216 A.3d 448
Pa. Commw. Ct.2019Background
- The Marcellus Shale Coalition (Coalition) brought a pre-enforcement challenge to Pennsylvania’s Unconventional Well Regulations (25 Pa. Code Ch. 78a) after those rules took effect, seeking declaratory relief on multiple provisions (Counts II–VII).
- The Department of Environmental Protection (Department) and Environmental Quality Board (EQB) (collectively, Agencies) cross-moved for partial summary relief; prior interlocutory rulings (including appeals to the PA Supreme Court) affected preliminary injunctive relief for several counts.
- Key disputed regulatory subjects: area-of-review surveys and monitoring around wells; on-site residual waste processing; well-development and centralized impoundment standards; site restoration timing/standards; spill remediation procedures; and waste reporting frequency.
- The legal framework: challenges assessed under Tire Jockey (agency rule review: authority, procedure, reasonableness), Declaratory Judgments Act (ripeness/pre-enforcement review), Regulatory Review Act and Commonwealth Documents Law (procedural compliance), and conflict/vagueness doctrines.
- The court resolved the cross-motions in part: it upheld many agency authorities but struck/limited certain regulatory provisions as exceeding statutory authority (notably, requiring post-drilling restoration to "approximate original contours" within the 9-month statutory period).
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Authority for area-of-review survey and reporting (25 Pa. Code §78a.52a(a),(b),(c)(1)-(2),(4)-(6),(d),(e)) | No statutory basis for the new AOR duties; overbroad delegation and potential trespass/plugging obligations | Dept. has authority under The Clean Streams Law and Act 13 to prevent water pollution and require information/case-by-case safeguards | Court granted Agencies partial relief: these AOR survey/reporting provisions are within agency authority; but provisions imposing monitoring/entry/plugging obligations for inaccessible third-party wells were not shown to have statutory basis and were not upheld |
| On-site residual waste processing (§78a.58(f)) | Conflicts with Act 13 §3273.1 which exempts well-site on-site processing from separate SWMA permits/bonding | §78a.58(f) merely restates Act 13 and does not impose new separate SWMA permit/bonding requirements | Court denied Coalition relief and granted Agencies’ cross-application — no live conflict for pre-enforcement review; both sides treat the provision similarly |
| Well-development impoundments (§78a.59b) and constitutionality (special law) | Act 13 does not authorize off-well-site freshwater impoundment rules; regulation discriminates vs other industries (special/local law) | Agencies cite The Clean Streams Law, Act 13, and the Dam Safety & Encroachments Act to regulate impoundments and protect waters/public safety | Court granted Agencies summary relief on authority (multiple statutes provide authority). On the special-law/equal-protection claim, court denied Agencies’ summary disposition (insufficient record/comparison to resolve at summary stage) |
| Centralized impoundments (§78a.59c) – permit/closure under Residual Waste Rules | SWMA does not require permits for storage; cannot reclassify stored residual waste to require SWMA permitting | The Clean Streams Law authorizes permitting for activities creating a danger of water pollution; Chapter 299 and Clean Streams Law support permitting/closure requirements | Court granted Agencies summary relief: Agencies have authority (via Clean Streams Law/Chap. 299) to require permitting/closure for centralized impoundments |
| Site restoration timing & standard (§78a.65(b)) — requiring post-drilling restoration to Approximate Original Contours (AOC) within 9 months | Statute (Act 13 §3216) requires removal of supplies not needed for production and allows AOC standard only when operator seeks extension; rule imposes AOC in all cases within 9 months, exceeding statute | Agencies argue §78a.65 implements §3216 and clarifies terms; regulation aligns with restoration goals and E&S/PCSM rules | Court held §78a.65(b) invalid to the extent it mandates AOC within the statutory 9-month post-drilling period; otherwise many parts of §78a.65 (including list of areas "necessary to safely operate") upheld; procedural challenges (Regulatory Review Act and Commonwealth Documents Law) were rejected |
| Spill remediation (§78a.66(c)) — use of Act 2 standards and procedural timing | No statutory authority to compel Act 2 procedures pre-enforcement; constitutional/special-law complaint; RAF lacked cost estimates | Agencies claim authority to set remediation/reporting procedures and that RAF complied | Court declined to adjudicate pre-enforcement: held remedy not ripe/administrative exhaustion appropriate absent an actual spill or imminent threat |
| Waste reporting frequency (§78a.121(b)) — monthly waste reporting vs biennial residual waste report and Report Act | Conflicts with residual waste biennial reporting (25 Pa. Code §287.52) and the Unconventional Well Report Act (allegedly left waste reporting unchanged) | SWMA §608(2) authorizes Department to require records/reports; later, more specific unconventional-well rule (78a.121(b)) can require monthly reporting and supersedes general/broader earlier rule | Court granted Agencies summary relief: Department has authority under SWMA to require monthly waste reporting for unconventional wells; no conflict with Report Act (which addresses production, not waste) |
Key Cases Cited
- Borough of Pottstown v. Pa. Mun. Ret. Bd., 712 A.2d 741 (Pa. 1998) (distinguishes legislative vs interpretive rules; interpretive rules must track the statute)
- Tire Jockey Serv., Inc. v. Dep’t of Envtl. Res., 915 A.2d 1165 (Pa. 2007) (three-part test for validity of agency legislative rules: authority, procedure, reasonableness)
- Slippery Rock Area Sch. Dist. v. Unemployment Comp. Bd. of Review, 983 A.2d 1231 (Pa. 2009) (statutory-consistency requirement for regulations; construction of delegation)
- Marcellus Shale Coal. v. Dep’t of Envtl. Prot., 185 A.3d 985 (Pa. 2018) (Supreme Court decision addressing preliminary injunctions and limits on agency authority re: entry/access)
- EQT Prod. Co. v. Dep’t of Envtl. Prot., 130 A.3d 752 (Pa. 2015) (permitting pre-enforcement review when agency action creates direct, immediate, substantial liability)
- Commonwealth v. Harmer Coal Co., 306 A.2d 308 (Pa. 1973) (agency responsibility for treating pollution from contiguous or related operations)