July 26, 2013

July 29 PA Environment Digest Now Available

The July 29 PA Environment Digest is now available.  Click Here to print entire Digest.

Advisory Board Says DEP Chapter 78 Drilling Rule Changes Not Ready For Public Review

On July 18 the Oil and Gas Technical Advisory Board wrote to the Department of Environmental Protection recommending DEP not publish the proposed Chapter 78 Marcellus Shale regulation changes required by Act 13 for public comment because they are not fully developed.
DEP said the regulation changes will be going to the Environmental Quality Board on August 20 for its approval as proposed rulemaking for public review.
The letter said the proposed rule is not ready for publication for five reasons--
-- It does not meet the requirements of Executive Order 1996-1 or the Department’s Policy for Development, Approval and Distribution of Regulations because the agency did not review the regulations to determine if the cost of the regulation outweigh the benefits, if non-regulatory alternatives were explored and preferred over regulation, if the regulations address a “compelling public interest” and “definable public health, safety or environmental risks,” and if the regulation will hamper Pennsylvania’s ability to compete effectively with other states.
-- Significant portions of the rule were removed from discussion at TAB’s April 2013 meeting because they require further development in technical workgroups, a process that has just begun.  The subjects removed include: public resource protection, pre-hydraulic fracturing assessment (orphaned and abandoned wells), waste management at well sites and water supply restoration standards.
-- Certain provisions of the proposed rule exceed statutory authority, including provisions related to public resources, site restoration, pipelines and horizontal direction drilling and tanks and containers.
-- The Department has not critically analyzed or accommodated the anticipated impacts of the proposed rule on small businesses, which is required by the Regulatory Review Act and the Act 76 of 2012.
-- The rule fails to proposed criteria, which the Environmental Quality Board is specifically directed to do by Act 13, for the Department to use to impose permit conditions to mitigate probably harmful impacts to public resources while ensuring optimal development of oil and gas resources and respecting the property rights of oil and gas owners.
“To allow for full and robust public comment period, all of these concerns should be addressed before the proposed rule is published for comment.
“(The) Environmental Quality Board should remand the proposed rule to the Department and delay publishing any rule until the regulatory package is more fully developed and suitable for public comment.
“Indeed, the rule’s failure to propose any criteria with respect to public resource permit conditions renders the package incomplete and requires its return to the Department.”
The members of the Advisory Board signing the letter included: Gary Slagel (CONSOL Energy); Robert Watson, PhD (Penn State University); Samuel Fragale (Chief Oil & Gas); Burt Waite (Moody & Associates); and Arthur Yingling (Ark Resources, Inc.).
A copy of the letter is available online.

Friday NewsClips

PA Political Parties Engage In Job Growth Spat
Click Here for today's PA Environmental News

July 19, 2013

July 22 PA Environment Digest Now Available

The July 22 PA Environment Digest is now available.  Click Here to print entire Digest.

DEP Citizens Advisory Council Suggests Changes To Permit Public Participation Policy

