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.