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| THE GENERAL ASSEMBLY OF PENNSYLVANIA |
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| SENATE BILL |
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| INTRODUCED BY KASUNIC, YUDICHAK, SOLOBAY, HUGHES AND FONTANA, NOVEMBER 21, 2011 |
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| REFERRED TO ENVIRONMENTAL RESOURCES AND ENERGY, NOVEMBER 21, 2011 |
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| AN ACT |
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1 | Amending Title 27 (Environmental Resources) of the Pennsylvania |
2 | Consolidated Statutes, providing for use of mine drainage |
3 | water. |
4 | The General Assembly of the Commonwealth of Pennsylvania |
5 | hereby enacts as follows: |
6 | Section 1. Title 27 of the Pennsylvania Consolidated |
7 | Statutes is amended by adding a chapter to read: |
8 | CHAPTER 81A |
9 | MINE DRAINAGE WATER |
10 | Sec. |
11 | 81A01. Scope of chapter. |
12 | 81A02. Findings. |
13 | 81A03. Purpose. |
14 | 81A04. Definitions. |
15 | 81A05. Eligibility. |
16 | 81A06. Natural gas operator liability limitation and |
17 | exceptions. |
18 | 81A07. Landowner liability limitation and exceptions. |
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1 | 81A08. Water withdrawal permits. |
2 | 81A09. Relationship to Federal and State programs. |
3 | 81A10. Regulations. |
4 | § 81A01. Scope of chapter. |
5 | This chapter relates to the use of mine drainage water. |
6 | § 81A02. Findings. |
7 | The General Assembly finds and declares as follows: |
8 | (1) This Commonwealth is poised for an extensive |
9 | development of the Marcellus Shale and other conventional and |
10 | unconventional natural gas reserves through the use of |
11 | hydraulic fracturing technology. |
12 | (2) The hydraulic fracturing process utilizes large |
13 | quantities of water in the preparation and extraction of |
14 | natural gas from conventional and unconventional wells. |
15 | (3) This Commonwealth's long history of mining has left |
16 | some waters unreclaimed and polluted. |
17 | (4) This Commonwealth does not possess sufficient |
18 | resources to abate the pollution in these waters. |
19 | (5) Numerous natural gas operators who do not have a |
20 | legal responsibility to abate the pollution in these waters |
21 | are interested in utilizing these polluted waters to |
22 | hydraulically fracture conventional and unconventional |
23 | natural gas wells but are reluctant to engage in the usage |
24 | because of the potential liabilities associated with the |
25 | usage of the polluted water. |
26 | (6) It is in the best interest of the health, safety and |
27 | welfare of the people of this Commonwealth and the |
28 | environment to encourage the use of the polluted water in the |
29 | hydraulic fracturing of conventional and unconventional |
30 | natural gas wells. |
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1 | § 81A03. Purpose. |
2 | This chapter is intended to encourage the use of polluted |
3 | water in hydraulic fracturing activity, to aid in the protection |
4 | of wildlife, to protect water resources, to aid in the |
5 | prevention of the pollution of rivers and streams, to protect |
6 | the environmental values of this Commonwealth and to eliminate |
7 | or abate hazards to health and safety. It is the intent of the |
8 | General Assembly to encourage voluntary use of polluted water in |
9 | the hydraulic fracturing of conventional and unconventional |
10 | natural gas wells. The purpose of this chapter is to protect the |
11 | quality and availability of fresh water resources by limiting |
12 | liability which could arise as a result of the voluntary use of |
13 | polluted water in hydraulic fracturing of natural gas wells. |
14 | This chapter is not intended to limit the liability of a person |
15 | who under existing law is or may become responsible to address |
16 | the polluted water or anyone who by contract, order or otherwise |
17 | is required to or agrees to perform the reclamation or abate the |
18 | polluted water. |
19 | § 81A04. Definitions. |
20 | The following words and phrases when used in this chapter |
21 | shall have the meanings given to them in this section unless the |
