THE GENERAL ASSEMBLY OF PENNSYLVANIA

SENATE BILL

INTRODUCED BY KASUNIC, YUDICHAK, SOLOBAY, HUGHES AND FONTANA, NOVEMBER 21, 2011

SENATOR M. WHITE, ENVIRONMENTAL RESOURCES AND ENERGY, AS AMENDED, MAY 23, 2012   

AN ACT

Amending Title 27 (Environmental Resources) of the Pennsylvania

<--

Consolidated Statutes, providing for use of mine drainage

water.

Amending Title 27 (Environmental Resources) of the Pennsylvania

<--

Consolidated Statutes, further providing for definitions, for

eligibility and project inventory, for landowner liability

limitation and exceptions, for project liability limitation

and exceptions and for exceptions.

The General Assembly of the Commonwealth of Pennsylvania

hereby enacts as follows:

Section 1.  Title 27 of the Pennsylvania Consolidated

<--

Statutes is amended by adding a chapter to read:

CHAPTER 81A

MINE DRAINAGE WATER

Sec.

81A01.  Scope of chapter.

81A02.  Findings.

81A03.  Purpose.

81A04.  Definitions.

81A05.  Eligibility.

81A06.  Natural gas operator liability limitation and

exceptions.

81A07.  Landowner liability limitation and exceptions.

81A08.  Water withdrawal permits.

81A09.  Relationship to Federal and State programs.

81A10.  Regulations.

§ 81A01.  Scope of chapter.

This chapter relates to the use of mine drainage water.

§ 81A02.  Findings.

The General Assembly finds and declares as follows:

(1)  This Commonwealth is poised for an extensive

development of the Marcellus Shale and other conventional and

unconventional natural gas reserves through the use of

hydraulic fracturing technology.

(2)  The hydraulic fracturing process utilizes large

quantities of water in the preparation and extraction of

natural gas from conventional and unconventional wells.

(3)  This Commonwealth's long history of mining has left

some waters unreclaimed and polluted.

(4)  This Commonwealth does not possess sufficient

resources to abate the pollution in these waters.

(5)  Numerous natural gas operators who do not have a

legal responsibility to abate the pollution in these waters

are interested in utilizing these polluted waters to

hydraulically fracture conventional and unconventional

natural gas wells but are reluctant to engage in the usage

because of the potential liabilities associated with the

usage of the polluted water.

(6)  It is in the best interest of the health, safety and

welfare of the people of this Commonwealth and the

environment to encourage the use of the polluted water in the

hydraulic fracturing of conventional and unconventional

natural gas wells.

§ 81A03.  Purpose.

This chapter is intended to encourage the use of polluted

water in hydraulic fracturing activity, to aid in the protection

of wildlife, to protect water resources, to aid in the

prevention of the pollution of rivers and streams, to protect

the environmental values of this Commonwealth and to eliminate

or abate hazards to health and safety. It is the intent of the

General Assembly to encourage voluntary use of polluted water in

the hydraulic fracturing of conventional and unconventional

natural gas wells. The purpose of this chapter is to protect the

quality and availability of fresh water resources by limiting

liability which could arise as a result of the voluntary use of

polluted water in hydraulic fracturing of natural gas wells.

This chapter is not intended to limit the liability of a person

who under existing law is or may become responsible to address

the polluted water or anyone who by contract, order or otherwise

is required to or agrees to perform the reclamation or abate the

polluted water.

§ 81A04.  Definitions.

The following words and phrases when used in this chapter

shall have the meanings given to them in this section unless the

context clearly indicates otherwise:

"Abandoned lands."  Land adversely affected by mineral or oil

or gas extraction and left or abandoned in an unreclaimed or

inadequately reclaimed condition.

"Compact basin commission."  As defined in section 3102

(relating to definitions).

"Department."  The Department of Environmental Protection of

the Commonwealth.

"Eligible land and water."  Land and water adversely affected

by mining or oil and gas extraction and left or abandoned in an

unreclaimed or inadequately reclaimed condition or left

discharging water pollution and for which no person has a

continuing reclamation or water pollution abatement obligation.

