A letter from the Pennsylvania Independent Oil & Gas Association to newly appointed members of the Dept. of Environmental Protection's Oil & Gas Technical Advisory Board (TAB). The letter encourages TAB to reject Acting Sec. John Quigley's changes to Article 78 & 78a rulemaking changes (i.e. regulations). It challenges Quigley's right to fire the previous board and appoint new non-voting members to the current TAB.

1. April 10, 2015
Via email to:
Fred J. Baldassare, P.G., ECHELON Applied Geoscience Consulting
Robert C. Hendricks, P.G., Shell Exploration and Production Company
Bryan J. McConnell, P.G., Tenaska Incorporated
Casey V. Saunders, P.E., CONSOL Energy
David A. Yoxtheimer, P.G., Marcellus Center for Outreach and Research, PSU
Re: Proposed Bylaw Changes
Dear TAB Members:
As you all know, the Oil and Gas Technical Advisory Board (TAB) has played an important and
necessary role in the environmental regulation of the oil and natural gas industry since the
original Oil and Gas Act became effective in 1985. While the General Assembly saw fit to make
many significant changes when reenacting the Oil and Gas Act in Chapter 32 of Act 13 of 2012,
no changes were made to TAB’s provision, Section 3226, 58 Pa. C.S. § 3226.
The Pennsylvania Independent Oil & Gas Association (PIOGA) has always supported TAB’s
work and members. PIOGA believes that there was no need for the General Assembly to make
any changes in TAB’s statutory obligations, responsibilities or composition because TAB has
functioned well. PIOGA is unaware of any complaints or concerns that TAB has performed
unsatisfactorily. However, it appears that the purged TAB members’ extensive and constructive
but critical commentary of the Chapter 78 rulemaking may have played some role in their
removal.
Notwithstanding the General Assembly’s determination in Act 13 not to make any changes with
respect to TAB, Governor Wolf and his advisors decided that TAB’s composition and scope
should be expanded to afford greater representation of the public interest than the General
Assembly has determined is adequate. As the Governor’s appointees, you are placed in a
difficult political position by being asked to approve changes in TAB’s bylaws that go beyond
the statutory directives to reflect the Governor’s view of what TAB should be.
However, while your situation presents a political problem, it does not present a dilemma
because your legal obligation is clear. Your oaths of office require you to act in accordance with
law, and the law concerning TAB’s composition and scope is clear –and it does not provide for
the appointment of additional “members”, whether voting or non-voting, for any purpose, no
matter how laudable. The General Assembly has designated the TAB member geologist or
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petroleum engineer chosen from the list submitted by the Citizens Advisory Council to represent
the public interest.
It is equally clear that the Governor and others in the executive branch can neither expand nor
restrict the legislative directives concerning TAB in Section 3226, but that is exactly what the
Governor’s proposed bylaws would do.
While your appointment to definite terms could be viewed as providing some protection from
your removal at the will of the Governor, that view is contrary to the Governor’s position in the
current litigation involving the propriety of the Governor’s removal of the former Executive
Director of the Office of Open Records. Arneson et al. v. Wolf et al.., 35 M.D. 2015.
Accordingly, PIOGA understands the difficult political decision you face with respect to
approving the proposed bylaws. However, assuming (i) the Governor appointed you with the
expectation and, indeed, directive that you faithfully discharge your public powers in accordance
with the law, and (ii) that TAB is truly “your board” as stated by DEP attorneys during the
meeting on March 20th
, your political decision is equally as clear as your legal obligation –
disapprove the proposed bylaws and retain the existing bylaws.
As you are aware because of his March 19, 2015 letter to Acting DEP Secretary Quigley,
Representative John A. Maher, Majority Chair of the House Environmental Resources & Energy
Committee, shares our concern with the illegality of the attempted expansion of TAB’s
composition and scope beyond the statutory dictates. Perhaps Mr. Quigley will accede to
Representative Maher’s request that he “restore TAB Board membership to that prescribed by
law” and thereby obviate your need to consider the proposed bylaws but, if not, PIOGA stands
behind your taking the right action.
Sincerely,
Kevin J. Moody, Esquire
General Counsel & Vice President Government Affairs
Pennsylvania Independent Oil & Gas Association
212 Locust Street, Suite 300
Harrisburg, PA 17101-1510
kevin@pioga.org
cc: Acting DEP Secretary John Quigley
Governor Tom Wolf
Senator Joe Scarnati, President Pro Tempore
Senator Jake Corman, Majority Leader
Senator Gene Yaw, Majority Chair, Environmental Resources & Energy Committee
Representative Mike Turzai, Speaker of the House
Representative Dave Reed, House Majority Leader
Representative John Maher, Majority Chair, Environmental Resources & Energy Committee
Nate Spade, Deputy Secretary of Legislative Affairs