22 | context clearly indicates otherwise: |
23 | "Abandoned lands." Land adversely affected by mineral or oil |
24 | or gas extraction and left or abandoned in an unreclaimed or |
25 | inadequately reclaimed condition. |
26 | "Compact basin commission." As defined in section 3102 |
27 | (relating to definitions). |
28 | "Department." The Department of Environmental Protection of |
29 | the Commonwealth. |
30 | "Eligible land and water." Land and water adversely affected |
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1 | by mining or oil and gas extraction and left or abandoned in an |
2 | unreclaimed or inadequately reclaimed condition or left |
3 | discharging water pollution and for which no person has a |
4 | continuing reclamation or water pollution abatement obligation. |
5 | The term shall also include land and water adversely affected by |
6 | mining or oil and gas extraction and left in an unreclaimed or |
7 | inadequately reclaimed condition or left discharging water |
8 | pollution for which the department has forfeited and collected |
9 | the operators bonds and there is no outstanding claim, demand or |
10 | litigation concerning the bond forfeiture. |
11 | "Landowner." A person who holds either legal or equitable |
12 | interest in the surface or mineral estate of eligible land and |
13 | water or other real property. The term includes a mining |
14 | company. |
15 | "Mineral." Any aggregate or mass of mineral matter, whether |
16 | or not coherent, which is extracted by mining, including, but |
17 | not limited to, limestone, dolomite, sand, gravel, slate, |
18 | argillite, diabase, gneiss, micaceous sandstone known as |
19 | bluestone, rock, stone, earth, fill, slag, iron ore, zinc ore, |
20 | vermiculite, clay and anthracite and bituminous coal. |
21 | "Mining activity site." A mining site that is abandoned, |
22 | inactive or is or was permitted by the department under any of |
23 | the following acts: |
24 | (1) The act of June 22, 1937 (P.L.1987, No.394), known |
25 | as The Clean Streams Law. |
26 | (2) The act of May 31, 1945 (P.L.1198, No.418), known as |
27 | the Surface Mining Conservation and Reclamation Act. |
28 | (3) The act of April 27, 1966 (1st Sp.Sess., P.L.31, |
29 | No.1), known as The Bituminous Mine Subsidence and Land |
30 | Conservation Act. |
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1 | (4) The act of September 24, 1968 (P.L.1040, No.318), |
2 | known as the Coal Refuse Disposal Control Act. |
3 | (5) The act of December 19, 1984 (P.L.1093, No.219), |
4 | known as the Noncoal Surface Mining Conservation and |
5 | Reclamation Act. |
6 | "Natural gas operator." A person who holds a permit issued |
7 | under the act of December 19, 1984 (P.L.1140, No.223), known as |
8 | the Oil and Gas Act, to drill an oil or natural gas well in a |
9 | conventional or unconventional formation. |
10 | "Person." A natural person, partnership, association, |
11 | association members, corporation, political subdivision of the |
12 | Commonwealth, an agency, instrumentality or entity of Federal |
13 | Government or State government or other legal entity recognized |
14 | by law as the subject of rights and liabilities. |
15 | "Polluted water." Water which contains water pollution and |
16 | which is found in or originates from a mining activity site on |
17 | eligible land and water. |
18 | "Water pollution." Waters of this Commonwealth that contain |
19 | pollution as defined in section 1 of the act of June 22, 1937 |
20 | (P.L.1987, No.394), known as The Clean Streams Law, which was |
21 | caused by mining activities, oil or gas extraction or |
22 | exploration for these resources. |
23 | "Water withdrawal permit." A permit or approval required by |
24 | a compact basin commission or the department to withdraw water |
25 | from the surface water or the groundwater. |
26 | § 81A05. Eligibility. |
27 | (a) General rule.--The following shall apply: |
28 | (1) (i) Except as provided under subparagraph (ii), a |
29 | landowner who allows the withdrawal of polluted water |
30 | from eligible land and water that originates from a |
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1 | mining activity site, or a natural gas operator who |
2 | withdraws polluted water from eligible land and water |
