The Marcellus Shale Coalition late Wednesday file an action in Commonwealth Court to put on hold an automatic stay the Department of Environmental Protection received Tuesday when it filed an appeal involving the MSC’s challenge to certain sections of DEP’s Chapter 78a drilling regulations.
Tuesday DEP filed an appeal of a Commonwealth Court’s temporary stay of DEP’s implementation of the section of the regulations being challenged by the MSC.
On November 8, Commonwealth Court Judge P. Kevin Brobson put a temporary stay on sections of the new rules until the court can consider the merits of an industry group’s challenge to the month-old regulations.
The judge sided with the Marcellus Shale Coalition and stopped implementation of narrow sections of the rules related to public resource protections, large fluid holding ponds, well site restoration standards and monitoring for underground hazards around fracking operations.
He found that some aspects of the rules might exceed regulators’ authority to impose them and that the costs of complying with those provisions now would cause the industry irreparable harm if the sections are later found to be invalid.
“Today DEP has filed an appeal of the Commonwealth Court decision to enjoin sections of the Chapter 78A unconventional drilling regulations to the Pennsylvania Supreme Court,” said Acting DEP Secretary Patrick McDonnell. “By the decision issued on November 8, the Commonwealth Court temporarily stayed limited provisions contained in the new regulations. These regulations establish basic protections for areas that could be impacted by unconventional drilling – places like schools, playgrounds, and other public resources. That ruling resulted in a narrow temporary stay, which DEP is now appealing.
“These commonsense regulations were the result of five years of public participation, including dozens of meetings with natural gas industry leaders and trade groups, as well as nearly 25,000 Pennsylvanians who made their voices heard by providing public comments,” said McDonnell.
DEP’s appeal alleges an error of law on the part of the Court in issuing the temporary stay because, among other things, the Marcellus Shale Coalition presented no evidence to the Court about specific harm it would suffer if the disputed regulations would be implemented.
As a matter of routine procedure, DEP was granted an automatic stay of Brobson’s November 8 action until DEP’s appeal could be heard.
The Court has not set a hearing date on the merits of the case.
The Marcellus Shale Coalition filed a lawsuit against DEP’s implementation of its Chapter 78a regulations that apply to Marcellus Shale natural gas drilling operations on October. 13.
Among the allegations by the MSC were--
-- Expanding the responsibility of drillers to avoid and protect threatened and endangered species, which the industry says goes beyond current state or federal law;
-- Requiring 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; and-- Other rules governing site restoration, spill-reporting, and waste-disposal permitting.