In Part 1 of this four-part series about the changing regulatory environment for unconventional Marcellus Shale gas wells in Pennsylvania due to the passage of Act 13, we covered many of the changes to permitting, reporting, bonding and notifications.
Now its time to focus on changes made to the environmental protections, setback provisions, liabilities and penalties. These changes became effective as of April 16, 2012.
Part 1 already mentioned the new disclosure requirements for hydraulic fracking chemicals. Previously, only a partial subset had to be disclosed and there were was virtually no public reporting required, which has been changed in Act 13 to include full disclosure (except for trade secret proprietary information, although even that must be disclosed in emergency situations or when spills have purportedly affected people) and public reporting through FracFocus.org website.
Trade secret assertions may also be challenged through the state’s Right-to-Know law. There’s also the matter of medical professionals having access to the information in spite of trade secret claims in order to conduct diagnoses and treatments for their patients. Doctors can compel companies to turn over this information if they need it.
Here are the new setback distances for unconventional gas wells required in different situations:
- 200-500 feet from existing buildings or water wells, unless consented to by the owner of the building or water well.
- 1,000 feet from a water supply extraction point used by a water purveyor, unless written consent is obtained from the water purveyor.
- 100-300 feet from any solid blue lined stream, body of water or wetland greater than one acre in size as identified in the most recent 7.5-minute topographic quadrangle map of the US Geological Survey.
- Unconventional well site pads must also maintain a setback of 100 feet between the edge of disturbance and any stream, spring, body of water or wetland greater than one acre in size.
The department can grant a variance from these distance restriction if the company submits a plan that details additional measure, facilities or practices to prevent problems and that is approve by the DEP. The permit will contain any additional terms or conditions to ensure the safety of surrounding people and property and water resources.
Liabilities and Penalties
If a company’s fracking activities damage a water supply by pollution or depletion, it bears the responsibility of replacing that water supply to meet the water quality standards present before the effects of fracking or to the standards of the PA Safe Drinking Water Act (whichever results in a higher quality). Act 13 increased the liability of fracking companies for water contamination, to include any affected water supply within 2,500 feet of an unconventional well and that occurs within 12 months of a well’s use.
The company must provide a temporary supply of potable water until the previous supply is restored or replaced. Landowners and water purveyors must allow the company to have access in order to conduct pre-drilling or pre-alteration surveys. If they don’t, the liability of the company may be rebutted. Companies must inform landowners and water purveyors in advance of this condition.
Note that if it so chooses, the DEP can send its own specialist respondents to a well control emergency that it hires or contracts with, and the company operating the well will be responsible for all costs incurred by the DEP. Act 13 also ups the penalties for criminal violations of the laws and regulations from $300 to $1,000 per offense. Civil penalties have been increased to $75,000 plus $5,000 per day (up from from $25,000 and $1,000 per day).
This second part in our four-part series related to fracking regulations in Pennsylvania has been focused on the environmental protections, setback provisions, liabilities and penalties that apply to unconventional gas wells. Stay tuned for Part 3, which will focus on new rules and regulations related to well containment and corrosion controls.
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