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EQB No Longer Has Statutory Authority To Change Conventional Oil & Gas Well Bonding Amounts To Help Prevent 400 to 600 New Well Abandonments A Year; Adopts Proposed Changes To Water Quality Standards For Comment

On July 11, the Environmental Quality Board voted to accept the Department’s report on a rulemaking petition submitted by the Sierra Club and other groups in September of 2021 that the EQB no longer has the authority to adjust well bonding amounts for 10 years under Act 96 passed and signed into law by Gov. Wolf on July 19, 2022.

The petitioners agree DEP and the Board no longer have that statutory authority for 10 years.

DEP did say this in response to comments by the petitioners-- “While the Department agrees that the current bonding requirements for conventional oil and gas wells are insufficient, once the General Assembly suspended the EQB’s statutory authority to establish bond amounts, the Department did not conduct an analysis of all of the factual assertions and financial assessments made in the Petition.”

In response to another petitioner comment that DEP has an obligation as a trustee under the Environmental Rights Amendment to the state constitution to ensure oil and gas wells are properly remediated, DEP said Act 96 may be unconstitutional--

“The Department acknowledges that it is one of the Article I, Section 27 Commonwealth trustees, and is one of the executive agencies responsible for protecting and preserving the rights contained in Article I, Section 27 of the Pennsylvania Constitution.

“The Department and the EQB do not necessarily agree with the characterization of the extent of the Commonwealth’s trustee obligations, but do not dispute that the Commonwealth must comply with the constitution.

“However, the passage of Act 96 by the General Assembly – also a Commonwealth trustee under Article I, Section 27 – eliminated the statutory authority of the EQB to establish bond amounts. Article I, Section 27 does not overcome the prerequisite of EQB rulemakings to be authorized by statute.

“To the extent Act 96 restrains the agencies’ powers to carry out the Commonwealth’s constitutional obligations, the act may be unconstitutional.

“Neither the Department nor the EQB can resolve this constitutional conflict. Likewise, the EQB may not adopt regulations that are not supported by statute.”

Click Here for DEP’s report on the petition.

Triennial Review Of Water Quality Standards

The Board also adopted the proposed rulemaking updating a variety of water quality standards and narrative criteria to maintain water uses and antidegradation requirements under the federal Clean Water Act for public comment.

The proposal makes these changes, among others--

-- New Aquatic Life Criteria: Carbaryl and Tributyltin

-- Revised Aquatic Life Criteria: Cadmium

-- New Human Health Criteria: 1,4-Dioxane, Chlorophenoxy herbicide (2,4-D)

-- Revised Human Health Criteria- Less Stringent: Acetone, Formaldehyde, Metolachlor, Resorcinol, Chloroform

-- Revised Human Health Criteria- More Stringent: Barium, Boron, Meth ethyl ketone, 1,2,3-trichloropropane, 1,2,4-trimethylbenzene, 1,3,5-trimethylbenzene, Chlorophenoxy herbicide (2,4-D) and Xylene

-- Human Health Criteria- No Change: Acrylamide, 2-Butoxy ethanol, cyclohexylamine, strontium, benzyl chloride

Click Here for a summary of the rulemaking.

New Deputy For Water Programs

DEP Secretary Richard Negrin introduced Bevin Ann Buchheister, Esq. as the new Acting Deputy Secretary for Water Programs at the July 11 Environmental Quality Board meeting. Read more here.

Site-Specific Methylmercury Standard

The EQB adopted the proposed rulemaking changing the site-specific water quality standard for methylmercury in Ebaughs Creek in York County from 0.05 ug/L to 0.00004 ug/L in response to a request by the York County Solid Waste and Refuse Authority for public comment.

Click Here for a summary of the rulemaking.

Vanadium Standard

The EQB adopted the final regulation that sets contamination cleanup standards for vanadium under the Land Recycling Program.

The standard is based on more recent toxicity information from the U.S. Geological Survey and the U.S. Environmental Protection Agency for this element than can be naturally occurring.

Click Here for a summary of the rulemaking.

For available handouts and other background on agenda items, visit DEP’s Environmental Quality Board meeting. Questions should be directed to Laura Griffin at laurgriffi@pa.gov or (717) 772-3277.

Related Articles - Conventional Well Abandonment:

-- Democrats On House Environmental Committee Report Out Bill To Help Prevent The Routine Abandonment Of 561 Conventional Oil/Gas Wells A Year [PaEN]

-- DEP Report Finds: Conventional Oil & Gas Drillers Routinely Abandon Wells; Fail To Report How Millions Of Gallons Of Waste Is Disposed; And Non-Compliance Is An ‘Acceptable Norm’ [PaEN]

-- EDF: Pennsylvania Has 55,000 Oil/Gas Wells At High Risk Of Being Abandoned; 51,000 Wells At Risk Of Being Transferred To Low Solvency Owners; Current Conventional Well Owners Abandon 561 Wells A Year, On Average [PaEN]

-- House Hearing: Let’s Work Together To Make Conventional Oil & Gas Industry Practices Cleaner, Respect Property Rights, Protect Taxpayers And Prevent New Abandoned Wells [PaEN]

NewsClips:

-- Public News Service: Report: Oil And Gas Air Pollution Effects On Health Of Pennsylvanians

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-- StateImpactPA - Susan Phillips: New Sinkhole Forms [Again] Along Mariner East Natural Gas Liquids Pipeline In Chester County

-- Independent Fiscal Office Reports PA Natural Gas Production Peaked In 4th Quarter 2021 [PaEN]

-- US Energy Information Administration: 2022 Appalachian Natural Gas Production Flat With Productivity Declines In Key Counties In PA