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Pennsylvania IRRC Approves Chapter 78/78a Regulations

On April 21, 2016, the Independent Regulatory Review Commission (IRRC) approved the Environmental Quality Board’s Chapter 78 (conventional wells) and Chapter 78a (unconventional wells) regulations by a vote of 3-2.  Vice Chairman Mizner, in making a motion to disapprove the regulation, noted that the Department of Environmental Protection did not:

  1. provide enough information on the cost of the regulations;
  2. meet its burden to show that the revisions as applied to conventional operations are necessary;
  3. conduct the required flexibility analysis for small businesses;
  4. adequately consult with the Conventional Oil and Gas Advisory Committee or the Oil and Gas Technical Advisory Board; or
  5. develop a consensus on the regulations with industry.

The motion to disapprove the regulation failed by a vote of 3-2, followed by the motion to approve the regulation.  Commissioners voting to approve the regulation noted that consensus on the regulation was likely impossible to achieve but that the Department had acted earnestly to develop necessary regulations for an evolving industry and that current regulations are not adequate.

Both the House and Senate Environmental Resources and Energy Committees previously voted to disapprove the regulations.  IRRC’s approval begins a 14-day window in which the legislative committees may report to the House or Senate a concurrent resolution barring the revisions.  If a resolution adopted by the General Assembly is not vetoed, or if the Governor’s veto is overridden, the Environmental Quality Board is barred from promulgating the final regulations.  The Attorney General will conduct a review of the regulation as to form and legality before the regulation may be published in the Pennsylvania Bulletin as final.  Publication of the rule as final could occur in June or July of 2016, becoming effective immediately on the day of publication.