Friday, December 9, 2016

State Court Reimposes Stay On DEP Enforcement Of Certain Sections Of Drilling Regs

Commonwealth Court Judge P. Kevin Brobson Friday granted a motion by the Marcellus Shale Coalition to reimpose the temporary stay he imposed November 8 on enforcement of certain sections of DEP’s Chapter 78a drilling regulations challenged by the MSC.
This Court action follows an appeal of a Commonwealth Court’s November 8 temporary stay by DEP on Tuesday that resulted in an automatic stay of the November 8 the Court’s action Friday reimposed.
The Court has not set a hearing date on the merits of the case.
Following all that?
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.
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.
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