The lawsuit alleges DEP and the Environmental Quality Board illegally promulgated the regulation under the emergency provisions of the state Commonwealth Document Law and did not comply with Act 52 of 2016 which requires the agencies to adopt separate and independent rulemakings setting requirements for conventional oil and gas operations.
The groups included the PA Independent Oil and Gas Association, PA Independent Petroleum Producers and the PA Grade Crude Oil Coalition.
Events Prompting Lawsuit
On November 30, the Environmental Quality Board voted 16 to 2 to approve the emergency regulation setting VOC/methane emission limits for conventional oil and gas facilities.
The November 30 meeting was made necessary by a letter sent by Republicans on the House Environmental Resources and Energy Committee to the IRRC on November 14 disapproving the regulation.
The disapproval blocked consideration of a final-omitted regulation covering conventional oil and gas facilities until after a December 16 U.S. Environmental Protection Agency deadline to finalize the regulation, so DEP had to move to the emergency rulemaking procedure.
Failure to meet the deadline to submit both the conventional and unconventional oil and gas facility regulations means Pennsylvania is at risk of losing nearly $1 billion of federal transportation funding.
Conventional oil and gas facilities account for 80 percent of methane emissions from the oil and gas industry in Pennsylvania because they have done little or nothing to control them.
The unconventional shale gas industry accounts for 20 percent because they have implemented some controls.
The provisions in the regulation are identical to a final-omitted regulation applying to conventional oil and gas facilities approved by the Independent Regulatory Review Commission by a vote of 4 to 1 on November 17. Read more here.
The IRRC had earlier expressed concern there were not separate final regulations for unconventional and conventional oil and gas facilities as required by a 2016 state law (Act 52).
DEP temporarily withdrew the final regulation in May before the IRRC voted and divided the regulation-- with the same VOC/methane limits as required by EPA applying to both conventional and unconventional oil and gas facilities-- and resubmitted the unconventional final regulation to the IRRC in July, which they approved. Read more here.
The final regulation covering unconventional oil and gas operations will be published in the December 10 PA Bulletin, according to DEP.
With respect to the emergency conventional rulemaking, the Regulatory Review Act allows an agency to immediately implement a final-form regulation when the Governor or Attorney General certifies that it is necessary to respond to an emergency.
The Independent Regulatory Review Commission and House and Senate Committee still have an opportunity to review the regulation, but the regulation is allowed to take effect prior to the completion of the process. Read more here.
On December 2, the Department of Environmental Protection announced the emergency regulation is final and effective as of December 2, 2022. Read more here.
Allegations
The conventional industry alleged DEP did not meet with the DCED Crude [Oil] Development Advisory Council as required by Act 52 of 2016 to solicit their input in the development of the proposed combined rulemaking or the separate rulemakings promulgated by the EQB and approved by the IRRC.
The industry also said a representative of DEP’s Oil and Gas Management Program told members of the CDAC in January of 2019 that it was his understanding the regulation would not apply to them since conventional oil and gas wells typically do not cross the thresholds for regulating emissions under the rule.
The lawsuit said the industry groups commented to the IRRC and others during the entire rulemaking process that the requirements of Act 52 of 2016 were not being met.
The lawsuit also said DEP and the Environmental Quality Board did not justify their statement in the emergency certification of the regulation that they found it impracticable, unnecessary and contrary to the public interest to provide the industry and public notice and opportunity to comment on the regulation under the Commonwealth Documents Law.
The industry is asking that DEP be prevented from enforcing the regulation on the conventional industry until the notice and comment provisions of the Commonwealth Documents Law and Act 52 of 2016 are complied with.
Click Here for a copy of the lawsuit.
[Note: The documents DEP submitted to the Environmental Quality Board-- in particular the Preamble and Emergency Certification-- outline in detail the history of the regulation development, opportunities for comment by the CDAC, the Oil and Gas Technical Advisory Board, other advisory groups and the public and industry groups and the justification for the emergency declaration. Read more here.]
NewsClip:
-- Marcellus Drilling News: 3 Groups Sue DEP, EQB To Block New VOC Conventional Regulation
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[Posted: December 6, 2022] PA Environment Digest
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