PADEP to Issue Draft Guidance for Response to Releases and Spills From Gas Sites

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CEC recently learned that the Pennsylvania Department of Environmental Protection (PADEP) will soon be issuing draft guidance that standardizes the regulatory requirements for reporting, remediating, and restoring areas impacted by spills or releases from oil and gas (O&G) well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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