Encouraging the Use of Abandoned Coal Mine Drainage for Hydraulic Fracturing in Pennsylvania through a Good Samaritan Statute

Posted on June 21, 2012 by Chester Babst

The development of natural gas shale formations, such as the Marcellus and the Utica in Pennsylvania, Ohio and West Virginia, requires reliable sources of water for hydraulic fracturing that makes gas extraction from tight shale possible.  In Pennsylvania―a state with relatively plentiful ground and surface water sources―there are water sourcing challenges presented by various regulatory frameworks as well as withdrawal limitations in sensitive headwater areas of the state that coincide with current oil and gas activities. 

One alternative to using fresh water for hydraulic fracturing is the use of water supplies affected by acid mine drainage (AMD), which are also plentiful in Pennsylvania.  While the use of AMD by the oil and gas industry offers many potential benefits, operators are reluctant to become entangled in long-term liabilities created by the current legal framework for such pre-existing contamination.

Recognizing the need to encourage the treatment of abandoned AMD, Pennsylvania adopted the Good Samaritan Act, 27 Pa. Cons. Stat. §§ 8101 et seq., in 1999 to provide liability relief for various stakeholders, volunteers and watershed groups to undertake cleanup efforts of pre-existing contamination from AMD.  One recent legislative proposal would amend the Act to allow relief from liability for the use of mine drainage, mine pool water, or treated mine water for the development of a gas well.  This amendment, which has bi-partisan support in the Pennsylvania legislature, provides relief from third party claims as well as enforcement under various liability schemes.

On a parallel track, the Pennsylvania Department of Environmental Protection (PADEP) has been investigating means by which it could encourage the use of AMD by oil and gas operators.  See PADEP’s draft White Paper: Utilization of AMD in Well Development for Natural Gas Extraction, November 2012.  PADEP is engaging in ongoing discussions with stakeholders regarding possible processes and solutions for the treatment, storage, and liability issues associated with such an undertaking. 

At the federal level, the United States Environmental Protection Agency (EPA) has developed a Good Samaritan Initiative to protect volunteers from liability for the remediation of drainage from abandoned hard rock mines.  EPA’s program, however, does not encompass coal mine drainage, which is the primary source of AMD in Pennsylvania.  Short of legislative changes to the Clean Water Act or CERCLA to protect operators from potential liability, an expansion of EPA’s initiative to encourage the use of AMD for hydraulic fracturing in Pennsylvania would provide greater confidence to the oil and gas industry that both state and federal agencies are willing to provide appropriate relief to encourage the use of AMD.

While it seems like a win-win-win for the environment, industry and the Commonwealth, it remains to be seen if workable solutions will be found to encourage the use of AMD while limiting long-term liability related to that use.



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