The coal industry has an undeniable impact on the state of Pennsylvania. For better or for worse, coal has shaped the energy industry in Pennsylvania. The state has shifted its focus from coal to other natural resources such natural gas and oil from the Marcellus Shale. However, the legacy the coal industry has left significant impacts on these new energy developments. The coal industry has left behind many negative environmental impacts within the state, which has left many residents and lawmakers hesitant about the future of energy production in the state. Recently the Pennsylvania Supreme Court declared the new Oil and Gas Act unconstitutional for violating Art. 1 § 27 (Environmental Rights Amendment) of the Pennsylvania Constitution which protects the residents’ environmental rights. In the majority opinion, Chief Justice Castille stated the Environmental Rights Amendment was created to protect the environment and Pennsylvania’s citizens from the kind of exploitation it endured during the height of the coal era. Last year the legislature attempted to bridge the gap between coal and the Marcellus boom in an environmentally friendly manner under Senate Bill 411. The bill is an amendment to the Environmental Good Samaritan Act (“EGSA”), but it never made its way to the House of Representatives. However, it has been re-reported on January 13, 2014.
The EGSA was enacted in 1999 to encourage cleanup efforts of polluted lands and waterways affected by abandoned coal mines and oil and gas wells without subjecting those cleaning up to liability under the Hazardous Sites Cleanup Act or the Pennsylvania Clean Streams Law. Each of these laws permit the state government to hold any party who “touches” the land or water liable for the reclamation needed. The purpose of the amendments under Senate Bill 411 is to allow oil and gas operators and other industrial applications to use acid mine drainage (“AMD”) without being subjected to strict liability under the Hazardous Sites Cleanup Act or the Clean Streams Law. Essentially, the amendments are adding a “beneficial use” clause to the EGSA to significantly broaden the statute to allow parties to create beneficial uses from former mine sites without liability, rather than just cleaning them up.
AMD is an overflow of acidic water from abandoned mines. It is an unfortunate byproduct from former mining practices. AMD creates an orange hue in the waterways and streams it effects. According to the Department of Environmental Protection, abandoned coal mining operations create 300 million gallons of polluted way each day. If enough AMD reaches a waterway, it will kill off all natural occurring life.
The amendments would help expand the EGSA in a positive way to help speed up the reclamation process by allowing those to escape liability if it is likely that their use of the land/water would have a beneficial impact. Originally the bill was focused strictly on allowing gas operators to use the AMD for frack water in natural gas production. However, the bill was expanded in recent amendments to include any “beneficial use.”
Seneca Resources, a gas operator, has already begun using AMD for fracking fluid to some degree of success. A recent study has shown that using AMD in fracking helps reduce radioactivity in fracking wastewater. The conservation of fresh water is an ancillary environmental benefit of the act as well. However, most importantly the expanded EGSA allows for companies to both effectively clean up abandoned mine sites without fear of future liability and efficiently extract natural gas through hydraulic fracturing. Stronger constitutional protections under the Environmental Rights Amendment and more lawmakers being conscientious of the balance needed between energy production and the environment allows for the possibility of responsible growth in energy production. The specific amendments to the EGSA in Senate Bill 411 will encourage the “troubled water” and an industry with a bad environmental reputation to make positive contributions in passing the torch of energy production industry in Pennsylvania.