3 | that originates from a mining activity site and, in |
4 | accordance with this chapter, utilizes the polluted water |
5 | to hydraulically fracture a conventional or |
6 | unconventional natural gas well and reuses, recycles and |
7 | properly disposes of any unutilized hydraulic fracturing |
8 | waste water shall be immune from liability and may raise |
9 | the protections afforded by this chapter in any |
10 | subsequent legal proceeding which is brought to enforce |
11 | environmental laws or otherwise impose liability in |
12 | regard to the eligible land and water or any existing |
13 | water pollution abatement facilities on the eligible land |
14 | and water. |
15 | (ii) Nothing under this chapter shall relieve a |
16 | natural gas operator from liability for the proper |
17 | utilization and disposal of polluted water withdrawn from |
18 | eligible land and water that originates from a mining |
19 | activity site in accordance with this chapter. |
20 | (2) A natural gas operator shall only be eligible for |
21 | the protections and immunities provided under section 81A06 |
22 | (relating to natural gas operator liability limitation and |
23 | exceptions) if a written plan of the polluted water |
24 | withdrawal, utilization and disposal is submitted to and |
25 | approved by the department and, where applicable, a compact |
26 | basin commission. The plan shall include the approximate |
27 | volume of each withdrawal of polluted water, the locations of |
28 | eligible land and water where the withdrawals of polluted |
29 | water will occur, the locations of the natural gas wells |
30 | where the withdrawn polluted water will be utilized in |
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1 | hydraulic fracturing, whether any processing or pretreatment |
2 | will be made to the polluted water, and the reuse or |
3 | treatment and disposal of any of the polluted water that is |
4 | recovered by the natural gas operator from a well that is |
5 | hydraulically fractured. |
6 | (b) Departmental review.--The department shall review each |
7 | written plan. If the department determines that the plan meets |
8 | the following criteria, the department shall approve the plan: |
9 | (1) The plan provides that use of the polluted water |
10 | will preserve water quality and availability in this |
11 | Commonwealth through the use of polluted water in hydraulic |
12 | fracturing of conventional and unconventional natural gas |
13 | wells. |
14 | (2) The plan provides for proper storage of the polluted |
15 | water during its use and the ultimate proper disposal of the |
16 | polluted water following its use. |
17 | (3) The plan demonstrates that withdrawal of polluted |
18 | water will not cause or contribute to water pollution at the |
19 | site of the withdrawal from eligible land and water or any |
20 | other location hydrogeologically connected to the withdrawal |
21 | site and will not otherwise affect or threaten a current or |
22 | proposed mining operation. The demonstration shall include a |
23 | closure plan that describes how all wells used to withdraw |
24 | polluted water will be properly closed and plugged upon |
25 | conclusion of use. |
26 | § 81A06. Natural gas operator liability limitation and |
27 | exceptions. |
28 | (a) General rule.--Except as provided under subsection (b), |
29 | a natural gas operator who withdraws polluted water from a |
30 | mining activity site on eligible land and water for use in |
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1 | hydraulic fracturing natural gas wells: |
2 | (1) Shall not be deemed to assume legal responsibility |
3 | for or incur liability for any preexisting water pollution on |
4 | or hydrogeologically connected to the withdrawal site or for |
5 | the use of polluted water in hydraulic fracturing a |
6 | conventional or unconventional natural gas well. |
7 | (2) Shall not be subject to a citizen suit filed |
8 | pursuant to section 601 of the act of June 22, 1937 |
9 | (P.L.1987, No.394), known as The Clean Streams Law, for |
10 | pollution resulting from a withdrawal of polluted water and |
11 | its subsequent use. |
12 | (b) Exceptions.--Nothing under this chapter shall limit the |
13 | liability of a natural gas operator who withdraws polluted water |