The term shall also include land and water adversely affected by

mining or oil and gas extraction and left in an unreclaimed or

inadequately reclaimed condition or left discharging water

pollution for which the department has forfeited and collected

the operators bonds and there is no outstanding claim, demand or

litigation concerning the bond forfeiture.

"Landowner."  A person who holds either legal or equitable

interest in the surface or mineral estate of eligible land and

water or other real property. The term includes a mining

company.

"Mineral."  Any aggregate or mass of mineral matter, whether

or not coherent, which is extracted by mining, including, but

not limited to, limestone, dolomite, sand, gravel, slate,

argillite, diabase, gneiss, micaceous sandstone known as

bluestone, rock, stone, earth, fill, slag, iron ore, zinc ore,

vermiculite, clay and anthracite and bituminous coal.

"Mining activity site."  A mining site that is abandoned,

inactive or is or was permitted by the department under any of

the following acts:

(1)  The act of June 22, 1937 (P.L.1987, No.394), known

as The Clean Streams Law.

(2)  The act of May 31, 1945 (P.L.1198, No.418), known as

the Surface Mining Conservation and Reclamation Act.

(3)  The act of April 27, 1966 (1st Sp.Sess., P.L.31,

No.1), known as The Bituminous Mine Subsidence and Land

Conservation Act.

(4)  The act of September 24, 1968 (P.L.1040, No.318),

known as the Coal Refuse Disposal Control Act.

(5)  The act of December 19, 1984 (P.L.1093, No.219),

known as the Noncoal Surface Mining Conservation and

Reclamation Act.

"Natural gas operator."  A person who holds a permit issued

under the act of December 19, 1984 (P.L.1140, No.223), known as

the Oil and Gas Act, to drill an oil or natural gas well in a

conventional or unconventional formation.

"Person."  A natural person, partnership, association,

association members, corporation, political subdivision of the

Commonwealth, an agency, instrumentality or entity of Federal

Government or State government or other legal entity recognized

by law as the subject of rights and liabilities.

"Polluted water."  Water which contains water pollution and

which is found in or originates from a mining activity site on

eligible land and water.

"Water pollution."  Waters of this Commonwealth that contain

pollution as defined in section 1 of the act of June 22, 1937

(P.L.1987, No.394), known as The Clean Streams Law, which was

caused by mining activities, oil or gas extraction or

exploration for these resources.

"Water withdrawal permit."  A permit or approval required by

a compact basin commission or the department to withdraw water

from the surface water or the groundwater.

§ 81A05. Eligibility.

(a)  General rule.--The following shall apply:

(1)  (i)  Except as provided under subparagraph (ii), a

landowner who allows the withdrawal of polluted water

from eligible land and water that originates from a

mining activity site, or a natural gas operator who

withdraws polluted water from eligible land and water

that originates from a mining activity site and, in

accordance with this chapter, utilizes the polluted water

to hydraulically fracture a conventional or

unconventional natural gas well and reuses, recycles and

properly disposes of any unutilized hydraulic fracturing

waste water shall be immune from liability and may raise

the protections afforded by this chapter in any

subsequent legal proceeding which is brought to enforce

environmental laws or otherwise impose liability in

regard to the eligible land and water or any existing

water pollution abatement facilities on the eligible land

and water.

(ii)  Nothing under this chapter shall relieve a

natural gas operator from liability for the proper

utilization and disposal of polluted water withdrawn from

eligible land and water that originates from a mining

activity site in accordance with this chapter.

(2)  A natural gas operator shall only be eligible for

the protections and immunities provided under section 81A06

(relating to natural gas operator liability limitation and

exceptions) if a written plan of the polluted water

withdrawal, utilization and disposal is submitted to and

approved by the department and, where applicable, a compact

basin commission. The plan shall include the approximate

volume of each withdrawal of polluted water, the locations of

eligible land and water where the withdrawals of polluted

water will occur, the locations of the natural gas wells

where the withdrawn polluted water will be utilized in

hydraulic fracturing, whether any processing or pretreatment

will be made to the polluted water, and the reuse or

treatment and disposal of any of the polluted water that is

recovered by the natural gas operator from a well that is

hydraulically fractured.

