Form to the Local Emergency Planning Committee (LEPC), the State Emergency Response Commission (SERC), and the local fire department annually. Facilities provide either a Tier I or Tier II Form although most States require the Tier II Form.  Some states and counties have requirements in addition to the federal Tier II requirements. 

 The EPCRA Tier II Form submittal is due on March 1, 2013.  The Tier II Form is required for chemicals that are stored at your facility above specific weight thresholds that are not exempted under the EPCRA regulations.  The weight threshold varies for extremely hazardous substances (EHS) and is set at 10,000 pounds for other chemicals stored at your facility.

 Tier II Forms must report the required information for each hazardous chemical present at your facility in quantities equal to or greater than established threshold amounts (discussed below), unless the chemicals are excluded.  Hazardous chemicals are any substance for which your facility must maintain a Material Safety Data Sheet (MSDS) under OSHA’s Hazard Communication Standard (described at 29 CFR 1910.1200).

 Section 311(e) of EPCRA excludes a number of substances.  The OSHA regulations at Section 1910.1200(b) also stipulates various exemptions from the requirement for maintaining an MSDS for certain chemicals or materials. Minimum thresholds have been established for Tier II reporting under EPCRA Section 312.  These thresholds are as follows:

•  For Extremely Hazardous Substances (EHSs) – the reporting threshold is 500 pounds or the Threshold Planning Quantity (TPQ), whichever is lower.  The current list of EHS chemicals and their TPQs is maintained at 40 CFR Part 355.
• For gasoline (all grades combined) at a retail gas station, the threshold level is 75,000 gallons, if the tank(s) was stored entirely underground and was in compliance at all times during the preceding calendar year with all applicable Underground Storage Tank (UST) requirements.
• For diesel fuel (all grades combined) at a retail gas station, the threshold level is 100,000 gallons, if the tank(s) was stored entirely underground and the tank(s) was in compliance at all times during the preceding calendar year with all applicable UST requirements.
• For all other hazardous chemicals for which facilities are required to have or prepare an MSDS, the minimum reporting threshold is 10,000 pounds.

 Your facility needs to report hazardous chemicals that were present at your facility at any time during the previous calendar year at levels that equal or exceed these thresholds.  The report covers the 2012 calendar year, beginning January 1 and ending December 31. For each chemical that your facility has listed, identify all the physical and health hazard boxes that apply.  These hazard categories are defined in 40 CFR 370.2.  The two health hazard categories and three physical hazard categories are a consolidation of the hazard categories defined in the OSHA Hazard Communication Standard, 29 CFR 1910.1200.

 For each chemical that is reported, the Tier II form asks for specific information such as the maximum amount stored onsite, average daily amount stored onsite, number of days present onsite, and storage codes and storage location information (for non-confidential chemicals).  You may elect to withhold location information on a specific chemical from disclosure to the public.  The Tier II instructions provide details for submittal of confidential information. The owner or operator or the officially designated representative of the owner or operator must certify that all information included in the Tier II submission is true, accurate, and complete.  An original signature is required on the submission. 

 To obtain Tier II reporting procedures and requirements for your state, please click on the state where your facility is located  on EPA’s website.

The completed Tier II form(s) must be submitted to each of the following organizations:  SERC, LEPC, and the fire department with jurisdiction over your facility.  If you have any questions about EPCRA Tier II reporting requirements and whether your facility may be subject to these regulations, please contact Paul Tomiczek III, REM, P.E. at ptomiczek3@cecinc.com or 800-365-2324. More information on EPCRA Tier II Reporting obligations and instructions for completing the Tier II report are provided here.

• Chemical manufacturers and importers (NAICS codes 325 and 324110, e.g., chemical manufacturing and processing and petroleum refineries).
• Chemical users and processors who may manufacture a byproduct chemical substance (NAICS codes 22, 322, 331, and 3344, e.g., utilities, paper manufacturing, primary metal manufacturing, and semiconductor and other electronic component manufacturing).

• Step I: Is your chemical substance subject to the CDR rule? A CDR reportable chemical is a chemical substance that is domestically manufactured or imported into the United States, is listed in the TSCA Inventory, and is not specifically exempted by 40 CFR 711.6(a).
• Step II: Are you a manufacturer (including importer) who is required to report? If you determined from Step I that you manufacture (or import) a CDR reportable chemical substance, you should subsequently determine whether you are a manufacturer (or importer) who must report. You are subject to CDR reporting if you manufactured (or imported) a chemical substance in production volumes of 25,000 pounds or greater at any single site you owned or controlled during 2011.
• Step III: What information must you report? If you determine from Steps I and II that you are a manufacturer (or importer) of a CDR reportable chemical substance and you are required to report, then you are required to report the information described in 40 CFR 711.15(b)(1), (b)(2), and (b)(3) in Parts I and II of Form U. Basic company and site identification information is required by 40 CFR 711.15(b)(1) and (b)(2). Chemical identification and information pertaining to the manufacture (including import) of chemical substances is required by 40 CFR 710.15(b)(3). Note that the basic company and site identification information is reported once per site, while the manufacturing information is reported separately for each reportable chemical substance at the site.

