Despite winning the approval of a key state agency, a major revision to Pennsylvania's oil and natural gas regulations appeared on Friday to be heading for a showdown in the state legislature.
The state's five-member Independent Regulatory Review Council, after a seven-hour meeting on Thursday, voted 3-2 to approve the regulations, which strengthen environmental protection rules for oil and gas well sites.
In the case of most rulemakings, the IRRC approval would be just a stepping stone on the way toward eventual implementation of the regulations, but in the case of the controversial proposed oil and gas rules, the standing energy committees of both houses of the state legislature have expressed their disapproval of the rulemaking process, which could result in a legislative fight.
"The legislature has an opportunity to put forward a concurrent resolution; if they would like to, they can stop the regulation," IRRC Executive Director David Sumner said in an interview Friday.
Prior to the IRRC approval, both the Senate and House of Representatives Environmental Resources and Energy committees had passed resolutions disapproving the rulemaking.
This unusual action by the lawmakers has set up a potential confrontation between the Republican-controlled legislature and Governor Tom Wolf, a Democrat who has called for the tighter regulation on the oil and gas industry.
"Normally, we would review it and approve it and it goes the attorney general's office," Sumner said. "But since the legislative standing committees have expressed their disapproval, they have an opportunity to draft legislation that can try to stop it."
The IRRC approval followed a marathon meeting, at which dozens of speakers, who were "nothing but courteous and remarkably considerate," debated the pros and cons of the proposed new rules, he said.
"We heard from roughly 40 individuals, organizations and groups on both sides of the issue," Sumner said. "We started early and stayed until everyone who wanted to speak had an opportunity to speak."
Representatives of the state's oil and gas industry decried the proposed regulations, which they argue would create undue burdens on operators, and challenged the process under which the state Department of Environmental Protection has conducted the rulemaking.
Louis D'Amico, president of the Pennsylvania Independent Oil and Gas Association, said he was "very disappointed," with the IRRC's approval of the proposed regulations.
"We think that the IRRC did a poor job and given the fact that there were three Democrats voting against two Republicans on the commission, it smells very much like partisan politics rather than a legitimate regulatory review," D'Amico said in an interview Friday.
State law had called for the DEP to create two separate regulations, one for conventional oil and gas production and one for unconventional oil and gas operations, he said.
"The DEP basically ignored that. They created two sections, put the same things in the conventional and unconventional and did not develop the separate regulations," D'Amico said.
He added that comments that PIOGA and other pro-industry organizations had made concerning the proposed rules "were basically ignored."
In an April 12 letter to the leaders of the IRRC and the state Environmental Quality Board, Republican Senator Gene Yaw, chairman of the Senate energy committee, and Senator John Yudichak, the Democratic co-chair, explained why the committee voted in a bipartisan 9-2 vote to disapprove of the board's rulemaking process.
The committee alleged the DEP circumvented requirements of the Regulatory Review Act, by failing to perform a financial analysis of the impact of the proposed rules, and failing "to state a compelling need for the regulation."
In addition, the committee said the EQB and DEP had failed to abide by Act 126 of 2014, which required the holding of separate rulemakings for conventional and unconventional oil and gas operations.
"Unfortunately, the department simply copied and pasted the regulations into separate chapters of the rulemaking. The two industries are different in size and scope and should be treated accordingly through separate rulemaking," the committee wrote.
"The argument from members of the committee was that they were supposed to start the process over for conventional and allow the unconventional regulations to move through," Adam Pankake, executive director of the Senate energy committee, said in an interview Friday.
Pankake added that the DEP did not approve minor amendments to the proposed rules recommended by the state Oil and Gas Technical Advisory Board, even though those changes would have improved the rulemaking.
"There was no collaboration between the department and the General Assembly and I think that has led to the frustration that you see coming from the members of both standing committees," he said.
