Houston — In a ruling in a lawsuit brought by the Marcellus Shale Coalition, a Pennsylvania judge on Tuesday ordered the temporary stay of several key provisions of a set of natural gas drilling regulations recently promulgated by the state's Department of Environmental Protection.
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In an order handed down in the Commonwealth Court of Pennsylvania, Judge Kevin Brobson issued a preliminary injunction blocking the state from enforcing provisions of the rules pertaining to public resources, well permit reviews, wastewater impoundment and site restoration.
However, the ruling denied the MSC's request for an injunction to block other provisions of the regulations pertaining to onsite processing, the remediation of spills and waste reporting.
The MSC filed the suit in October to block the implementation of seven provisions of Chapter 78a of the Pennsylvania Code. The rules, which regulate many aspects of unconventional gas drilling, took effect October 8.
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"We're 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 fully decided in the courts," MSC President David Spigelmyer said in a statement.
"All seven provisions that the MSC has challenged conflict with DEP's statutory authority granted by the General Assembly as well as Supreme Court precedent and bring immediate harm to our industry, which is expected to cost Pennsylvania job creators an initial ... $40 million to $70 million and up to $16 million annually while realizing little discernible environmental benefit," he said.
DEP spokeswoman Julie Lalo said the department would answer the judge's ruling in court filings next week.
"This ruling results in a narrow temporary stay," Lalo said in a statement.
"The regulations were crafted in accordance with Pennsylvania law, and represent the result of tens of thousands of comments from residents, industry and other stakeholders," she said.
"DEP will continue to push for protections for drinking water and schoolchildren and ensure areas impacted by drilling activity are restored," she added.
In court filings, attorneys for the MSC contended the challenged provisions would "inflict immediate, substantial and irreparable harm to MSC members in four ways."
The provisions would prevent producers from completing wells in the process of being drilled, thereby threatening the loss of valuable property rights; provided no accommodation regarding permitting procedures; would force operators to stop and restart previously approved waste-handling and remediation activities; and had no transition period for placing significant new obligations on the industry.
In its filings, the MSC argued the DEP did not have the authority to protect what it designated as "public resources," such as school playgrounds, under the Pennsylvania Oil and Gas Act.
In addition, the plaintiffs' attorneys challenged the right of the DEP to establish an area of review, which required operators to identify all active, inactive and plugged and abandoned wells within 1,000 feet of a well bore.
The court found the MSC had legal standing to challenge these provisions, as well as rules that set new standards for well development impoundments, requiring that operators construct the impoundments of impervious liner and be monitored by an individual or enclosed by a fence.
Brobson also found as persuasive an MSC argument that a regulation regarding site restoration of well pads imposed requirements in excess of the state's Clean Streams Law.
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