[J-73-2017]

IN THE SUPREME COURT OF PENNSYLVANIA

MIDDLE DISTRICT

SAYLOR, C.J., BAER, TODD, DONOHUE, DOUGHERTY, WECHT, MUNDY, JJ.

THE MARCELLUS SHALE COALITION,

Appellee

v.

DEPARTMENT OF ENVIRONMENTAL 

PROTECTION OF THE 

COMMONWEALTH OF PENNSYLVANIA 

AND ENVIRONMENTAL QUALITY 

BOARD OF THE COMMONWEALTH OF 

PENNSYLVANIA,

Appellants

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No. 115 MAP 2016

Appeal from the Order of the

Commonwealth Court at No. 573 MD 

2016 dated 11/8/16

ARGUED: October 18, 2017

OPINION

CHIEF JUSTICE SAYLOR DECIDED: June 1, 2018

This is a direct appeal in the context of pre-enforcement judicial review of 

regulations governing the operation of unconventional gas wells in Pennsylvania. The 

Commonwealth Court, sitting as a trial court, issued a single-judge opinion and order 

preliminarily enjoining the enforcement of some of the challenged regulations. The 

administrative-agency parties appeal from that decision.

I. Background

On October 13, 2016, Appellee, the Marcellus Shale Coalition (“MSC”), filed in 

the Commonwealth Court’s original jurisdiction a petition for review in the nature of a 
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complaint seeking declaratory and injunctive relief (the “Petition”), on behalf of itself and 

its members. MSC describes itself as a non-profit membership organization whose 

members explore, produce, transmit, and distribute natural gas from the Marcellus and 

Utica Shale formations. See Petition ¶¶3-4. MSC named as respondents the 

Pennsylvania Department of Environmental Protection (“DEP”) and the Pennsylvania 

Environmental Quality Board (the “EQB”) (collectively, the “Agencies”).

1

In the Petition, MSC challenged the validity of several regulations relating to 

unconventional gas well operations as governed by Pennsylvania’s Oil and Gas Act of 

2012, known as Act 13.2 See Robinson Twp. v. Commonwealth, 623 Pa. 564, 584 & 

n.1, 83 A.3d 901, 913 & n.1 (2013). Those provisions are contained in Title 25, Chapter 

78a of the Pennsylvania Administrative Code. They were promulgated as part of a 

rulemaking package which included regulations for conventional wells under Chapter 78 

and for unconventional wells under Chapter 78a.3 The package went into effect upon 

its publication in the Pennsylvania Bulletin on October 8, 2016.

 

1 The Commonwealth Court noted that Pennsylvania’s environmental administration is 

divided among three entities: DEP, which enforces environmental laws and regulations; 

the EQB, which is a rulemaking body; and the Environmental Hearing Board, an 

adjudicative entity tasked with resolving disputed matters. See MSC v. DEP & EQB, 

No. 573 M.D. 2016, slip op. at 3 n.2 (Pa. Cmwlth. Nov. 8, 2016) (citing Tire Jockey 

Serv., Inc. v. DEP, 591 Pa. 73, 106, 915 A.2d 1165, 1185 (2007)).

2 Act of Feb. 14, 2012, P.L. 87, No. 13 (as amended 58 Pa.C.S. §§2301-3504). Under 

Act 13, an unconventional gas well is defined as a bore hole drilled so as to obtain 

natural gas from an “unconventional formation,” 58 Pa.C.S. §2301, which in turn 

signifies a “geological shale formation existing below the base of the Elk Sandstone or 

its geologic equivalent stratigraphic interval where natural gas generally cannot be 

produced at economic flow rates or in economic volumes except by vertical or horizontal 

well bores stimulated by hydraulic fracture treatments or by using multilateral well bores 

or other techniques to expose more of the formation to the well bore.” Id.

