PEC and Environmental Defense Fund (EDF) have sent the following joint statement to Senate Environmental Resources & Energy Committee members in opposition to Senate Bill 1088, concerning environmental protection and performance standards for the conventional oil and gas industry.
April 11, 2018
To: Members of the Senate Environmental Resources & Energy Committee Re: Opposition to Senate Bill 1088 (P.N. 1546)
The Environmental Defense Fund (EDF) and Pennsylvania Environmental Council (PEC) respectfully submit the following comments on Senate Bill 1088 (P.N. 1546), which we anticipate will come before the Senate Environmental Resources and Energy Committee for a vote early next week. At the start, we wish to express our appreciation to Senators Yaw and Hutchinson for allowing additional time for review and comment on this legislation.
SB 1088 seeks to revert performance and protection standards for the conventional oil and gas industry, which were modernized with the bipartisan enactment of Act 13 of 2012. However, even today, that law has yet to be fully implemented by the Department of Environmental Protection (DEP), as the agency was directed by the General Assembly in 2016 to restart their rulemaking for the conventional industry. It is our understanding that DEP is poised to issue a revised proposal for public comment in the near future.
SB 1088 would not only reverse protection standards from the 2012 law, it would actually be weaker in several important instances than the original 1984 Oil and Gas Act. Pennsylvania would have the discreditable distinction of being the only state in the country to walk back protections applied to oil and gas operations – whether conventional or unconventional. In fact, the way certain provisions are worded in this legislation, this bill could potentially weaken standards applied to unconventional operations as well.
Both EDF and PEC believe that any potential divergence in standards must be based on the practices and technologies employed at a well site, as well as objective risk assessment. Unfortunately, SB 1088 is a blunt instrument that fails against both of these metrics. This legislation contradicts leading industry practices as articulated in API standards and recommended practices.
Under Act 13, and as defined in SB 1088, the fundamental distinction between “conventional” and “unconventional” operations is one based on depth of drilling. “Conventional” wells can be drilled horizontally, and in many cases are hydraulically fractured at much shallower formations in closer proximity to groundwater – a fact this legislation clearly acknowledges. In other words, the legal distinction in Pennsylvania is made irrespective to the size of the operator or operation, the practices employed at the well site, or the associated risks involved.
Any law that alters protection standards should only do so where the actual operations at the well site allow. In our view, any well that employs high volume hydraulic fracturing should be subjected to stringent and uniform control. Other states follow this distinction for their application of standards – for example, the state of Illinois, which utilizes “high volume horizontal hydraulic fracturing operations”1 as a threshold. Pennsylvania should do the same.
Beyond this fundamental problem, there are several other major concerns with SB1088 including, but not limited to:
- Removal of language that requires additional analysis of potential impacts to Public Resources. This language was in the 1984 law, reinforced by Act 13, and validated by the Pennsylvania courts.
- Removal of any requirement for operators to disclose chemicals used in the fracturing process. Disclosure – for both conventional and unconventional operators – is currently required practice in Pennsylvania as well as in virtually all other jurisdictions in the United States, and it should remain that way.
- Removing storage, spill, and leak prevention provisions, despite the fact that conventional sites present spill and leak threats similar to unconventional operations. In fact, this legislation provides express exemptions from the state’s Storage Tank and Spill Prevention Act, and dramatically weakens spill and leak reporting requirements.
- Exempting certain existing wastewater treatment facilities from state water protection requirements, even though those protections have been applied for years.
- Weakening protections for impacted drinking water supplies, including failure to ensure that, in all instances, replacement supplies meet the standards of the Safe Drinking Water Act.
- Reducing setback provisions from homes, buildings, and surface waters.
- Weakening well integrity standards that are critical for groundwater protection.
- As was already invalidated by the Pennsylvania Supreme Court in 2013, attempting to preempt local ordinances that address issues associated with oil and gas activities.
- Maintaining woefully inadequate bonding and financial assurance requirements, which leaves Pennsylvanians on the hook for costly remediation work in the decades to come.
Senate Bill 1088 is a wholesale weakening of necessary protection standards; standards that are already the law in Pennsylvania, and that are accepted common practice in the industry and other oil and gas producing states. It also contradicts recent decisions of the Pennsylvania courts that have upheld protections on both statutory and constitutional grounds. For these reasons, we strongly urge you to oppose this bill.
Thank you for your consideration.
Director, Regulatory and Legislative Affairs, U.S. Climate and Energy
Environmental Defense Fund
Senior Vice President, Legal & Government Affairs
Pennsylvania Environmental Council
1 See 225 ILCS 732, Article 1, Section 1-5