A letter from the Pennsylvania Independent Oil and Gas Association (PIOGA) to the PA Joint House Senate Committee on Documents asking them to NOT publish the Dept. of Environmental Protection's (DEP) final Chapter 78a Marcellus Drilling regulations citing the PA Supreme Court's recent ruling on Act 13 as the basis.

1. Pennsylvania: The Keystone to America’s Energy Future
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September 30, 2016
Via email
Vincent C. DeLiberato, Jr, Chairperson
Commonwealth Joint Committee on Documents
Director, Legislative Reference Bureau
Robert A. Mulle, First Deputy Attorney General
Director, Legal Review Section
Pennsylvania Office of Attorney General
15th Floor, Strawberry Square
Harrisburg, PA 17120
RE: Final-Form Regulation
25 Pa Code Chapter 78a, Oil and Gas Wells, Subchapter C, Environmental
Protection Performance Standards
Dear Chairperson DeLiberato and Mr. Mulle:
On behalf of the Pennsylvania Independent Oil & Gas Association (PIOGA), I am
writing to object to the publishing in the Pennsylvania Bulletin of the final-form
regulation, approved by the Attorney General and the Joint Committee on Documents,
promulgating new Chapter 78a of Title 25 of the Pennsylvania Code referenced above
(Chapter 78a Rulemaking). PIOGA’s objection is based upon the Pennsylvania Supreme
Court’s September 28, 2016, decision1
restating the clear dictate in Robinson Twp. v.
Commonwealth, 83 A.3d 901 (Pa. 2013) (Robinson II) that Sections 3215(c) and (e) of
Act 13 are enjoined because they “are part of the Section 3215(b) decisional process.”2
1
Robinson Twp. v. Commonwealth, Nos. 104, 105 MAP 2014 (Robinson IV). The majority
opinion is available here: http://www.pacourts.us/assets/opinions/Supreme/out/J-34A-
2016mo%20-%2010282684312019871.pdf?cb=1. Justice Saylor’s concurring and dissenting
opinion is available here: http://www.pacourts.us/assets/opinions/Supreme/out/J-34A-
2016cdo%20-%2010282684312019780.pdf?cb=1. Justice Baer’s concurring and dissenting
opinion is available here: http://www.pacourts.us/assets/opinions/Supreme/out/J-34A-
2016cdo1%20-%2010282684312019934.pdf?cb=1. The portions of the majority opinion relied
upon by PIOGA were adopted 6-0.
2
Robinson II, 83 A.3d at 999; Robinson IV, slip op. at 5, n.3, 18, 41-43.

2. {B1701659.4} 2
In its July 22, 2016 letter (copy attached) at pp. 11-13, PIOGA objected to the
Attorney General’s approval of the Chapter 78a Rulemaking on the basis of the Robinson
II injunction. PIOGA asserted that the following provisions of these regulations are not
statutorily authorized because of the Supreme Court’s injunction:
●Section 78a.1 definitions – “Common areas of a school’s property”, “Other critical
communities”, “Pennsylvania Natural Diversity Inventory—PNDI”, “PNDI receipt”,
“Playground”, “Public resource agency” and “Wellhead protection area”.
●Section 78a.15(f)
●Section 78a.15(g)
The Attorney General apparently disagreed, as the Chapter 78a Rulemaking subsequently
submitted to and approved by the Joint Committee on Documents retained these
provisions, as well as the preamble relying upon Section 3215(e) as authority for the
rulemaking. We understand that the final-form Chapter 78a Rulemaking approved to be
published in the Pennsylvania Bulletin and become effective also retains these provisions.
This letter is prompted and necessitated by the authoritative pronouncements that our
Supreme Court made two days ago that Sections 3215(c) and (e) are invalid, and their
application and enforcement enjoined. In light of these pronouncements in Robinson IV,
it is clear that the neither the Pennsylvania Department of Environmental Protection
(DEP) nor the Environmental Quality Board (EQB) has rulemaking authority pursuant to
Section 3215(e) of Act 13 and that the provisions identified above lack statutory authority
and therefore cannot lawfully be published as final regulations with the force and effect
of law.
In Robinson II the Supreme Court held Section 3215(b)(4) – “a key part of the Section
3215(b) scheme”3
– to be unconstitutional. As explained in Robinson IV, the Court in
Robinson II concluded that:
[T]he General Assembly did not intend for the setback provisions in the
remaining parts of Section 3215(b) to operate without the oil and gas
industry having the ability to seek waivers. Robinson II, 83 A.3d at 999.
Thus, a majority of the Court ruled that those provisions were not
severable. Further, the majority deemed Sections 3215(c), which required
the DEP in making a well permit decision to consider its impact on public
resources such as public parks and historical landmarks, etc., and 3215(e),
which mandated that the Environmental Hearing Board develop regulations
governing the DEP’s consideration of public resources during the
3
Id. at 999.

