DEP Will Continue Chapter 78 Oil & Gas Regulation Update After Court Opinion

The Department of Environmental Protection Monday said it would continue with the Chapter 78 oil and gas regulation update now out for public review in response to questions about how the rulemaking will be affected by last Thursday’s PA Supreme Court opinion on Act 13.

Scott Perry, DEP Deputy Secretary for Oil and Gas Management, told members of the Environmental Quality Board in an email, while DEP is still evaluating the Court opinion, “the majority of the Supreme Court’s opinion focused on the preemption of municipal zoning ordinances in Title 33 of Act 13.  This issue is not a component of the proposed regulations.

The full text of the email follows--

“Although DEP is still reviewing the recent Supreme Court decision, it is apparent that the ruling affects very little of the proposed revisions to 25 Pa. Code Chapter 78 Subchapter C.  The majority of the Supreme Court’s opinion focused on the preemption of municipal zoning ordinances in Title 33 of Act 13.  This issue is not a component of the proposed regulations.  

“For our purposes, the only component of the regulation affected by the ruling pertains to the Department’s authority to issue waivers.  The proposed regulation cross references this authority (58 Pa. C.S  § 3215(b)) in three locations.  This cross referencing can easily be addressed before finalizing the regulation.

“It is important to note that much of the proposed regulation is being promulgated pursuant to statutes other than Act 13.  For example, aspects of the regulation pertaining to pre-hydraulic fracturing review, centralized wastewater and freshwater impoundments, rock pits, brine spreading and spill reporting and clean-up are promulgated pursuant to the Clean Streams Law, Solid Waste Management Act, Act 2 and the Dam Safety and Encroachments Act.  

“As such, the vast majority of Subchapter C is not implicated by this decision or even future decisions on the constitutionality of Act 13.  

“Finally, I would note that both Title 32 of Act 13 and the proposed regulation approved by the Board substantially improve the regulatory environment in which the oil and gas industry operates.  

“Title 32 of Act 13 and these regulations are, in my opinion, a model for other states and countries to follow if their goal is to ensure long term protection of public health and the environment while allowing for oil and gas development within their jurisdictions.

“I very much appreciate your concerns with the potential effect of the Supreme Court’s ruling on this regulation but given the very limited scope of the ruling on Subchapter C, DEP feels that it is important to continue with the rulemaking process in order to realize improved environmental performance in Pennsylvania.”

For more information on when and how to submit comments on Chapter 78 proposed regulation changes, visit DEP’s Oil and Gas Surface Regulations webpage.

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