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Pennsylvania DEP Appeals Court Ruling to Stay Some New Shale Regs

The Pennsylvania Department of Environmental Protection (DEP) has appealed the state Commonwealth Court's decision last month to temporarily stay parts of the agency's regulatory overhaul for shale producers so it may consider a lawsuit filed by the industry.

The Marcellus Shale Coalition (MSC) filed its lawsuit in October, seeking declaratory judgment that sections of the regulatory package are unlawful. It also filed an application for summary relief and expedited review, asking the court to stay sections it is challenging until the legality of the provisions are decided. In an order granting preliminary injunctive relief last month, Judge P. Kevin Brobson enjoined the DEP from implementing some of the regulations, finding that they could cause irreparable harm to MSC members and may exceed the agency's authority.

"These regulations establish basic protections for areas that could be impacted by unconventional drilling -- places like schools, playgrounds and other public resources," said Acting DEP Secretary Patrick McDonnell on Tuesday after the appeal was filed. "These commonsense regulations were the result of five years of public participation, including dozens of meetings with natural gas industry leaders and trade groups, as well as nearly 25,000 Pennsylvanians who made their voices heard by providing public comments."

In its appeal, the DEP questioned whether the court erred in issuing the stay because some of the legal standards for it might not have been met. During a hearing in October on its request to stay the sections, the MSC argued against them but did not call any witnesses. The organization has argued that the rules being challenged are unlawful, burdensome and costly.

DEP began drafting the regulations about five years ago and were supposed to take effect Oct. 8. However, less than a week after they were to take effect, the MSC filed its lawsuit. The new rules are designed to reduce impacts on public resources, such as schools and parks, help prevent spills, strengthen waste management and require stronger well site restoration.

The court, which has not scheduled when it will hear the merits of the lawsuit, stayed a section of the rules in its entirety that would require more stringent well site restoration standards. It also stayed one to require existing impoundments be closed or upgraded within 12 months.

Also enjoined is part of the public resources protection provision that would require operators to conduct a review of the impacts drilling would have on parks, forests, rivers, national landmarks, schools and drinking water protection areas. The court stayed those regulations for schools, playgrounds and species of special concern. It also enjoined rules that would require operators to monitor and remediate damage to wells owned by other companies or those without an owner.

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