3. {B1701659.4} 3
permitting process, to be part of the overall decisional process established
by Section 3215(b) and “incapable of execution in accordance with the
legislative intent;” thus the majority enjoined them as well. Id. at 999. In his
concurring opinion, Justice Baer opined that he would have, additionally,
enjoined 3215(a) because he deemed it “incapable of execution,” based on
his view that it was “inextricably linked” to Section 3215(b)(4) which
required the DEP to grant waivers to the setback requirements set forth in
Section 3215(a). Id. at 1009, n.6 (Baer J., concurring).4
As stated in PIOGA’s July 22nd
letter (p.12), PIOGA filed a declaratory judgment
action against DEP to enforce the Supreme Court’s injunction of Sections 3215(c) and
(e).5
On September 1, 2016, the Commonwealth Court ruled against PIOGA’s position
that these Sections were invalid and enjoined.6
In view of the Supreme Court’s
pronouncements in Robinson IV, including its statement that “after our Court’s decision
in Robinson II, only Section 3215(a), which prescribes setback distances for oil and gas
wells from buildings and water wells, remains in effect,”7
it is clear that the
Commonwealth Court’s September 1st
ruling is wrong.8
And based on this unambiguous
statement by the Court that Section 3215(e) is no longer valid and is enjoined, the
Chapter 78a Rulemaking provisions identified above that rely upon Sections 3215(c) and
(e) are invalid because Robinson II removed, as Robinson IV has confirmed, the statutory
authority upon which these provisions are based.
DEP has stated publicly that it expects the final-form Chapter 78a Rulemaking to be
published in the Pennsylvania Bulletin and become effective next week, Saturday,
October 8, 2016. Publication would improperly give the force and effect of law to
regulatory provisions that are based on invalid and enjoined statutory authorization.
Respectfully, your offices should take whatever measures are necessary to prevent
publication of the Chapter 78a Rulemaking until the provisions identified above are
removed.
4
Robinson IV, slip op. at 18.
5
No. 321 MD 2015.
6
The Commonwealth Court’s majority, concurring (Judge McCullough) and dissenting (Judges
Covey and Cohn Jubelirer ) opinions are available here:
http://www.pacourts.us/assets/opinions/Commonwealth/out/321MD15_9-1-16.pdf?cb=1.
7
Robinson IV, slip op. at 5, n. 3. While there are two additional subsections in Section 3215 –
3215(f) and 3215(g) – these subsections were not at issue or addressed in this litigation. So the
Robinson IV court’s statement must be read in the context of the subsections of Section 3215 that
were at issue, namely (a)-(e).
8
Yesterday, September 29th
, PIOGA filed its notice of appeal and jurisdictional statement with
respect to the Commonwealth Court’s September 1ST
ruling. Copies of these filings are attached.

4. {B1701659.4} 4
PIOGA appreciates your attention to this urgent matter, and I welcome you to contact me
if you have any questions or seek additional information concerning our request.
Sincerely,
Kevin J. Moody
General Counsel
Pennsylvania Independent Oil & Gas Association
cc: Amy Elliott, Chief Deputy Attorney General
Director, Legal Review Section
Patrick McDonnell, Acting Secretary,
PA Department of Environmental Protection and Environmental Quality Board
George D. Bedwick, Chairman
PA Independent Regulatory Review Commission
(via Chief Counsel Leslie Lewis Johnson)
David Sumner
Executive Director IRRC
Representative John A Maher
Chairman, House Energy and Environment Committee
Senator Gene Yaw, Chairman
Senate Environmental Resources and Energy Committee
(all via email)