American Oil and Gas Reporter - December 2016 - 16

IndustryDigest
Pennsylvania Court
Enjoins Portions Of
Chapter 78a Rules
PITTSBURGH-The Pennsylvania
Commonwealth Court on Nov. 8
enjoined the Department of
Environmental Protection from
enforcing several provisions of its
Chapter 78a regulations for surface
activities associated with
unconventional wells.
The Marcellus Shale Coalition
challenged the provisions in a lawsuit
filed Oct. 13, five days after the rules
were published in the Pennsylvania
Bulletin.
"We are pleased with the court's
decision to preliminarily stay unlawful,
burdensome, and costly portions of the
challenged regulations from going into
effect until this matter can be decided
fully in the courts," responds MSC
President David Spigelmyer.
MSC challenged seven specific
sections of the Chapter 78a rules, and
MSC Vice President of

Communications Erica Clayton Wright
reports the Commonwealth Court's
ruling enjoined two of the sections
entirely and partially enjoined two
others. Enjoined entirely, she says,
were:
* Sections 78a.59(a) and (c)
requirements for impoundment
embankments and closing centralized
impoundments; and
* Section 78a.65 (d) site restoration
standards.
Wright says MSC also challenged
Section 78a.15, which codifies the
DEP's Pennsylvania Natural Diversity
Index (PNDI) policy by requiring
operators applying for permits to drill to
notify entities such as schools,
municipalities, and owners of
playgrounds or water supplies. She says
the court stayed notice requirements
applying to schools or playgrounds and
"special concern species," but not other
"public resource" owners.
DEP's PNDI policy also is being
challenged before the Pennsylvania
Supreme Court by the Pennsylvania

Independent Oil & Gas Association.
PIOGA filed a notice of appeal to the
high court on Sept. 29, asking it to
review the Commonwealth Court's
Sept. 1 order denying the association's
challenge of DEP's continued
enforcement of its PNDI policy under
provisions of Act 13 that PIOGA
contends were invalidated by the
Supreme Court's December 2013
Robinson Township v. Commonwealth
decision (AOGR, November 2016, pg.
105).
Wright adds that the Commonwealth
Court also partially enjoined Chapter
78a's "area of review" (Section 78a.52)
provision, which requires operators to
identify all wellbores located within
1,000 feet of a new horizontal or
vertical wellbore. "The area of review is
enjoined as to the monitoring and
remediation obligation regarding wells
identified in the review and/or operated
by others," she reports. "The obligation
to plug abandoned and orphan wells
altered by hydraulic fracturing appears
to be enjoined, unless the wells are

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American Oil and Gas Reporter - December 2016

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