PADEP to Issue Draft Guidance for Response to Releases and Spills From Gas Sites

Posted on November 6, 2011 by Thomas L. Maher, Jr., P.G.

CEC recently learned that the Pennsylvania Department of Environmental Protection (PADEP) will soon be issuing draft guidance that standardizes the regulatory requirements for reporting, remediating, and restoring areas impacted by spills or releases from oil and gas (O&G) well operations. The guidance will be applicable to spills and releases from conventional well operations as well as unconventional shale gas exploration and production (E&P) operations involving the Marcellus and Utica Shales. The guidance is being developed to provide a consistent and uniform response program for releases and spills, and to establish a regulatory framework within which PADEP will exercise its administrative discretion when dealing with releases.

Until recently, responses to spills and releases from O&G operations were administered by the Office of Oil and Gas Management (OOGM), which was formerly referred to as the Bureau of Oil and Gas Management.   The various OOGM offices were free to exercise their discretion as to how to address each spill on a case-by-case basis. The incident reporting mechanism and overall responsibility for handling releases will remain with the OOGM, while the remediation of specific types of releases will be referred to the Bureau of Environmental Cleanup and Brownfields (BECB) for oversight of remedial activities. The practice of referring spills and releases to the BECB has already occurred with the issuance of several Notices of Violation that direct responsible parties to contact the BECB regarding procedures for conducting cleanups under the provisions of the Pennsylvania Land Recycling Program, commonly known as Act 2.  Specifically, environmental remediation standards established under Act 2 will be used whenever site remediation is required under the Clean Streams Law, the Air Pollution Control Act, the Solid Waste Management Act, the Hazardous Sites Cleanup Act, and the Storage Tank or the Spill Prevention Act.

The two types of releases specified in the guidance are based on their potential to cause environmental harm.  The first type is a release of regulated substances of less than 42 gallons that does not pose a danger of polluting waters of the Commonwealth and does not result in damage to the property. The guidance will specify that releases of that type will be cleaned up by removing visibly impacted soil.  For releases that exceed those criteria, performance of remediation of the impacted media will be required in accordance with the administrative and technical requirements of Act 2.  The cleanup standard used may be selected from three standards available in Act 2: Background Standard, Statewide Health Standard, or Site-Specific Standard. The Responsible Party would be required to follow the administrative process set forth in Act 2, including the submittal of a Notice of Intent to Remediate (NIR), publishing public notices and submitting a Final Report demonstrating attainment of the selected standard.  The submission of a NIR and public notifications can be waived under Act 2 if the final report is submitted within 90 days of the release.

Some potential concerns related to this guidance include:

  • The time needed to administratively complete the Act 2 process.  The Act 2 process will add to the administrative requirements and likely add to the time needed to obtain a release from PADEP. As indicated earlier in this posting, the administrative requirements could be reduced somewhat if a spill or release referred to the BECB is remediated to attainment of one of the remediation standards available under Act 2.
  • Potential for negative publicity: Increased negative publicity for the natural gas industry may result should the public notification portion of the Act 2 regulations be necessary.
  • Deed covenant requirement: Activities of natural gas operators are usually performed on leases and there is uncertainty about how landowners will react to the deed notification/environmental covenants required when utilizing site-specific cleanup standards under Act 2.  This would be the case for soils impacted by chlorides, a chemical of concern often associated with releases at natural gas sites.  There is no Statewide Health Standard for chloride in soil; and, as such, only the Site-Specific Standard and Background Standard are available for use under Act 2.

If you have questions on how the spill and release guidance might apply to your operations, please contact Bo Valli, P.G. (bvalli@cecinc.com) or Tom Maher, P.G. (tmaher@cecinc.com) at 800-365-2324.

