Monday, December 19, 2011

Pennsylvania: Local Regulations, Mineral Rights and Fracking in Your Backyard

The first house we owned was just outside Pittsburgh, PA. We read all the paperwork and discovered that the property title was not fee simple, but rather the “mineral rights were excepted and reserved.” The wooded ravine behind the house bore all the signs of a surface coal mining operation that had not been reclaimed, but merely left to weed and fast growing trees. Coal mining had changed from manual pillar and room mining of my grandfather’s day to continuous long wall mining and surface mining using draglines. I worried about the someday when better mining techniques or a nation desperate for energy might come back for the coal which sat beneath my house. Not once did I think about coal gas, or fracking, but homeowners in Pennsylvania better be thinking about that now. Legislation before the General Assembly may bring fracking to your neighborhood.

In Pennsylvania, ownership of surface rights and ownership of minerals rights are often separated. In addition, mineral rights on the same tract may be separated from each other - oil, gas, coal, hard rock minerals, etc. may all be owned by separate companies. The mineral rights were usually separated before land was partitioned so that an individual or corporation may own the rights to an entire neighborhood. Pennsylvania does not maintain ownership records of mineral properties in a central location nor do they have property tax records for the mineral rights because they do not pay property taxes on those rights. Rather; county governments maintain the old transfer records that contain this. Surface deeds are recorded in the county's Recorder of Deeds office, but the mineral rights are not, unless the mineral rights have recently been sold and the sale taxed.

All surface and mineral owners have property rights under the law. Pennsylvania recognizes both the mineral owner's right to recover the mineral, and the landowner's right to protection from unreasonable encroachment or damage. Some towns have attempted to control hydraulic fracturing and shale gas processing through zoning. Now, Pennsylvania is considering legislation that would effectively remove oil and gas drilling and related gas processing activities from nearly all local land use regulation, including regulation under the Municipalities Planning Code. The legislation, Pennsylvania House Bill 1950, passed the House of the General Assembly on Nov. 17, 2011 by a vote of (107-76), was amended in the Senate and sent back to the house. This version is not expected to pass in the next two days, instead it is expected that a committee will be appointed to form a compromise bill.

This bill would amend Title 58 (Oil and Gas) of the Pennsylvania Consolidated Statutes, consolidating the Oil and Gas Act modifying the definitions, well permitting process, well location restrictions including increasing horizontal set backs from water supply wells, reporting requirements, bonding, enforcement orders, penalties, civil penalties and, restricting local ordinances relating to oil and gas operations; and taxing the gas. However, the most significant element would in effect take away from the towns the ability to use zoning to exclude shale gas production in residential neighborhoods. According to Richard A. Ward, Township Manager Robinson Township, PA, this bill would turn the entire state of Pennsylvania into one large industrial zone. No zoning could exclude fracking wells and shale gas processing.

While it would undoubtedly be beneficial for the industry and regulators to have a single set of statewide regulations for siting and drilling hydraulic fracturing wells, watershed characteristics and geology vary across the state. Furthermore, the health and welfare of communities are best protected by local zoning. There has not been enough data gathered and studied to know horizontal distance to a drinking water well and aquifer will guarantee safety for the water supply throughout the various localities in the state and the 500 feet proposed under HB 1950 has no basis in scientific fact. The proposed legislation seems in a rush, to generate taxes and jobs. The gas will still be there if we take the time to understand fracking adequately to be able to release the gas from the shale formations without significant damage to our water resources and communities.

Drilling requires large amounts of water to create a circulating mud that cools the bit and carries the rock cuttings out of the borehole. After drilling, the shale formation is then stimulated by hydro fracking, where on average 2-5 million gallons of chemicals and water are pumped into the shale formation at 9,000 pounds per square inch and literally cracks the shale or breaks open existing cracks and allows the trapped natural gas to flow. For gas to flow out of the shale, all of the water not absorbed by the formation during fracking must be recovered and disposed of. Though less than 0.5% by volume, the proprietary chemicals represent 15,000 gallons in the waste water recovered from the typical hydro fracking job. The chemicals serve to increases the viscosity of the water to a gel-like consistency so that it can carry the propping agent (typically sand) into the fractures to hold them open so that the gas can flow.

Drawing large quantities of water in a limited period of time could impact water supplies. Determining the proper methods for the safe disposal of the large quantities of this fracking fluid that may also contain contaminants from the geological formation including brines, heavy metals, radionuclides and organic contaminants and monitoring the impact from this disposal must also be done. Geologists and engineers believe that in hydraulic fracturing the intervening layers of rock prevent a fissure from extending into the water table. The problems seen in drinking water wells near hydro fracking jobs typically occur when fracking fluid seeps into drinking water wells through improperly sealed or abandoned drilling wells (a large number of the problems have occurred in older coal bed areas). Proper well construction and abandonment standards to protect watersheds need to be developed and enforced. The water that is absorbed into rock formations may change the formations and the hydraulic balance in ways we do not understand.

Finally, care must be taken to avoid degradation of watersheds and streams from the industry itself as large quantities of heavy equipment and supplies are moved on rural (and potentially residential) roads and placed on concrete pads. The picture above from the U.S. Geological Survey, USGS, shows the amount of equipment involved in a hydro frack. The watersheds must be monitored. Sampling should take place before fracking and at regular intervals after a hydro frack job. We need to proceed slowly to make sure that we are doing it right and protecting our water resources. We have only a small margin for error.

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