The purpose of the rulemaking is to modify and update existing requirements related to surface activities associated with the development of conventional and unconventional oil and gas wells.

The Pennsylvania Department of Environmental Protection’s (DEP’s) rulemaking regarding surface activities for oil and gas wells — Environmental Protection Performance Standards at Oil and Gas Well Sites (Chapter 78 and 78a)1 — is now one step closer to becoming law. On April 21, 2016, the Pennsylvania Independent Regulatory Review Commission (IRRC) voted 3–2 to approve the final-form regulation, determining that its promulgation is in the public interest.2

The purpose of the rulemaking, which has been developed and repeatedly revised over the past five years, is to modify and update existing requirements related to surface activities associated with the development of conventional and unconventional oil and gas wells. Although Act 13 of 2012 serves as the authorizing statute for some of the rulemaking, 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.

DEP Secretary John Quigley issued the following statement concerning IRRC’s approval:

I am pleased that IRRC moved these important regulatory updates closer to the finish line. The Chapter 78 and 78A regulations have been written with an unprecedented amount of public participation, including from the conventional and unconventional drilling industries. This final regulatory package will improve protection of water resources, add public resources considerations, protect public health and safety, address landowner concerns, enhance transparency, and improve data management.

The Senate and House Environmental Resources and Energy Committees now have 14 calendar days from April 21 to meet and possibly advance a resolution of disapproval to halt promulgation of the regulation. The Senate and House would have 30 calendar days or 10 voting session days, whichever is longer, from the date the resolution is reported out of the committees to pass the resolution and present it to the governor. The governor can either sign or veto the resolution. His veto could be overridden by both the Senate and House by a two-thirds vote. If no action is taken by the legislature or a resolution fails, the regulation can take effect following review by the Office of Attorney General.

Earlier this month, both the Senate and House Environmental Resources and Energy Committees voted to reject the final-form rulemaking, asserting that (1) DEP circumvented various requirements of the Regulatory Review Act, including failing to sufficiently analyze financial impacts on small businesses, such as many conventional oil and gas drillers; (2) DEP should have developed separate rulemakings for conventional and unconventional operations; (3) technical deficiencies exist in the rulemaking; and (4) the rulemaking violates the Pennsylvania Supreme Court’s decision in Robinson Township v. Commonwealth, 83 A.3d 901 (Pa. 2013).