Since the implementation of oil and gas exemptions in the 2005 Energy Policy Act, large federal agencies such as the EPA have been forced to cede regulatory power over hydraulic fracturing to individual state governments. While this power shift creates a lack of national standards, environmentalists and industry representatives alike have acknowledged the advantage of this decentralization as state governments are often better equipped to implement and enforce regulations for numerous and diverse local drilling operations.
Indeed, most states have stepped up to the challenge. Notable among them is Pennsylvania, where comprehensive drilling regulations were first adopted in 1984 in the state’s Oil and Gas Act. More extensive rules were later enacted through Chapters 78 and 79 of Pennsylvania Department of Environmental Protection (DEP) legislation1. As a result, Pennsylvania fracking regulations are some of the most multi-layered and comprehensive in the country. Furthermore, Pennsylvania state government control over drilling and fracking operations has been augmented by subsequent court decisions and adoption of state water protection laws. To use a financial analogy, when it comes to net worth in regulatory power, the state of Pennsylvania has one of the most diversified portfolios in the nation.
However, in the past few years, Pennsylvania municipalities have been using local zoning laws to increase municipal power over fracking and oil and gas drilling. This local challenge to Pennsylvania state power has created controversy over recent, pending legislation. While new legislation could have profound effects on Pennsylvania fracking regulations, let’s first examine currently established rules.
Current Pennsylvania fracking regulations
In order to obtain a permit to drill anywhere in the state of Pennsylvania, oil and gas companies must submit a detailed report to the Pennsylvania DEP that includes all information required to carry out environmental risk analysis. The well depth and location must be specified, as well as related geological information including the type and nature of surrounding rock formations, proximity to groundwater, and proximity to local water supplies. All surface water supply owners within 1,000 feet of the drill site must also be notified by certified mail. Finally, drillers must submit a deposit or bond to the state as security against violation of environmental regulations and restrictions1.
To comply with state regulations, gas drilling must not occur within 200 feet of drinking water supplies, within 100 feet of any surface water, or within 100 feet from any wetland greater than one acre in size1.
Water testing and drinking water replacement
Drillers are required by the Pennsylvania Oil and Gas Act to replace or resolve any loss of drinking water due to contamination from drilling operations. Drillers are held responsible for contamination if it occurs within 1,000 feet from the well in question and within 6 months after well completion. Drilling companies can contest responsibility for contamination in one of five ways1:
- the pollution existed prior to the drilling
- the landowner or water purveyor refused to allow the operator access to conduct a pre-drilling water test
- the water supply is not within 1,000 feet of the gas well
- the pollution occurred more than six months after completion of gas well drilling
- the pollution occurred as the result of some cause other than gas well drilling
These regulations have resulted in a much higher incidence of water pre-testing than in other states.
In addition to being held responsible for contamination of drinking water supply, the state of Pennsylvania also holds drilling companies responsible for loss of water quantity due to other factors such as use in fracking fluid. The Oil and Gas Act requires companies to restore or replace drinking water supplies significantly diminished by gas drilling activities1.
The DEP also keeps a tight watch on water use for hydraulic fracturing. The Water Resources Planning Act requires withdrawals of over 10,000 gallons per day to be reported to the DEP and all withdrawals resultant of Marcellus Shale drilling must be registered with either the Susquehanna River Basin Commission or the Delaware River Basin Commission1.
Surface land is often affected by the industrial operations needed to complete a well. Often, roads, drilling pads, and pipelines are constructed and ongoing operations involve numerous trips to transport machinery, fluids, and supplies. There is concern that erosion and sedimentation caused by these processes could affect groundwater supplies. As such, Pennsylvania requires the submission of an erosion and sedimentation plan to the DEP before drilling can begin1.
In response to reports of methane gas contamination of water wells in Pennsylvania, the state implemented extensive regulations controlling construction and standards for well casings in the spring of 20111. Additionally, this legislation requires drillers to report the quantity and chemical content of produced water created by individual wells1.
Produced water disposal
In 2010, the DEP imposed specific limitations on the amount of total dissolved solids (TDS) permitted in produced water before it could be discharged into local bodies of water. Before such disposal, produced water must be treated until no more than 2,000 mg/L of TDS are present1. These strict regulations have encouraged an unprecedented level of research and investigation into produced water recycling in Pennsylvania.
The state also requires drilling companies by law to plug wells after production ceases. The portion of well casing protecting groundwater must be maintained and its integrity verified before the well is further filled with non-porous material1.
