PA Environment Digest Blog: Senate, House Environmental Committees Disapprove DEP’s Conventional And Marcellus Shale Drilling Reg Updates

Tuesday, April 12, 2016

Senate, House Environmental Committees Disapprove DEP’s Conventional And Marcellus Shale Drilling Reg Updates

The Senate and House Environmental Resources and Energy Committees Tuesday voted largely along party lines to notify the Independent Regulatory Review Commission they disapprove DEP’s Chapter 78 (conventional) and 78a (unconventional, Marcellus Shale) drilling regulations updates.

The Committees acted based on similar concerns--

-- DEP violated a 2014 Fiscal Code amendment directing DEP to adopt separate regulations for conventional and unconventional oil and gas drilling. Sen. Scott Hutchinson (R-Venango) said at the Senate Committee meeting DEP started its rulemaking process without separate regulations as the 2014 law required. DEP started the regulatory process for the drilling regulations in August of 2013 before the Fiscal Code amendment was passed a year later. After the law was passed in 2014, during the Corbett Administration, DEP separated the regulations into a chapter for conventional and another chapter covering unconventional, Marcellus Shale drilling, and put the entire separated package out for another round of public review in April 2015.

In announcing the final regulation in January, DEP itemized the list of the major differences between the chapters covering conventional and unconventional drilling requirements.

A challenge to the regulations filed by the conventional well drillers exactly on this point was heard Thursday by Commonwealth Court which said it will rule on the issue before the April 21 meeting at which the Independent Regulatory Review Commission will consider the drilling regulations.

-- DEP did not supply a Regulatory Analysis Form during consideration of the regulations that analyzed the economic impact of the regulations, in particular, on small businesses like conventional oil and gas drillers. DEP posted a Regulatory Analysis Form with the original proposed regulations in August of 2013 and an updated form in January of 2016 when Chapter 78 and 78a were considered in their final form by the Environmental Quality Board. The Form includes the IRRC-required information on economic impacts and specifically on alternative strategies used to reduce the impact of the regulation on small businesses. Copies of the Form were also provided to the House and Senate Committees and to the IRRC at both the proposed and final stages of the rulemaking.

-- The forms and policies required to implement the law were not provided to the EQB, Committees and the IRRC as required by law. The final forms and policies could not be provided to the EQB as a practical matter before the EQB voted to finalized the language of the regulations on February 3, 2016. Since that action by the EQB in February, both the Conventional Oil and Gas Advisory Committee, covering the conventional industry, and the Oil and Gas Technical Advisory Committee, covering Marcellus Shale issues, met on March 30 and 31, respectively, to review the draft forms and guidelines.

-- DEP did not provide a compelling reason for the regulation and no new state law directed DEP to develop regulations covering the conventional drilling industry. Sen. Hutchinson made this point during the Senate Committee meeting. Rep. Jeff Pyle (R-Armstrong) said he was unaware Act 13 of 2012, which was used by DEP to justify the original proposed regulations in part, covered conventional oil and gas drilling. It was clear at least to Sen. Joseph Scarnati (R-Jefferson), President Pro Tempore of the Senate, Act 13 covered both conventional and unconventional wells because he said during a Senate Environmental Committee meeting in June 2014 the General Assembly “erred” in putting both kinds of wells in the same statute.

-- DEP based its regulations on portions of Act 13 that were struck down by the PA Supreme Court. Act 13 was passed in 2012. DEP presented the original version of the regulations to the EQB for action in August of 2013. DEP published the proposed regulations for public comment on December 14, 2013. The PA Supreme Court’s Robinson decision referred to in both Committees was issued on December 19, 2013. In an email to members of the EQB after the decision, Scott Perry, DEP Deputy Secretary for Oil and Gas Management, said most of the Act 13 decision dealt with the preemption of local zoning ordinances and added DEP promulgated the proposed drilling regulations based on multiple statutes, not just Act 13. The list of statutes included the Clean Streams Law which gives DEP broad authority to protect the Commonwealth’s water resources.

Click Here for a copy of the Senate Committee letter sent to the IRRC and DEP Secretary John Quigley as Chair of the Environmental Quality Board.
A copy of the House Committee letter is not yet available.
Ironically, both the House and Senate also passed resolutions this week urging all Pennsylvania’s to observe Earth Day on April 22-- Senate Resolution 348 (Hughes-D- Philadelphia) and House Resolution 771 (Murt-R-Adams).

Rep. John Maher (R-Allegheny) serves as Majority Chair of the House Environmental Committee and can be contacted by sending email to: jmaher@pahousegop.com. Rep. Greg Vitali (D-Delaware) serves as Minority Chair and can be contacted by sending email to: gvitali@pahouse.net.