• The facility has 10 or more full-time employee equivalents; and
• The facility is included in a North American Industry Classification System (NAICS) code listed in Table I (provided in the TRI instructions); and
• The facility manufactures, processes, or otherwise uses any EPCRA Section 313 chemical in quantities greater than the established threshold in the course of a calendar year.

The number of full-time employees is dependent only upon the total number of hours worked by all employees and other individuals (e.g., contractors) for the facility during the calendar year and not the number of persons working. If the total number of hours worked by all employees for your facility is 20,000 hours or more, your facility meets the ten employee threshold.

Beginning with 2006 EPCRA Section 313 reporting, the TRI Program began requiring North American Industry Classification System (NAICS) codes instead of Standard Industrial Classification (SIC) codes. The list of NAICS codes for facilities that must report to TRI if all other threshold determinations are met is provided in Table I of the Toxic Release Inventory instructions and also on EPA’s website.

The term “manufacture” means to produce, prepare, compound, or import an EPCRA Section 313 chemical. You should also consider the possible coincidental production of an EPCRA Section 313 chemical as a result of the manufacture, processing, otherwise use or disposal of another chemical or mixture of chemicals.

The term “process” means the preparation of a listed EPCRA Section 313 chemical, after its manufacture, for distribution in commerce. Processing is usually the incorporation of an EPCRA Section 313 chemical into a product. A facility may process an impurity that already exists in a raw material by distributing that impurity in commerce.  Processing includes preparation of the EPCRA Section 313 chemicals in the same physical state or chemical form as that received by your facility, or preparation that produces a change in physical state or chemical form.

The term “otherwise use” means the use of an EPCRA Section 313 chemical, including an EPCRA Section 313 chemical contained in a mixture or other trade name product or waste that is not covered by the terms manufacture or process.  Otherwise use of an EPCRA Section 313 chemical does not include disposal, stabilization, or treatment for destruction unless certain conditions are met.  Relabeling or redistributing of the EPCRA Section 313 chemical where no repackaging of the EPCRA Section 313 chemical occurs does not constitute an otherwise use or processing of the EPCRA Section 313 chemical.  Some “otherwise uses” of listed EPCRA Section 313 chemicals are also exempted by the regulations.

EPCRA Section 313 chemicals contained in “articles” that are processed or otherwise used at a covered facility are exempt from threshold determinations and release and other waste management calculations. The exemption applies when the facility receives the article from another facility or when the facility produces the article itself. The exemption applies only to the quantity of EPCRA Section 313 chemical present in the article. If the EPCRA Section 313 chemical is manufactured (including imported), processed, or otherwise used at the covered facility other than as part of the article, in excess of an applicable threshold quantity, the facility is required to report that use of a chemical (40 CFR Section 372.38(b)).

If the processing or otherwise use of all like items results in a total release of 0.5 pound or less of an EPCRA Section 313 chemical in a reporting year to any environmental medium, EPA will allow this release to be rounded to zero, and the manufactured items retain their article status. The 0.5 pound threshold does not apply to each individual article, but applies to the sum of all releases from processing or otherwise use of all like articles.

EPCRA Section 313 reporting is required if threshold quantities are exceeded. If you meet the other criteria noted above, you must submit a report for any EPCRA Section 313 chemical that:

• Is not listed as a persistent bioaccumulative and toxic (PBT) chemical and which is manufactured or processed at your facility in excess of 25,000 pounds per toxic chemical or category over the calendar year.
• Is not listed as a PBT chemical and that is otherwise used at your facility in excess of 10,000 pounds per toxic chemical or category over the calendar year.
• Is listed as a PBT chemical and which is manufactured, processed or otherwise used at your facility above the designated threshold for that chemical.  The PBT chemical names, CAS numbers and reporting thresholds are listed in the TRI reporting instructions.

Facilities can only use TRI-MEwebor paper for submitting the Form R and/or Form A reports.  The report for the 2011 calendar reporting year will be due on or before July 1, 2012. If you have any questions about EPCRA Section 313 reporting requirements and whether your facility may be subject to these regulations, please contact Paul Tomiczek III, REM, P.E. at ptomiczek3@cecinc.com or 800-365-2324. More information on EPCRA Section 313 Reporting obligations and instructions for completing the report are provided here.