Future Pennsylvania fracking regulations
While thorough and diverse state regulations have obviously been successful in filling the void of federal power, they have recently been challenged by rising municipal action. Over the past few years, as drilling in the Marcellus Shale has taken off, towns and cities throughout the state have enacted local bans and limitations based on individual zoning laws. These local laws have overridden state standards and created a complicated “patchwork” of rules that drew complaints from confused industry prospectors. In February of 2012, the state legislature passed Act 13, nicknamed the Impact Fee Law, in order to overhaul drilling regulations and restore state regulatory power2.
Act 13: the Impact Fee Law
The 2012 Act 13 implements several changes to existing regulations. These include2:
- expansion of the drilling contamination liability space from a 1,000 to 2,500 foot radius per well
- increase of civil penalties for violations of regulations
- required disclosure fracking chemicals to the DEP and publication of these disclosures on FracFocus.org
- transfer of funds from the Oil and Gas Lease Fund to the Environmental Stewardship Fund and Hazardous Sites Cleanup Fund
- new standards for setting drilling bond levels, based on length and number of wells in operation
Most importantly, Act 13 establishes a method of enforcement for new and existing state regulations meant to trump municipal laws. Act 13 requires drilling companies to pay an “impact fee” for every well drilled in the Marcellus Shale formation. The amount of the fee is set to vary with time and with fluctuating natural gas prices2. In 2012, the fee was set at $50,000 per horizontal well and a smaller $10,000 for vertical wells2. The fees are collected by the state and have generated around 180 million dollars of revenue in the past year2.
60% of this revenue would go to county and municipal governments—on one condition2. The recipient must not pass or enforce any drilling or fracking laws in excess of the state’s. Should local governments “violate” state regulations in this way, the state has the right to withhold impact fee money–in many cases depriving the municipality of millions of dollars.
The fate of Act 13
Although the adoption of Act 13 was met with gratitude by the oil and gas industry, the loss of power angered many local governments. Directly after the passing of the Act, a collection of Pennsylvania municipalities sued the state government for the violation of established municipal power4.
In the past year, the dispute has passed through numerous appeals to finally reach the state Supreme Court in October of 20124. However, the decision was delayed by the spring 2013 resignation of Justice Joan Orie Melvin4. Her resignation left an even number of 6 justices on the Court, making a tied 3-3 decision a possibility. Accordingly, Chief Justice Ronald Castille decided to delay the decision.
‘A 3-3 decision by our court is kind of meaningless,’ Castille said. Such outcomes ‘are bad for us, they are bad for everybody.’4
While a decision has yet to be made, the latest in the resolution of the dispute is the temporary appointment of Superior Court President Judge Correale Stevens to the Supreme Court3. While a new justice cannot be officially elected until 2015, Chief Justice Castille chose to temporarily fill the vacancy until the election. Stevens was recently nominated and confirmed by a 2/3 vote of the state senate in late June of this year3. In becoming the seventh vote out of an even six, Stevens could be instrumental in determining the future of Pennsylvania fracking regulations.
Delaware River Basin Commission Moratorium
While the state of Pennsylvania currently issues hydraulic fracturing permits according to established regulations, a de facto moratorium has been established in the northeastern part of the state due to legislative indecision within the Delaware River Basin Commission (DRBC).
The DRBC is a collaborative organization established in 1961 with the purpose of coordinating water management in the Delaware River Basin, which stretches 330 miles across parts of Pennsylvania, New York, New Jersey, and Delaware2. The Commission is made up of governors from each of those states along with a delegate from the Army Corp of Engineers, who represents federal interests2.
In the spring of 2010, the DRBC voted to discontinue issuing of drilling permits until new regulations addressing hydraulic fracturing could be established2. In a parallel to the legislative situation in New York, research and legislative drafts over the past 3 years have drawn heavy fire from both sides of the issue, resulting in a lack of finalized legislation. While a new regulatory system remains under debate, drilling in the Delaware River Basin will remain on hold.
1) Abdalla, C., Drohan, J., Swistock, B., & Boser, S. (2011). Marcellus shale gas well drilling: Regulations to protect water supplies in pennsylvania.Pennsylvania State University,
2) Delaware river basin commission: Battleground for gas drilling. (2013). National Public Radio,
3) Detrow, S. (2012). What the new impact fee law, act 13, means for pennsylvania. National Public Radio,
4) Heinz, A. The Unified Judicial System of Pennsylvania, (2013).Senate confirms judge stevens to supreme court
5) Marcellus Drilling News. (2013, March 26). [Web log message].