Marcellus Shale Industry Sues To Block Certain Provisions Of New DEP Drilling Rules

Philly.com reported Thursday the Marcellus Shale Coalition filed a legal challenge in Commonwealth Court asking that DEP be blocked from enforcing certain provisions in the Chapter 78a drilling regulations until it can be determined if DEP has the statutory authority to enact those provisions.  The regulations went into effect on October 8.

The challenges include:

-- A rule expanding the responsibility of drillers to avoid and protect threatened and endangered species, which the industry says goes beyond current state or federal law.

-- A rule that requires operators to identify and plug any nearby abandoned well, which drillers say would require them to obtain access to property they do not control, and would impose plugging liability for wells the operators do not own.

-- New rules governing centralized freshwater storage ponds, which the industry says are not authorized by Act 13.

--  Other rules governing site restoration, spill-reporting, and waste-disposal permitting.

“Today, the Marcellus Shale Coalition (MSC) filed suit on behalf of its members and their employees challenging the validity of a limited number of specific provisions contained in the final Chapter 78a rulemaking,” said David J. Spigelmyer, the president of the Coalition.  “This approach, which we had hoped we would not have to pursue, was necessary to assert the legal rights of our members directly impacted by final rulemaking’s provisions, which conflict with the Pennsylvania Department of Environmental Protection’s (DEP) statutory authority as well as Supreme Court precedent.

“Pennsylvania’s natural gas industry is governed by some of the nation’s most stringent laws and regulations, and our members continue to follow all relevant Pennsylvania and federal environmental statutes and regulations. Even with a record number of on-site inspections of unconventional oil and gas well sites, DEP’s own data illustrates that environmental compliance in the oil and gas industry has never been better.

“To be absolutely clear, the MSC and its members support fair, consistent, and clear regulation of the industry while protecting the environment and ensuring safety. However, certain provisions conflict with DEP’s legal authority granted by the Pennsylvania General Assembly while other provisions are vague and not clear how they will be implemented by the agency. In order to meet regulatory requirements, industry needs clear and unambiguous regulations that are consistent with the legislature’s intent. These shortcomings are immediately harmful to our industry because they affect our ability to conduct business and remain competitive.

“We continue to seek ways to work constructively with the DEP to address issues surrounding the implementation of the new regulations, but on a limited number of issues, it’s imperative that members seek legal redress to provide clarity and consistency.”
Click Here for a copy of the legal filing.
Legislative Changes

At the same time, the Marcellus Shale Coalition is pursuing similar changes to DEP’s regulations in the House and Senate when they return to voting session October 17.

The Senate passed Senate Bill 1229 (Vogel-R-Beaver) in July that would rollback similar  provisions raised in the lawsuit.  The bill is now in the House Rules Committee on a concurrence vote.

The House is expected to take up an amendment-- Amendment A09804--  to be offered by Rep. Jaret Gibbons (D-Beaver) to House Bill 1391 (Everett-R-Lycoming) to rollback similar provisions.

Rep. Gibbons is the Democratic Chair of the House Oil and Gas Caucus.  Click Here for more background.

Gov. Wolf: Bipartisan Agreement To Proceed In June

In June when Gov. Wolf signed legislation killing DEP’s Chapter 78 regulations covering conventional drilling operation, he said this about the Chapter 78a regulations covering Marcellus Shale drilling--

“I am pleased to have reached bi-partisan agreement with the legislature to proceed with the Chapter 78a unconventional oil and gas regulations, which will better protect the health of our environment and our residents,” said Gov. Wolf. “As part of the compromise I reached with the legislature, my administration will get to work immediately to redraft conventional regulations, and I have directed the Department of Environmental Protection to begin the process.”

NewsClips:

Marcellus Shale Industry Sues To Block New PA Drilling Rules
Gas Industry Files Suit Challenging New Drilling Rules In PA
AP: Gas Industry Challenges New Drilling Rules In PA