HARRISBURG -- The Commonwealth Court of Pennsylvania ironed out July 22 a case between The Marcellus Shale Coalition and its requests against a number of environmental agencies.
The coalition called out the state's Department of Environmental Protection and Environmental Quality Board, requesting the pre-enforcement review of regulations concerning unconventional well operations. These are found in Title 25, Chapter 781 of the Pennsylvania Code and 25 Pa. Code Ch. 78a. It asked the court for summary relief for Count III (on-site processing regulation), Count V (site restoration regulation) and Count VI (spill remediation regulation) within its request for review in the nature of a complaint seeking declaratory and injunctive relief.
The agencies also asked the court for summary relief on Count II (area of review regulation), III, IV (well development impoundment and centralized impoundment regulations), V, VI and VII (waste reporting regulation).
The court first addressed the agencies’ request for relief on area of review regulation. The only concern the court needed to address was whether review regulations are part of the grant of authority given by the General Assembly to the agencies.
Although it partially agreed with the agencies on this matter, it added that ultimately, the agencies didn’t properly point out an authority that would validate the rules that levy things like inspection and evaluating obligations. They also didn’t display an evident right to relief as it relates to the coalition’s issues. Considering this, the court denied the agencies’ request for this.
Both sides filed a petition for Count III, on-site processing. The court denied the coalition’s request and granted the agencies’ request. It noted that declaratory relief only works to settle a severe disagreement, which isn’t present in this case.
It then denied the agencies’ application for well development and centralized impounds, ruling, “We agree with the coalition that the agencies fail to elucidate how those characteristics [of well development impounds], when compared with impoundments in other industries, warrant special treatment in the unconventional well regulations.” It added that both sides failed to explain the freshwater impoundments that are regulated in other unidentified fields.
As for both sides’ application for site restoration, the court denied the coalition’s request considering it didn’t provide any help in performing an inquiry.
Regarding the remediation applications, filed by the coalition and the agencies, both applications were denied as the court didn’t foresee a threat to the industry that would validate pre-enforcement intervention.
It also answered the agencies’ application for waste reporting granted it as it didn’t perceive any issues between the waste reporting regulation and the Report Act.
Judge Kevin Brobson wrote the opinion. President Judge Mary Hannah Leavitt and justices Renee Cohn Jubelirer, Patricia A. McCullough, Anne E. Covey, Christine Fizzano Cannon and Ellen Ceisler were also on the panel.