On Tuesday the Citizens Advisory Council to DEP suggested important changes to the proposed Permit Review Public Participation Policy now out for public review until July 22.
The Council’s recommended changes include--
-- Allow for an additional 10 days of public review if new information which substantially changes a permit application is added to a permit file by either the applicant or DEP and allow the public the right to review that information under the Department’s file review procedures in time to comment;
-- Add a definition for “substantially changes,” which was taken out of the revised policy, to give further guidance to DEP in making its decision to add more public review time.  A substantial change would include an increase of 30 percent or more in the size of the facility or activity, a material change in the location of the project, a change in the materials used in the project that would increase its environmental impact and a material increase in the environmental impact of the project, among other factors;
-- Commends DEP for adding an option for web-based public hearings, but only as a supplement or extension of in-person hearings, not as a substitute, in particular in Environmental Justice communities or other areas where Internet access may be limited;
-- Further defining when informal conferences are used in the public participation process, clarifying who is allowed to attend and recommending a formal record of the conferences should be kept;
-- Clarify the Department is required to respond to comments it agrees and disagrees with in preparing a comment/response document;
-- Recommends DEP prepare an easy-to-understand citizens guide to public participation to explain in plain language how the public can become aware of permit applications in their communities and how they can participate in their review; and
-- Recommends DEP provide staff with training on public participation procedures.
In other actions, the Council--
-- Thanked 2 Former Members For Service: The Council unanimously adopted resolutions thanking Joelene Chinchilli and Gail Conner for their service on Council.  Chinchilli served on the Council for 17 years and Conner served for 8.
-- Review of Oil & Gas STRONGER Program: Jim Erb, a consultant and former Director of DEP’s Bureau of Oil and Gas Management, provided an overview of the State Review of Oil and Natural Gas Environmental Regulations (STRONGER) national program which evaluates state oil and gas management programs.
This voluntary program has so far conducted five reviews of Pennsylvania’s program, the most recent done in May by a panel including industry, government and environmental representatives.  The report from this most recent review will be available in September or October.
-- State Water Plan: Lisa Daniels, Director of DEP’s Bureau of Safe Drinking Water, said the agency is in the very early stages of developing an approach to the first five year update of the State Water Plan required by Act 220 of 2002.  Key to that effort will be filling vacant positions on the six regional water resource advisory committees (see related article).
The effort to update the Plan is being hampered, Daniels said, by the lack of funding and staff.
DEP is moving ahead with completing the Critical Water Planning Area Plans for the Laurel Hill Creek and Back Creek in the Ohio Basin and Marsh Creek and Rock Creek watersheds in the Potomac Basin.
The other Critical Water Planning Areas proposed by the Department-- Little Lehigh Creek and Brodhead Creek in the Delaware Basin and Sugar Creek and Spring Creek in the Upper/Middle Susquehanna Basin-- are being put on a “watch list” until DEP has the resources to complete those plans.
Daniels said her Bureau will also be starting to work on a new Drought Response Plan for the Commonwealth, working on an update water use reporting procedures and is evaluating Act 220 to determine if any changes in the law are needed.
Daniels noted DEP has supported legislation setting construction standards for private water wells-- House Bill 343 (Miller-R-York)-- recently reported out of the House Environmental Resources and Energy Committee, although she noted there are “holes” in the bill that should be filled in on issues like enforcement and program administration.
-- Coastal Zone Management Program: Don Benczkowski, Bureau of Interstate Waters, provided an overview of Pennsylvania’s CZM program, a review of the grant application process and briefed the Council on efforts to increase the size of the coastal zone along Lake Erie.
-- Department Report: DEP’s July Report to the CAC is available online.
The Council also heard reports from several of its committees--
-- Oil & Gas Technical Advisory Committee: Burt Waite said DEP’s Oil and Gas Technical Advisory Board will hold a series of work group meetings on the proposed changes to Chapter 78 regulations required by the Act 13 Marcellus Shale drilling law.  He noted DEP plans to take its draft of Chapter 78 to the Environmental Quality Board at its August 20 meeting to begin the formal public review process.
-- Policy & Regulatory Oversight: Nancy Perkins recommended and the Council took action to approve of DEP moving forward with the final Title V Air Quality Fee increases.
During its open public comment period, the Council heard from several speakers--
-- PA League of Women Voters: Roberta Winters noted the League recently adopted a resolution supporting efforts to preserve the Great Lakes Ecosystem; thanked the Council for its efforts to improve public participation at DEP; offered support for legislation setting construction standards for private water wells; and said the League would be participating in the review of upcoming changes to the Chapter 78 Oil and Gas regulations.
-- Sierra Club: Jeff Schmidt reported his group and others met with DEP staff on the issue of water analysis surrounding investigations of possible water contamination caused by drilling and found the initial meeting to be very helpful.  He expressed concern that both the Acting DEP Secretary Chris Abruzzo and Acting DCNR Secretary Ellen Ferretti had little environmental experience [click on the links to judge for yourself].
-- Stephen Kuntz, Schmid & Company: Kuntz noted DEP is now doing work to update its Act 54 report on damage caused by longwall mining and that August will mark the end of the next five year segment of reporting.  He expressed concern about the change in anti-degradation requirements in the review of on-lot septic system modules resulting from signing House Bill 1325 (Maloney-R-Berks) into law in July.
-- Clean Air Council: Matt Walker thanked the Council for its efforts to solicit public comments on how to improve public participation in the regulation and technical guidance development process.  He expressed concern about the public participation exemption in Air Quality General Permit 5 covering natural gas compressor stations.
-- Center for Coalfield Justice: Joanne Kilgour expressed disappointment the presentation on CONSOL longwall mining impacts was taken off the Council agenda after traveling from Washington, D.C..  [It was explained a note was placed on the Council webpage as soon as the item was removed from the agenda.]
Terry Dayton serves as Chair of the Council.  For more information, visit the DEP Citizens Advisory Council webpage.  The next scheduled meeting of the Council will be September 17.