14 | from a mining activity site on eligible land and water for use |
15 | in hydraulic fracturing conventional or unconventional natural |
16 | gas wells for liability which results from the withdrawal of the |
17 | polluted water and which would otherwise exist: |
18 | (1) For injury or damage resulting from the natural gas |
19 | operator's acts or omissions which are negligent, reckless or |
20 | constitute gross negligence or willful misconduct. |
21 | (2) For the natural gas operator's unlawful activities. |
22 | (3) For damage to landowners or other persons which |
23 | result from a withdrawal of polluted water if the written |
24 | plan described under section 81A05 (relating to eligibility) |
25 | was not provided to and approved by the department. |
26 | § 81A07. Landowner liability limitation and exceptions. |
27 | (a) General rule.--Except as provided under subsections (b) |
28 | and (c), a landowner who provides access to the land which |
29 | results in withdrawals of polluted water for use in hydraulic |
30 | fracturing of conventional or unconventional natural gas wells: |
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1 | (1) Shall be immune from liability for any injury or |
2 | damage suffered by a natural gas operator withdrawing |
3 | polluted water while the natural gas operator or its employee |
4 | is within the land necessary for withdrawal of polluted |
5 | water. |
6 | (2) Shall be immune from liability for any injury to or |
7 | damage suffered by a third party that arises out of or occurs |
8 | as a result of an act or omission of a natural gas operator |
9 | withdrawing polluted water which occurs during the |
10 | withdrawal. |
11 | (3) Shall be immune from liability for any injury to or |
12 | damage suffered by a third party which arises out of or |
13 | occurs as a result of a withdrawal of polluted water. |
14 | (4) Shall not be deemed to assume legal responsibility |
15 | to incur liability for any water pollution resulting from a |
16 | withdrawal of polluted water from a change in environmental |
17 | conditions at the mining activity site or any site |
18 | hydrogeologically connected thereto resulting from a |
19 | withdrawal of polluted water, or from its use in hydraulic |
20 | fracturing a conventional or unconventional natural gas well. |
21 | (5) Shall not be subject to a citizen suit filed under |
22 | section 601 of the act of June 22, 1937 (P.L.1987, No.394), |
23 | known as The Clean Streams Law, for pollution resulting from |
24 | a withdrawal of polluted water and its subsequent use. |
25 | (b) Duty to warn.--A landowner shall warn a natural gas |
26 | operator withdrawing polluted water of known abnormally |
27 | dangerous conditions located on the land in the area necessary |
28 | to withdraw polluted water. Nothing under this chapter shall |
29 | limit in any way or affect a landowner's liability which results |
30 | from a landowner's failure to warn of the known abnormally |
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1 | dangerous conditions. |
2 | (c) Exceptions to immunity.--Nothing under this chapter |
3 | shall limit in any way or affect a landowner's liability which |
4 | results from the withdrawal of polluted water and which would |
5 | otherwise exist: |
6 | (1) For any injury or damage resulting from the |
7 | landowner's acts or omissions which are negligent, reckless |
8 | or constitute gross negligence or willful misconduct. |
9 | (2) For the landowner's unlawful activities. |
10 | § 81A08. Water withdrawal permits. |
11 | Nothing under this chapter shall be construed to affect any |
12 | requirement for a water withdrawal permit. |
13 | § 81A09. Relationship to Federal and State programs. |
14 | The provisions of this chapter shall not prevent the |
15 | Commonwealth from enforcing requirements necessary or imposed by |
16 | the Federal Government as a condition to receiving or |
17 | maintaining program authorization, delegation, primacy or |
18 | Federal funds. |
19 | § 81A10. Regulations. |
20 | The department may promulgate rules and regulations necessary |
21 | to implement the provisions of this chapter. |
22 | Section 2. This act shall take effect in 60 days. |
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