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Reissued General Permit (PASPGP-4) Affects Linear Projects in Pennsylvania

Posted on July 19, 2011 by Paul A. Kanouff

On July 1, 2011 the U.S. Army Corps of Engineers (Corps) issued the Pennsylvania Special Programmatic General Permit-4 (PASPGP-4) which replaces the expired PASPGP-3.  The PASPGP is a federal Clean Water Act, Section 404 permit which can be authorized by the Pennsylvania Department of Environmental Protection (DEP) and county conservation districts for minor activities in wetlands, streams, rivers, and other waters without additional review by the Corps.  For the most part, the PASPGP-4 is a continuation of the PASPGP-3 but there are some key changes that will impact linear projects.  Although the changes were mainly aimed at the rapidly growing natural gas industry in Pennsylvania, they will affect all linear projects ranging from sewer and water pipelines to electrical, cable, and telephone lines.  The changes affecting linear projects are summarized in this posting.

One aspect of the PASPGP-4 which was the focus of a lot of debate was the definition of Single and Complete Projects.  The definition of a single and complete linear project still refers to each crossing of a separate water body.  However, the PASPGP-4 makes a distinction between the overall project and a single and complete project.  The overall project includes all regulated activities that are reasonably related and necessary to accomplish the project purpose.  Applicants must supply the locations for the start and end points along with the proposed crossings and the total cumulative impacts needed to accomplish the overall project.  Therefore, although a linear project may contain more than one single and complete project, the total cumulative impacts needed to accomplish the overall project must be disclosed.  The cumulative impacts (meaning the sum total of all of the crossings) for the overall project will then be used to determine the category of activity.  Therefore, if the cumulative impact for the overall project is greater than 1 acre of jurisdictional waters or 250 linear feet of streams, then the overall project will be a Category III activity and will be reviewed by the Corps.  However, the cumulative impacts are only used to determine the category level of the activity.  They are not used to determine whether the project is eligible for authorization under the PASPGP-4.  The project will still be eligible under a PASPGP-4 as long as the impacts for each single crossing are less than 1 acre of jurisdictional waters or 250 linear feet of streams.  Therefore, this process has not changed.

The PASPGP-4 includes clarification on the calculation of linear footage of stream impact.  The linear footage of stream impact is now to be measured from the top of bank to the top of the opposite bank and from the upstream to downstream limits of work.  The linear footage of stream impact will be the greater of these two measurements.  Therefore, the right-of-way (ROW) will typically be used to determine the linear footage of stream impacts for pipeline projects.

Through the PASPGP-4, the Corps has established two triggers which can automatically push a project into a Category III review.  The first trigger involves threatened and endangered species.  If the PNDI for a project identifies a conflict with a federally listed species or includes avoidance measures from the U.S. Fish and Wildlife Service (USFWS), the project will be considered a Category III activity and must be reviewed by the Corps.  The second trigger involves interstate projects.  Projects which will be located in Pennsylvania and another state will also be considered a Category III activity and must be reviewed by the Corps.

There was one major change to the PASPGP-4 that was included in the draft version of the general permit that was not included in the final version.  The Corps was expected to lower activities authorized as Waiver 2 (25 PA Code § 105.12(a)(2) Waiver 2) from a Category III activity to a Category 1 activity.  Waiver 2 is for water obstructions in a stream or floodway with a drainage area of 100 acres or less.  This waiver applies only to the DEP and not to the Corps.  Since these activities are still Category III, they must be reviewed by the Corps to obtain federal authorization for the project.

Lastly, projects which were authorized by the PASPGP-3 have been reauthorized by the PASPGP-4 provided the permit for the project had not expired by June 30, 2011.  For most projects, the new expiration date for the reauthorized PASPGP-3 will be tied to any applicable PADEP Chapter 105 applications such as a General Permit or Joint Permit.

If you have any questions regarding the requirements of the PASPGP-4 or any other aspects of the permitting requirements for linear projects in Pennsylvania, please contact Paul Kanouff at pkanouff@cecinc.com or 800-899-3610.

Filed under: Civil/Site, Ecological Services, Environmental, Water Resources | Tagged: , , , | Leave a Comment »

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