(b)  Departmental review.--The department shall review each

written plan. If the department determines that the plan meets

the following criteria, the department shall approve the plan:

(1)  The plan provides that use of the polluted water

will preserve water quality and availability in this

Commonwealth through the use of polluted water in hydraulic

fracturing of conventional and unconventional natural gas

wells.

(2)  The plan provides for proper storage of the polluted

water during its use and the ultimate proper disposal of the

polluted water following its use.

(3)  The plan demonstrates that withdrawal of polluted

water will not cause or contribute to water pollution at the

site of the withdrawal from eligible land and water or any

other location hydrogeologically connected to the withdrawal

site and will not otherwise affect or threaten a current or

proposed mining operation. The demonstration shall include a

closure plan that describes how all wells used to withdraw

polluted water will be properly closed and plugged upon

conclusion of use.

§ 81A06.  Natural gas operator liability limitation and

exceptions.

(a)  General rule.--Except as provided under subsection (b),

a natural gas operator who withdraws polluted water from a

mining activity site on eligible land and water for use in

hydraulic fracturing natural gas wells:

(1)  Shall not be deemed to assume legal responsibility

for or incur liability for any preexisting water pollution on

or hydrogeologically connected to the withdrawal site or for

the use of polluted water in hydraulic fracturing a

conventional or unconventional natural gas well.

(2)  Shall not be subject to a citizen suit filed

pursuant to section 601 of the act of June 22, 1937

(P.L.1987, No.394), known as The Clean Streams Law, for

pollution resulting from a withdrawal of polluted water and

its subsequent use.

(b)  Exceptions.--Nothing under this chapter shall limit the

liability of a natural gas operator who withdraws polluted water

from a mining activity site on eligible land and water for use

in hydraulic fracturing conventional or unconventional natural

gas wells for liability which results from the withdrawal of the

polluted water and which would otherwise exist:

(1)  For injury or damage resulting from the natural gas

operator's acts or omissions which are negligent, reckless or

constitute gross negligence or willful misconduct.

(2)  For the natural gas operator's unlawful activities.

(3)  For damage to landowners or other persons which

result from a withdrawal of polluted water if the written

plan described under section 81A05 (relating to eligibility)

was not provided to and approved by the department.

§ 81A07.  Landowner liability limitation and exceptions.

(a)  General rule.--Except as provided under subsections (b)

and (c), a landowner who provides access to the land which

results in withdrawals of polluted water for use in hydraulic

fracturing of conventional or unconventional natural gas wells:

(1)  Shall be immune from liability for any injury or

damage suffered by a natural gas operator withdrawing

polluted water while the natural gas operator or its employee

is within the land necessary for withdrawal of polluted

water.

(2)  Shall be immune from liability for any injury to or

damage suffered by a third party that arises out of or occurs

as a result of an act or omission of a natural gas operator

withdrawing polluted water which occurs during the

withdrawal.

(3)  Shall be immune from liability for any injury to or

damage suffered by a third party which arises out of or

occurs as a result of a withdrawal of polluted water.

(4)  Shall not be deemed to assume legal responsibility

to incur liability for any water pollution resulting from a

withdrawal of polluted water from a change in environmental

conditions at the mining activity site or any site

hydrogeologically connected thereto resulting from a

withdrawal of polluted water, or from its use in hydraulic

fracturing a conventional or unconventional natural gas well.

(5)  Shall not be subject to a citizen suit filed under

section 601 of the act of June 22, 1937 (P.L.1987, No.394),

known as The Clean Streams Law, for pollution resulting from

a withdrawal of polluted water and its subsequent use.

(b)  Duty to warn.--A landowner shall warn a natural gas

operator withdrawing polluted water of known abnormally

dangerous conditions located on the land in the area necessary

to withdraw polluted water. Nothing under this chapter shall

limit in any way or affect a landowner's liability which results

from a landowner's failure to warn of the known abnormally

dangerous conditions.

(c)  Exceptions to immunity.--Nothing under this chapter

shall limit in any way or affect a landowner's liability which

results from the withdrawal of polluted water and which would

otherwise exist:

(1)  For any injury or damage resulting from the

landowner's acts or omissions which are negligent, reckless

or constitute gross negligence or willful misconduct.

