Conventional Oil & Gas Drillers Attempt To Delay Publication Of Final Marcellus Drilling Regs

The PA Independent Oil and Gas Association, representing conventional well operators, Friday delivered a letter to the Joint House Senate Committee on Documents objecting to the publication of DEP’s final Chapter 78a Marcellus Shale drilling regulations, now scheduled for the October 8 PA Bulletin.

In its September 30 letter, PIOGA said the regulations should not be published because the PA Supreme Court Wednesday, in the Robinson II case, restated the Court’s position in the Robinson I ruling that Sections 3215(c) and (e) of Act 13 relating to the protection of public resources during the well permitting process are enjoined from being enforced.

The final Chapter 78a drilling regulations retain the provisions related to protecting public resources, such as, “but not limited to” publicly owned parks, playgrounds, scenic rivers, habitats of rare and endangered species and historical and archaeological sites.

The Office of Attorney General approved the Chapter 78a regulations for form and legality, with some changes, in spite of a July 22 letter from PIOGA objecting to protecting public resources based on Robinson I.

On August 18 the Joint House Senate Committee on Documents unanimously approved the final publication of Chapter 78a in the PA Bulletin, notwithstanding the objections of PIOGA in the July 22 letter and the changes made by the Office of Attorney General.

PIOGA noted in its September 30 Commonwealth Court ruled against a declaratory judgment action against DEP on September 1 rejecting PIOGA’s position the public resource sections were invalid and enjoined.  PIOGA filed an appeal of this decision September 29.

PIOGA wants the public resource provisions removed from the Chapter 78a regulation.  The September 30 letter did not say what would happen if the Joint Committee on Documents refused the request, but there is no doubt more legal action is in the future on this issue.

Asked for comment on the PIOGA letter, Vincent DeLiberator, Chair of the Joint Committee on Documents, said the Committee is reviewing the letter.  Neil Shader, DEP’s Press Secretary said the agency does not comment on current litigation.

DEP’s final Chapter 78 regulations covering conventional oil and gas drilling operations, represented by PIOGA ,were killed in June when Gov. Wolf signed legislation into law that became Act 52.  DEP is now starting that regulatory process over.
In April PIOGA lost an appeal of DEP’s Chapter 78 & 78a regulations to the Commonwealth Court and later the PA Supreme Court saying they violated a 2014 state law on separating the regulations into conventional and unconventional (Marcellus Shale) provisions. Commonwealth Court said the issue was not legally "ripe."

On another front, now pending before the House are potentially two actions which could roll back parts of DEP’s Chapter 78a Marcellus regulations, even if this effort by PIOGA is not successful.

When it returns October 17, 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 well site restoration, waste disposal reporting and freshwater construction standards now in DEP’s Chapter 78a Marcellus Shale drilling regulations.

Also pending in the House Rules Committee is Senate Bill 1229 (Vogel-R-Beaver) that contains similar provisions.

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