Coal mine operators in Pennsylvania who treat mine water for use in oil and gas drilling operations would be protected from liability under legislation signed into law by Gov. Tom Wolf (D) on Oct. 8.
Pennsylvania may be the first state to try to promote the re-use of acid mine drainage by removing liabilities on coal mine operators, practitioners told Bloomberg BNA.
“I think this is a first-of-its-kind bill,” Matthew Stepp, director of policy for PennFuture, told Bloomberg BNA in a phone call Oct. 1. The environmental advocacy organization opposed the bill even though it does present an “interesting” way to try to take care of Pennsylvania’s acid mine drainage (AMD) problem, Stepp said.
“In the long term, there’s the potential that this could be a good thing” if it spurs research and investment in cleaning up mine drainage, Stepp said. However, it’s unclear how re-use of treated mine water in fracking operations could affect groundwater and the environment
overall, Stepp said.
“There is absolutely no scientific research or understanding of what the potential impacts of using the treated AMD will be,” he said. PennFuture is also concerned that in the process of trying to promote the treatment and reuse of acid mine drainage, the measure removes liabilities under different environmental regulations, potentially creating a situation “where no one can be held accountable” in the event that something goes wrong, Stepp said.
While the legislation attempts to remove certain liabilities under state law for both coal mine operators and oil and gas developers, it wouldn’t remove liabilities under federal laws such as the Clean Water Act or the Comprehensive Environmental Response, Compensation and Liability Act (CERCLA), according to John J. McAleese, a partner in the environmental and energy practice group in McCarter & English LLP’s Philadelphia office.
“There’s no exclusion of liability under the federal Superfund statute in this act for either the coal mine operator or the oil and gas well operator,” McAleese told Bloomberg BNA in a phone call Oct. 7. “So I think it’s got some gaps from that standpoint.”
The bill seems to attempt to match up state and federal laws so that the use of treated mine water in oil and gas drilling could be considered a federally permitted wastewater release under the Clean Water Act, McAleese said.
According to the bill, “Treated mine water that meets the effluent limits of the National Pollution Discharge Elimination System permit for the source mine and is being used in an oil or gas development project shall not be considered a solid waste” under Pennsylvania’s Solid Waste Management Act.
The solution “is not a panacea,” McAleese said. “I still think there’s some risks involved” for both the coal mine operator and well operator, he said. “I think somebody could make the argument that this is not a federally permitted discharge.”
The bill will take effect in 60 days.