# Act 2 and the PA DEP Spill Policy

Brenda Costa, PG

Senior Associate Moody and Associates, Inc

.

# PADEP Spill Policy

• Issued by Bureau of Oil and Gas Planning and Program Management

• Title : Addressing Spills and Releases at Oil & Gas Well
Sites or Access Roads

• Effective Date : September 21
, 2013

# When do you need to report?

• “Must be reported”

- A spill or release causing or threatening pollution of the waters of the
Commonwealth.

• “Must notify”

- Reportable release of brine

-

• More than 5 gallons of brine within a 24

- hr period where TDS is greater than or equal to 10,000 mg/L.

• More than 15 gallons of brine within a 24

- hr period where TDS is less than 10,000 mg/L.

• “Department recommends”

- More than 5 gallons of a regulated substance over a 24

- hr period.

• “Department recommends but does not require”

- notify if more than 42 gallons within secondary containment.

# Reporting

• Reporting required under Spill Policy

• Reporting required under Clean Streams

• 2

- hour requirement by phone

– to the correct number 

### 1

- 800

- 541

- 2050

– immediately initiate interim remedial actions necessary to prevent or address an immediate threat to human health or the environment, including prevention of further migration of regulated substances.

• 15

- day requirement in writing (what happened, what have you done, declare method)

– Act 2

– Alternate Method

# Act 2 / Land Recycling Program

Voluntary Cleanup Program

• Background Standard

• Site Specific Standard

• Statewide Health Standard

A different cleanup standard can be selected
for each contaminant on site.

# Statewide Health Standard

• Published standards for groundwater, soils and vapors

• The selected standard is based on site conditions

– Used Aquifer or Non

- Use Aquifer

– Residential or Non

- Residential

• Results meet the numbers or do not meet the numbers.

• PA DEP position has been that these sites are residential.

# Background Standard

• Establish naturally occurring background concentrations at the
site

– Example: Arsenic

• Establish concentrations of substances moving onto the site

– Example Benzene

• Samples must be collected from
like materials

# Site Specific Standard

• Risk based

- institutional controls, for example:

• No groundwater usage,

• Capping,

• Fencing,

• Soil management plans, and

• Risk assessments.

• Typically requires a PA DEP

- driven Environmental Covenant

# Restoration Requirements

Any areas impacted by a spill or release should be restored in a timely manner.

# Pros of Act 2

• Once entered into the program, there are no timeframes for completing work

.

• Formal release from liability is provided to the operator/property owner/parties that participate in
the clean

- up

.

• Liability protection is transferable

.

• Memorandum of Understanding with EPA

# Cons of Act 2

• Public Notices

– PA DEP

– Newspaper

– Host Municipality

• Public participation (if requested) under Site Specific Standard

# Act 2
90

- day Spill Response Provision

• If a spill can be cleaned up, and a report generated and submitted to PA
DEP demonstrates attainment of Statewide Health Standards, then no public notices are required

.

# Alternate Method

• The Alternate Method follows all the provisions of Act 2, minus the public notices.

• Reporting Requirements

– 15

- day written notice

– Site Characterization Report (SCR) due within 180 days of release

– Remedial Action Plan (RAP) due within 45 days

• Cleanup requirements

– Background and/or Statewide Health Standards

– Cannot use Site Specific

# Alternate Method Pros

• No public notices

• Do not have to follow all aspects of Act 2 for reports

# Alternate Method Cons

• Cannot use Site Specific Standard for closure

– Example: Chloride in soil

• Set Deadlines to be meet for Site Characterization, etc.

• If all aspects of Act 2 are not followed, the owner / operator cannot obtain release from liability

# What you get instead of liability protection ....

Dear [ ] : The Department of Environmental Protection (DEP) has received the subject document . The document will be handled in accordance with the Alternative Remediation provision of the Department’s policy document 800

- 5000

- 001 Addressing Spills and Releases at Oil and Gas Well Sites or Access Roads

.
Response actions conducted under the Alternative Remediation provision do not qualify for the relief of environmental liability provided by the Land Recycling and Environmental Remediation Standards Act. If you would like to take the additional actions necessary to meet all of the requirements and receive the relief of liability provided by the Land Recycling and Environmental Remediation Standards Act, you should contact, Regional Manager, of the Environmental Cleanup and Brownfields Program at.

DEP will review and respond to your report submission within 60 days of the receipt date. You will receive a letter advising you of the DEP's action on your submission. If you have any questions or need further clarification of our procedures, please contact [EC&B Project Manager] by e

- mail at [Email Address]@pa.gov or by telephone at [Telephone Number]

.

# Types of Spill Response

• Flow Back Spills

• Diesel Fuel Spills

• Condensate Releases

• Antifreeze Spills

• Impoundment Releases

• Frac Tank Releases

• Drilling Mud Releases

• Base Oil Spills

• Hydraulic Oil Spills • Brine Spills

• Pad Leaching Investigations

• AMD Discharge Investigations (pad construction)

• Drill Cutting Pit Investigations

# Chapter 78 and the inclusion of Act 2 in The PA DEP’s Integrated Oil and Gas Spill Policy

ZAHAVA BENNETT
STEPTOE & JOHNSON PLLC Please visit our blog at http://www.environmentalessentials.com/

### Chapter 78 of the Pennsylvania Code governs the construction and operation of oil and gas wells.

The current focus of Chapter 78:

• Overseeing surface activities, including waste handling and spill prevention.

• Giving legal strength to policies that are already in place by elevating them to the status of a regulation.

• Creating a uniform methodology

Who is liable under the Spill Policy In the body of the Spill Policy the responsible parties are not defined

In the final technical guidance document the PA DEP states that it is the intention of the Department to make the permitted well operator responsible for all activities occurring on the permitted well site.

That includes spills or releases by contractors.

This expands the range of parties who are liable for reporting and remediation in the event of a spill or release.Lack of Statewide health standard for chlorides

Uncertain environmental benefits.  The proposed language in Chapter 78 states that, “If these wastes and pollutants are regulated substances as defined under Act 2 have contaminated soils and ground water; they must be addressed under Act 2.”

 Act 2 is historically a voluntary program.

 The Departments authority to “order” compliance is questionable.

 The PA DEP sites Section 106 of Act 2, which states that, “The environmental remediation standards established under this act shall be used whenever site remediation is voluntarily conducted or is required under” the referenced environmental laws.

## • There is concern that the PA DEP, if not violating the letter of the law, is at least violating the spirit of the law by creating mandatory compliance with Act 2 standards.

• Trying to retrofit oil and gas spill cleanup to meet State health standards without the creation of a standard for chlorides in soil is an easily correctable oversight; however the PA DEP has stated that it has no interest in making that correction.

• These industry issues and concerns have been conveyed to the Environmental Quality Board and the PA DEP in the comment documents submitted to the recent proposed Chapter 78 rulemaking.