CEC recently learned that the Pennsylvania Department of Environmental Protection (PADEP) will soon be issuing draft guidance that standardizes the regulatory requirements for reporting, remediating, and restoring areas impacted by spills or releases from oil and gas (O&G) well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.
You may be a bit confused about another deadline for Spill Prevention, Control and Countermeasure (SPCC) Plans considering the long history of this evolving regulation. EPA’s complete regulatory history can be found in their SPCC history, but here’s a chronology of the highlights:
- 1973: Original SPCC Rule published in Federal Register (12/11)
- 1991, 1993, & 1997: Proposed revisions
- 2002: Final “revised” SPCC Rule published (7/17)
- 2003 – 2006: Several compliance date extensions
- 2006: SPCC Rule Amendments (12/26)
- 2007 – 2009: Additional compliance date extensions
- 2009: Compliance Date Extended to November 10, 2010 (6/19)
- 2009: Final Rule on Amendments (11/5)
Three key take-aways from this history should be that 1) these regulations have been evolving for over 35 years now, 2) a final rule has been in place since 2002, and 3) the current compliance deadline is November 10, 2010.
Owner/operators should be aware that none of the regulatory actions that have occurred since 2002 have removed the obligation of affected facilities to comply with the Rule. EPA explains that compliance dates have been extended to allow owner/operators time to understand all the revisions and make changes as applicable to their facilities and plans. However, EPA states that “facilities must amend or prepare, and implement SPCC Plans by the compliance date in accordance with revisions to the SPCC rule promulgated since 2002.”
On November 5, 2009, the EPA Administrator signed the current “final” amendments to the SPCC Rule. The amendments are designed to increase clarity and streamline the requirements for SPCC Plans. The criteria for facilities to have and implement an SPCC Plan have not been changed. Non-transportation facilities with sufficient storage capacity that could discharge oil into navigable waters and/or shorelines are still subject to the Rule.
Tier I and II Facilities
The major recent change to the Rule is creation of Tier I and Tier II facilities. Tier I facilities are generally smaller sites with the following characteristics:
- Oil storage of less than 10,000 gallons aboveground;
- No single tank larger than 5,000 gallons; and
- No single oil discharge of more than 1,000 gallons in 3-year period, or no more than two discharges in excess of more than 42 gallons in any 12-month period.
SPCC Plans for Tier I facilities can be greatly simplified by using EPA’s template Tier I SPCC Plan. Tier I plans are not required to address many basic elements such as a facility diagram or facility description, compliance with facility drainage requirements or brittle fracture evaluations, and compliance with loading/unloading rack provisions. These plans may either be self-certified or certified by a Professional Engineer. The amendment does not supersede any state requirements for a Professional Engineer to certify the SPCC Plan.
Tier II facilities have the same characteristics as Tier I, except that the facility has at least one aboveground oil storage tank in excess of 5,000 gallons. Tier II facilities can be either self-certified or PE-certified, but they cannot use the template SPCC Plan.
November 10, 2010 Deadline
The significance of the November 10, 2010 compliance deadline depends on when the facility started operation, as follows:
|Date Facility Commenced Operation||November 10, 2010 Compliance Obligation|
|On or before August 16, 2002||Maintain the existing SPCC Plan and make amendments and implement changes as needed to comply with post-2002 revisions.|
|From August 16, 2002 through November 10, 2010||Prepare and implement an SPCC Plan consistent with current rules.|
|After November 10, 2010||Prepare and implement an SPCC Plan consistent with current rules before beginning operation.|
At this time, EPA’s recommends that facilities subject to the SPCC rule:
- Review the SPCC Rule, amendments, and compliance deadlines;
- Identify areas of your SPCC Plan that require amendment (if applicable);
- Make necessary facility modifications, if any; and
- Ensure that your SPCC Plan is up-to-date by November 10, 2010.
If you have any questions about SPCC applicability or recent amendments, please contact Kris Macoskey, QEP, at firstname.lastname@example.org or Paul Tomiczek, P.E., at email@example.com (800-365-2324). More information on EPA’s SPCC Rule can be found at EPA’s SPCC website: EPA’s SPCC Rule page.