The devil in chapter 78

Last year, Governor Corbett signed into law Act 13 of 2012, the first comprehensive revision of Pennsylvania’s oil and gas law since 1984.

Soon – perhaps as early as Friday – the Pennsylvania Environmental Quality Board (EQB) will seek public comment on the first major revisions of Pennsylvania’s oil and gas well regulations (which are set forth at 25 Pa. Code Chapter 78) since 1989. The revisions run to some 74 pages.

Generally speaking, Pennsylvania environmental law takes two forms: (1) statutes like Act 13, which are passed by the General Assembly and signed into law by the governor; and (2) regulations, which are promulgated by the EQB, a special governmental body whose sole function is to establish regulations for the Department of Environmental Protection (DEP). Though not technically considered laws, terms and conditions set forth in permits issued by DEP constitute a third variety of enforceable standards and restrictions.

Statutes are the broad strokes of the law – detailed in places, but typically rich in ambiguities and gaps, often due to legislative compromise. Regulations “implement” statutes by clarifying ambiguities and filling gaps; they are the tools that state agencies use to give effect to the statutes they administer. Permit terms apply statutes and regulations to particular activities.

The purpose of the upcoming Chapter 78 revisions is twofold: First, to implement Act 13, and second, to codify a number of regulatory approaches that the DEP has so far implemented only through permit terms, such as design and construction standards for centralized wastewater impoundments.

In the coming weeks, this blog will return to parts of the Chapter 78 revisions that merit particular public attention and comment. We all know who skulks in the details.