PRINTER'S NO. 17
THE GENERAL ASSEMBLY OF PENNSYLVANIA
SENATE BILL
No.
40
Session of
2019
INTRODUCED BY SCHWANK, FONTANA, SANTARSIERO, FARNESE, DINNIMAN,
HUGHES AND COSTA, JANUARY 11, 2019
REFERRED TO ENVIRONMENTAL RESOURCES AND ENERGY, JANUARY 11, 2019
AN ACT
Providing for the protection of water supplies.
The General Assembly of the Commonwealth of Pennsylvania
hereby enacts as follows:
Section 1. Short title.
This act shall be known and may be cited as the Pipeline
Impact Water Resource Protection Act.
Section 2. Definitions.
The following words and phrases when used in this act shall
have the meanings given to them in this section unless the
context clearly indicates otherwise:
"Board." The Environmental Quality Board established under
section 1920-A of the act of April 9, 1929 (P.L.177, No.175),
known as The Administrative Code of 1929.
"Common carrier." As the term is defined under 66 Pa.C.S. §
102 (relating to definitions).
"Department." The Department of Environmental Protection of
the Commonwealth.
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"Natural gas." A fossil fuel consisting of a mixture of
hydrocarbon gases, primarily methane, which may include ethane,
propane, butane, pentane, carbon dioxide, oxygen, nitrogen and
hydrogen sulfide and other gas species. The term includes
natural gas from oil fields known as associated gas or casing
head gas, natural gas fields known as nonassociated gas, coal
beds, shale beds and other formations. The term does not include
coal bed methane.
"Operator." An operator or owner of a pipeline.
"Pipeline." Any of the following:
(1) A pipeline used for transporting or conveying
natural or artificial gas, crude oil, gasoline or petroleum
products for the public for compensation which is operated or
owned by a common carrier that is regulated by one or both of
the following:
(i) the Pennsylvania Public Utility Commission, as a
public utility, as the term is defined in paragraph (1)
(v) of the definition of public utility under 66 Pa.C.S.
§ 102; or
(ii) the Federal Government under the Interstate
Commerce Act of 1887 (49 U.S.C § 10101 et seq.).
(2) A pipeline subject to regulation under the act of
December 22, 2011 (P.L.586, No.127), known as the Gas and
Hazardous Liquids Pipelines Act.
"Pipeline construction." The term includes the use of
horizontal directional drilling technology and the use of trench
or ditch techniques.
"Water purveyor." Any of the following:
(1) The owner or operator of a public water system as
defined under section 3 of the act of May 1, 1984 (P.L.206,
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No.43), known as the Pennsylvania Safe Drinking Water Act.
(2) A person subject to the act of June 24, 1939
(P.L.842, No.365), referred to as the Water Rights Law.
Section 3. Protection of water supplies.
(a) Restoration or replacement.--An operator that affects a
public or private water supply by pollution or diminution during
pipeline construction shall restore or replace the affected
supply with an alternate source of water adequate in quantity or
quality for the purposes served by the supply.
(b) Duties of department.--The department shall ensure that
the quality of a restored or replaced water supply meets the
standards established under the act of May 1, 1984 (P.L.206,
No.43), known as the Pennsylvania Safe Drinking Water Act, or is
comparable to the quality of the water supply before it was
affected by the operator if the water supply exceeded those
standards. The board shall promulgate regulations necessary to
meet the requirements of this section.
Section 4. Pollution or diminution of water supply.
(a) Notification and request.--A landowner or water purveyor
affected by pollution or diminution of a water supply during
pipeline construction may notify the department of the pollution
and request that an investigation be conducted. The department
shall notify the operator of the investigation.
(b) Investigation.--Within 10 days of notification, the
department shall investigate the claim and make a determination
within 45 days following notification.
(c) Findings.--If the department finds that the pollution or
diminution was caused by the pipeline construction or if the
department presumes the operator responsible for pollution under
section 5, the department shall issue orders to the operator
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necessary to ensure compliance with section 3(a), including
orders requiring temporary replacement of a water supply if it
is determined that pollution or diminution may be of limited
duration.
Section 5. Presumption of liability.
Unless rebutted by a defense established under section 7, it
shall be presumed that an operator is responsible for pollution
or diminution of a water supply if:
(1) the water supply is within 2,500 feet of a pipeline;
and
(2) the pollution or diminution occurred within 12
months after completion of the pipeline construction.
Section 6. Temporary water supply.
If the affected water supply is within 2,500 feet of a
pipeline and the rebuttable presumption applies, the operator
shall provide a temporary water supply if the water user is
without a readily available alternative source of water. The
temporary water supply provided under this subsection shall be
adequate in quantity and quality for the purposes served by the
supply.
Section 7. Defenses.
