www.bipc.com
Pipeline Planning, Permitting,
Construction and Operation:
Introduction to the Regulatory
Scheme Affecting Production
and Midstream Operations in
Pennsylvania
Megan E. Smith, Esq.
Buchanan Ingersoll & Rooney PC
August 1, 2013
Topics to be covered
 Overview of regulatory programs
impacting upstream and midstream
natural gas operations in Pennsylvania
 Pennsylvania Natural Diversity Index
(“PNDI”)
 Recent Federal air regulations
impacting natural gas industry
development planning
2
Pennsylvania Regulatory Overview
 Primary Sources of Regulation:
 58 Pa. Con. Stat. § 2301 et seq. (“Act 13”)
 25 Pa. Code Ch. 78
 Other major sources:
 Solid Waste Management Act, 35 Pa. Stat. § 6018.101 et
seq.
 Clean Streams Law, 35 Pa. Stat. § 691.1 et seq.
 Air Pollution Control Act, 35 Pa. Stat. § 4006.1 et seq.
 PADEP would also identify the Land Recycling and
Remediation Act, 35 Pa. Stat. §§ 6026.101-6026.909 (“Act 2”)
3
PNDI - Background
 Pennsylvania Natural Diversity Index (PNDI)
 Developed to assist PADEP in assessing/addressing
potential impacts to Threatened & Endangered (T&E)
Species
 Clearances required for virtually any permit/any
construction project in Pennsylvania
 Database managed by Pennsylvania Department of
Conservation of Natural Resources (DCNR)
4
PNDI - Authority
 Identified authority for PNDI:
 Federal
 Statutes:
– Endangered Species Act of 1973
– 16 U.S.C. §§ 1531 et seq.
 Regulations:
–
–
–
–
–
–
–
50 CFR § 17.11 (Endangered and threatened wildlife)
50 CFR § 17.12 (Endangered and threatened plants)
50 CFR § 17.95 (Critical Habitat - fish and wildlife)
50 CFR Part 222 (General endangered and threatened species)
50 CFR Part 226 (Designated critical habitat)
50 CFR Part 402 (Interagency Cooperation)
50 CFR Part 424 (Listing endangered and threatened species and
designating critical habitat)
5
PNDI – Authority (Cont’d)
 State
 Statutes:
– Wild Resources Conservation Act (administered by DCNR) 32 P.S. §§
5301 et seq. (Plants) (Section 5307 – Wild Plant Management)
– Fish and Boat Code (administered by the PFBC) 30 Pa. C.S.A. §§ 101
et seq. (Fish, amphibians, reptiles and aquatic organisms) (Section 102
– Definitions and Section 2305 Threatened and Endangered Species)
– Game and Wildlife Code (administered by the PGC) 34 Pa. C.S.A. §§
101 et seq. (Birds and mammals) (Section 102 – Definitions and
Section 2167 Endangered or Threatened Species)
– 2012 Oil and Gas Act, 58 Pa.C.S. 3201-3274 (administered by DEP) 58
Pa.C.S. § 3215 (Well Location Restrictions)
 Regulations:
– DCNR 17 Pa. Code Chapter 45 – Conservation of Pennsylvania Native
Wild Plants (Plants)
– PFBC58 Pa. Code Chapter 75 – Endangered and Threatened Species
(Fish, amphibians, reptiles and aquatic organisms)
– PGC 58 Pa. Code Chapter 133 – Wildlife Classification (Birds and
mammals)
6
PNDI – Authority (Cont’d)
 DEP
 Mineral Resources
–
–
–
–
–
–
–
–
–
–
–
–
25 Pa. Code § 77.126 (Criteria for permit approval or denial)
25 Pa. Code § 78.15 (Application Requirements)
25 Pa. Code § 86.37 (Criteria for permit approval or denial)
25 Pa. Code § 86.101 (Definitions)
25 Pa. Code § 86.102 (Areas where mining is prohibited or limited)
25 Pa. Code § 86.122 (Criteria for designing lands as unsuitable, fragile
lands)
25 Pa. Code § 86.129 (Coal exploration on areas designated as
unsuitable for mining)
25 Pa. Code §§ 87.50, 88.33, 89.74 and 90.18 (Fish and wildlife
resource information.)
25 Pa. Code §§ 87.159, 88.133 and 88.221 (Postmining land use.)
25 Pa. Code §§ 87.138, 89.65, 89.82 and 90.150 (Protection of fish,
wildlife and environmental values.)
25 Pa. Code § 87.84, 88.62 (Fish and wildlife protection and enhance
plant plans.)
25 Pa. Code § 90.202 (General requirements.) (Siting coal refuse
disposal site.)
