Regular Session 2023-2024 Senate Bill 0392 P.N. 0335

PRINTER'S NO. 335

THE GENERAL ASSEMBLY OF PENNSYLVANIA

SENATE BILL

No.

392

Session of

2023

INTRODUCED BY SCHWANK, FONTANA, HUGHES, TARTAGLIONE,

CAPPELLETTI, COMITTA, COSTA, KEARNEY, SAVAL AND MUTH,

FEBRUARY 21, 2023

REFERRED TO ENVIRONMENTAL RESOURCES AND ENERGY,

FEBRUARY 21, 2023

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.

"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 49 U.S.C. § 10101

et seq. (relating to interstate transportation).

(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

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defined under section 3 of the act of May 1, 1984 (P.L.206,

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.

diminution was caused by the pipeline construction or if the

department presumes the operator responsible for pollution under

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section 5, the department shall issue orders to the operator

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;

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(4) the pollution or diminution occurred more than 12

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.

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.

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The operator shall provide a copy of any sample results to the

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

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department for the operator to preserve the defenses under

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.

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Section 11. Regulations.

(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.

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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