To rebut the presumption established under section 5, an
operator must affirmatively prove one of the following:
(1) the pollution existed prior to the pipeline
construction as determined by a preconstruction survey;
(2) the landowner or water purveyor refused to allow the
operator access to conduct a preconstruction survey;
(3) the water supply is not within 2,500 feet of the
pipeline;
(4) the pollution or diminution occurred more than 12
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months after completion of the pipeline construction; or
(5) the pollution or diminution occurred as the result
of a cause other than the pipeline construction.
Section 8. Preconstruction survey.
(a) Requirement.--An operator electing to preserve a defense
under section 7(1) shall retain an independent certified
laboratory to conduct a preconstruction survey of the water
supply. For the purposes of this subsection, the term survey
means all of the water supply samples associated with a single
private or public water supply taken before pipeline
construction.
(b) Preconstruction survey.--A person that wishes to
document the quality of a water supply to support a future claim
that the drilling or alteration of the well affected the water
supply by pollution may conduct a preconstruction survey in
accordance with this section.
(c) Independent Pennsylvania-accredited laboratory.--The
survey shall be conducted by an independent Pennsylvania-
accredited laboratory. A person that is not the operator or an
employee of the independent Pennsylvania-accredited laboratory
may collect the sample and document the condition of the water
supply if the laboratory affirms that the sampling and
documentation is performed in accordance with the laboratory's
approved sample collection, preservation and handling procedure
and chain of custody.
(d) Sample results.--An operator electing to preserve a
defense under section 7 shall provide a report containing a copy
of all sample results taken as part of the survey to the
department within 10 business days of receipt of the results.
The operator shall provide a copy of any sample results to the
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landowner or water purveyor within 10 business days of receipt
of the sample results. Survey sample results not received by the
department within 10 business days may not be used to preserve
the operator's defenses under section 7.
(e) Report.--A report containing the survey sample results
must contain the following information:
(1) The location of the water supply and the name of the
landowner or water purveyor.
(2) The date of the survey.
(3) The name of the independent Pennsylvania-accredited
laboratory performing the survey.
(4) The individual who conducted the survey.
(5) A description of where and how the samples were
collected.
(6) A description of the type and age, if known, of the
water supply and, if any, treatment.
(7) The name of the well operator, name and number of
the well to be drilled and the permit number, if known.
(8) The results of the laboratory analysis.
(9) A measurement of the quantity of water produced from
the water source prior to pipeline construction.
Section 9. Notice.
(a) Written notice required.--
(1) An operator must provide written notice to the
landowner or water purveyor indicating that the presumption
established under section 5 may be void if the landowner or
water purveyor refused to allow the operator access to
conduct a preconstruction survey. Proof of written notice to
the landowner or water purveyor must be provided to the
department for the operator to preserve the defenses under
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section 7. Proof of written notice to a landowner or water
purveyor shall be presumed if provided in accordance with
paragraph (2).
(2) A well operator that wishes to preserve the defense
under section 7(2) must issue a notice to the landowner or
water purveyor by certified mail. The notice must include the
following:
(i) The operator's intention to drill or alter a
well.
(ii) The operator's desire to conduct a
preconstruction survey.
(iii) The name of the person who requested and was
refused access to conduct the survey and the date of the
request and refusal.
(iv) The name and address of the well operator.
(v) The address of the department should the
landowner or water purveyor wish to respond.
(b) Presumption.--Receipt of notice by a landowner or water
purveyor under subsection (a) shall be presumed to have occurred
15 days from the date of the certified mailing if the operator
submits a copy of the certified mail receipt sent to the
landowner or water purveyor and an affidavit certifying that the
address to which notice was sent is the same as the address
listed in the assessment books in the county where the property
is located.
Section 10. Other remedies preserved.
Nothing in this act shall be construed to prevent a landowner
or water purveyor claiming pollution or diminution of a water
supply from seeking any other remedy at law or in equity.
Section 11. Regulations.
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(a) Duties of board.--In order to facilitate the prompt
implementation of this act, the board shall have the authority
to promulgate temporary regulations which shall expire not later
than two years following the publication of the temporary
regulation in the Pennsylvania Bulletin and on the board's
publicly accessible Internet website.
(b) Temporary regulations.--The board may promulgate
temporary regulations not subject to:
(1) Sections 201, 202, 203, 204 and 205 of the act of
July 31, 1968 (P.L.769, No.240), referred to as the
Commonwealth Documents Law.
(2) Section 204(b) of the act of October 15, 1980
(P.L.950, No.164), known as the Commonwealth Attorneys Act.
(3) The act of June 25, 1982 (P.L.633, No.181), known as
the Regulatory Review Act.
(c) Publication.--The board shall begin publishing temporary
regulations within 45 days of the effective date of this
subsection.
(d) Expiration.--The board's authority to adopt temporary
regulations under subsection (b) shall expire two years after
publication of the temporary regulations. Regulations adopted
after this period shall be promulgated as provided by law.
Section 12. Effective date.
This act shall take effect in 60 days.
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