7
PNDI – Authority (Cont’d)
 Waste Management, Environmental Cleanup and Brownfields
–
–
–
–
–
–
–
25 Pa. Code § 236.128 (Natural Resources.)
25 Pa. Code § 245.235 (Environmental assessment.)
25 Pa. Code § 250.1 (Definitions.)
25 Pa. Code § 250.311 (Evaluation of ecological receptors.)
25 Pa. Code §269.a.50 (Environmental assessment considerations.)
25 Pa. Code §§ 271.127, 287.127 (Environmental assessment.)
25 Pa. Code §§ 271.127, 273.202, 275.202, 277.202, 279.202,
281.202, 283.202, 284.220, 284.320, 285.134, 287.127, 287.661-662,
288.202, 288.422, 288.522, 288.622, 289.422, 289.522, 293.202,
295.202, 297.202, 299.144, 299.153 and 299.158 (relating to siting
criteria)
– 25 Pa. Code § 271.915 (Management practices.) (Sewage sludge.)
– 25 Pa. Code § 291.201 (General provisions.) (Land application of
residual waste.)
8
PNDI – Authority (Cont’d)
 Water Resources
–
–
–
–
–
–
–
–
25 Pa. Code § 71.21 (Content of official plans.)
25 Pa. Code § 92a.12 (Treatment requirements.)
25 Pa. Code § 93.4c (Implementation of antidegradation requirements.)
25 Pa. Code § 102.6 (Permit applications and fees.)
25 Pa. Code § 105.16 (Environmental, social and economic balancing.)
25 Pa. Code § 105.17 (Wetlands.)
25 Pa. Code § 105.381 (Location of dredging.)
25 Pa. Code § 105.401 (Permit applications.)
9
PNDI - Agencies
 Pennsylvania Agencies
 United States Fish and Wildlife Service
(USFWS)
 Department of Conservation of Natural
Resources (DCNR)
 Pennsylvania Game Commission (PGC)
 Pennsylvania Fish and Boat Commission
(PFBC)
10
PNDI – Online Tool
 DCNR manages online PNDI tool which
was built by the Pennsylvania Natural
Heritage Program (PNHP)
http://www.gis.dcnr.state.pa.us/hgis-er/Login.aspx
11
PNDI - Status
 PADEP PNDI Policy
 PNDI clearance duration – Extended from one
to two years
 Online PNDI tool expanded from two to ten
miles
 New DEP PNDI policy will be concurrent,
instead of sequential, permit & PNDI reviews
12
PNDI – Status (Cont’d)
 Remaining Concerns –
 Transparency of species data
– Like playing “battleship”
 Accountability in governance process
13
PNDI –Current Process Flow Chart
14
PNDI – Search Receipts Lack Transparency
• Typical PNDI Receipt
• Species information unknown
• Must send information into
agencies listed and wait for a
response.
15
PNDI – Final Thoughts
 Economic Community Needs
 To establish a uniform and transparent process for evaluating,
designating and protecting T&E species and their critical habitats
in PA
 NOT just an O&G industry issue
– Impacts anyone proposing to construct any type of facility in Pennsylvania
16
Air Regulations – NSPS OOOO
 New Source Performance Standards, 40
CFR § 60.5375(a)
 Rule for “affected gas wells” (with certain
exceptions) as of 1/1/15:
– (1) For the duration of flowback, route the recovered liquids into one or more storage
vessels or re-inject the recovered liquids into the well or another well, and route the
recovered gas into a gas flow line or collection system, re-inject the recovered gas
into the well or another well, use the recovered gas as an on-site fuel source, or use the
recovered gas for another useful purpose that a purchased fuel or raw material would
serve, with no direct release to the atmosphere. If this is infeasible, follow the
requirements in paragraph (a)(3) of this section.
– (2) All salable quality gas must be routed to the gas flow line as soon as
practicable. In cases where flowback emissions cannot be directed to the flow line, you
must follow the requirements in paragraph (a)(3) of this section.
17
NSPS OOOO (Cont’d)
– (3) You must capture and direct flowback emissions to a completion combustion device,
except in conditions that may result in a fire hazard or explosion, or where high heat
emissions from a completion combustion device may negatively impact tundra,
permafrost or waterways. Completion combustion devices must be equipped with a
reliable continuous ignition source over the duration of flowback.
– (4) You have a general duty to safely maximize resource recovery and minimize
releases to the atmosphere during flowback and subsequent recovery.
18
NSPS OOOO (Cont’d)
 Generally assumes a pipeline is available
at or shortly after a well is hydraulically
fractured
 Not necessarily so – midstream infrastructure
may lag behind
 Bottom line: Likely will require a shift in
the way that pipeline planning occurs to
ensure pipeline availability/capacity
19
Megan E. Smith, Esq.
Buchanan Ingersoll & Rooney PC
One Oxford Centre
301 Grant Street, 20th Floor
Pittsburgh, PA 15219
Telephone: 412-392-1626
E-mail: megan.smith@bipc.com
20