(2)  For the landowner's unlawful activities.

§ 81A08.  Water withdrawal permits.

Nothing under this chapter shall be construed to affect any

requirement for a water withdrawal permit.

§ 81A09.  Relationship to Federal and State programs.

The provisions of this chapter shall not prevent the

Commonwealth from enforcing requirements necessary or imposed by

the Federal Government as a condition to receiving or

maintaining program authorization, delegation, primacy or

Federal funds.

§ 81A10.  Regulations.

The department may promulgate rules and regulations necessary

to implement the provisions of this chapter.

Section 2.  This act shall take effect in 60 days.

Section 1.  The definitions of "eligible land and water,"

<--

"water pollution abatement facilities" and "water pollution

abatement project" in section 8104 of Title 27 of the

Pennsylvania Consolidated Statutes are amended and the section

is amended by adding definitions to read:

§ 8104.  Definitions.

The following words and phrases when used in this chapter

shall have the meanings given to them in this section unless the

context clearly indicates otherwise:

* * *

"Eligible land and water."  Land and water adversely affected

by mining or oil or gas extraction and left or abandoned in an

unreclaimed or inadequately reclaimed condition or left

discharging water pollution and for which no person has a

continuing reclamation or water pollution abatement obligation.

The term shall also include land and water adversely affected by

mining or oil or gas extraction and left in an unreclaimed or

inadequately reclaimed condition or left discharging water

pollution for which the Department of Environmental Protection

has forfeited and collected the operators bonds and there is no

outstanding litigation concerning the bond forfeiture. Without

limiting the foregoing, for purposes of water pollution

abatement projects involving the use of mine drainage or mine

pool water for hydraulic fracturing or other development of a

gas well, the term also includes land and water adversely

affected by mining and left in an unreclaimed or inadequately

reclaimed condition, or left discharging water pollution for

which a treatment trust fund naming the department as the

beneficiary of the trust has been established.

* * *

"Mine operator."  The permittee of an active or closed mine

that treats mine drainage under a permit issued by the

department.

* * *

"Treated mine drainage."  Water from an active or closed mine

that is treated by the mine operator under a permit issued by

the department. Treated mine drainage that meets the effluent

limits for the National Pollutant Discharge Elimination System

permit for the source mine is not a solid waste as defined in

section 103 of the act of July 7, 1980 (P.L.380, No.97), known

as the Solid Waste Management Act, and the regulations

promulgated thereunder.

* * *

"Water pollution abatement facilities."  The methods for

treatment or abatement of water pollution located on or

associated with eligible lands and water. These methods include,

but are not limited to, a structure, system, practice, technique

or method constructed, installed or followed to reduce, treat or

abate such water pollution. The methods also include a

structure, system, practice, technique or method constructed,

installed or followed to enable the use of mine drainage or mine

pool water from eligible land and water for hydraulic fracturing

or other development of a gas well.

"Water pollution abatement project."  A plan for treatment or

abatement of water pollution located on eligible lands and

water. These plans include, but are not limited to, the

practices to be followed and the installation, operation and

maintenance of facilities to reduce, treat or abate such water

pollution. The plans also include the use of mine drainage or

mine pool water from eligible land and water for hydraulic

fracturing or other development of a gas well that may or may

not be located on eligible lands and water. The use of treated

mine drainage from a permitted mining activity site for the

hydraulic fracturing or other development of a gas well is

considered a water pollution abatement project subject to the

provisions of this chapter.

Section 2.  Section 8105(d) of Title 27 is amended to read:

§ 8105.  Eligibility and project inventory.

* * *

(d)  Departmental review.--The department shall review each

proposed reclamation project and approve the project if the

department determines the proposed project:

(1)  will result in the regrading of the land to stable

contours that blend in and complement the drainage pattern of

the surrounding terrain with no highwalls, spoil piles or

depressions to accumulate water;

(2)  will result in the appropriate revegetation of the

site; and

(3)  is not likely to result in water pollution as

defined in section 1 of the act of June 22, 1937 (P.L.1987,

No.394), known as The Clean Streams Law.

The department shall review each proposed water pollution

abatement project and approve the project if the department

determines the proposed project is likely to improve the water

quality [and is not likely to make the water pollution worse] of

an existing discharge of pollution or will likely have a

beneficial impact on water resources in this Commonwealth.

* * *

Section 3.  Section 8106(a)(3) of Title 27 is amended and the

section is amended by adding a subsection to read:

§ 8106.  Landowner liability limitation and exceptions.

(a)  General rule.--Except as specifically provided in

subsections (b) and (c), a landowner who provides access to the

land, without charge or other consideration, which results in

the implementation of a reclamation project or a water pollution

abatement project:

* * *

(3)  Shall be immune from liability for any injury to or

damage suffered by a third party, including a downstream

riparian landowner, which arises out of or occurs as a result

of a reclamation project or a water pollution abatement

project.

* * *

(d)  Use of mine water for hydraulic fracturing.--

Notwithstanding a provision of this chapter, landowners and mine

operators that are responsible for treating mine drainage or

mine pool water from a permitted mining activity site shall not

be deemed to assume legal responsibility for or to incur

liability with respect to a cost, injury or damage that arises

out of or occurs in connection with the use of mine drainage,

mine pool water or treated mine water in connection with the

hydraulic fracturing process or other development of a gas well.

Section 4.  Sections 8107(a)(1) of Title 27 is amended and

the subsection is amended by adding paragraphs to read:

§ 8107.  Project liability limitation and exceptions.

(a)  General rule.--Except as specifically provided in

subsection (b), a person who provides equipment, funding, 

materials or services at no cost to the Commonwealth or at cost

for a reclamation project or a water pollution abatement project

or who implements any such project:

(1)  Shall be immune from liability for any injury to or

damage suffered by a person, including a downstream riparian

landowner, which arises out of or occurs as a result of:

(i)  the water pollution abatement facilities

constructed or installed during the water pollution

abatement project; and

(ii)  a reclamation project or a water pollution

abatement project.

* * *

(5)  May not be considered to be engaging in surface or

underground mining activities under the act of May 31, 1945

(P.L.1198, No.418), known as the Surface Mining Conservation

and Reclamation Act, or the act of April 27, 1966 (1st

Sp.Sess., P.L.31, No.1), known as The Bituminous Mine

Subsidence and Land Conservation Act, when the water

pollution abatement project involves the use of mine drainage

or mine pool water for hydraulic fracturing or other

development of a gas well.

(6)  May not be considered to be engaging in the

processing, treatment or disposal of a solid waste under the

act of July 7, 1980 (P.L.380, No.97), known as the Solid

Waste Management Act, or in the discharge of industrial waste

or pollutants under the act of June 22, 1937 (P.L.1987,

No.394), known as The Clean Streams Law, when using mine

drainage, mine pool water or treated mine water for hydraulic

fracturing or other development of a gas well.

* * *

Section 5.  Section 8111(a) of Title 27 is amended to read:

§ 8111.  Exceptions.

(a)  General [rule] rules.--The following shall not be

eligible for nor shall that person receive the benefit of the

protections and immunities available under this chapter,

provided that, any person who uses and any person who allows the

use of or provides mine drainage, mine pool water or treated

mine water, as part of a water pollution abatement project,

including a mine operator that provides for payment or otherwise

treated mine drainage for hydraulic fracturing or other

development of a gas well shall receive the benefit of the

protections and immunities available under this chapter:

(1)  Any person who under existing law shall be or may

become responsible to reclaim the land or treat or abate the

water pollution [or];

(2)  any person who [for] receives payment [or], 

consideration or [who receives] some other benefit through a

contract [or] to reclaim the land or treat or abate the water

pollution except as provided by this subsection; or

(3)  any person who through a consent order and agreement

or otherwise agrees or is ordered to perform or complete

reclamation or treat or abate water pollution as well as a

surety which provided a bond for the site [shall not be

eligible for nor shall that person receive the benefit of the

protections and immunities available under this chapter].

* * *

Section 6.  This act shall take effect in 60 days.