3

In compliance with legislation enacted in 2014, regulations relating to unconventional 

gas wells were segregated from those pertaining to conventional gas wells, which are 

(continued...)
[J-73-2017] - 3

MSC asserted seven counts, focusing on regulations pertaining to discrete areas 

within Chapter 78a which were part of the new package. These included: public 

resources, see 25 Pa. Code §§78a.1, 78a.15(f), (g); area of review, see id. §§78a.52a, 

78a.73(c), (d); onsite processing, see id. §78a.58(f); impoundments, see id. §§78a.59b, 

78a.59c; site restoration, see id. §78a.65; remediation of spills, see id. §78a.66(c); and 

waste reporting, see id. §78a.121(b). MSC alleged that these provisions were void and 

unenforceable for multiple reasons, including that they were vague, lacked statutory 

authorization, and conflicted with other regulations and statutes applicable to the 

industry. See Petition ¶34. As well, MSC averred that the rulemaking process did not 

comply with the Regulatory Review Act, and that the EQB failed to develop criteria for 

DEP to use in conditioning a drilling permit on relevant factors. See id.

A. Request for preliminary injunctive relief

Contemporaneous with the Petition, MSC filed an Application for Expedited 

Special Relief (the “Application”), requesting a preliminary injunction with respect to the 

Chapter 78a regulations challenged in the Petition pending a ruling as to their validity. 

The Agencies submitted a joint answer opposing the Application and arguing MSC 

failed to meet the requirements for a preliminary injunction. An evidentiary hearing was 

held with MSC bearing the burden to demonstrate the need for interim relief.4

 

(...continued)

governed under Chapter 78. Thus, Chapter 78a is a new chapter which pertains 

specifically to unconventional gas wells.

4 To obtain a preliminary injunction, a litigant must show: (1) it is needed to prevent 

irreparable harm that cannot be adequately compensated by damages; (2) greater 

injury would result from refusing the injunction than from granting it, and, concomitantly, 

an injunction will not substantially harm other interested parties in the proceedings; (3) 

the injunction will restore the parties to their status as it existed prior to the alleged 

wrongful conduct; (4) the party seeking injunctive relief has a clear right to relief and is 

(continued...)
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At the hearing, MSC did not present any witnesses, but it did enter documents 

into the record, including the transcript of an EQB meeting, a copy of Chapter 78a 

regulations, a regulatory analysis form submitted to the Independent Regulatory Review 

Commission (“IRRC”) for consideration with those regulations, and correspondence 

from the House and Senate Environmental Resources and Energy Committees to the 

IRRC and EQB suggesting legislative disapproval of the proposed Chapter 78a 

regulations. For their part, the Agencies presented the testimony of DEP Deputy 

Secretary Scott Perry, who heads the agency’s Office of Oil and Gas Management. 

Secretary Perry supplied information concerning unconventional gas drilling and how it 

differs from conventional drilling. He also addressed the substance of the disputed 

regulations, the process by which they were finalized, and the need for such rules.

B. Trial court decision granting relief in part

The Commonwealth Court, per Judge Brobson, issued a single-judge, 

unpublished opinion and order, granting in part and denying in part preliminary 

injunctive relief. As MSC has not cross-appealed, we are only concerned with the 

portion of the decision granting such relief. In particular, the court granted the 

 

(...continued)

likely to prevail on the merits; (5) the injunction is reasonably suited to abate the 

offending activity; and, (6) the injunction will not adversely affect the public interest. See 

SEIU Healthcare Pa. v. Commonwealth, 628 Pa. 573, 584, 104 A.3d 495, 502 (2014) 

(citing Warehime v. Warehime, 580 Pa. 201, 209-10, 860 A.2d 41, 46-47 (2004)).

In light of the applicant’s burden of proof on these elements, Justice Donohue criticizes 

MSC for not calling its own witnesses. See Concurring and Dissenting Opinion, slip op.

at 3. However, MSC introduced into the record various items of documentary evidence, 

and it subjected Secretary Perry to extensive cross-examination. The Commonwealth 

Court could properly consider all such evidence – as well as the Secretary’s directexamination testimony where appropriate – in assessing whether the factors 

enumerated above were satisfied.
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Application for interim relief (at least in part) with respect to Counts I, II, IV, and V of 

Petition, and denied the Application in all other respects.

General precepts

Initially, the court made several general comments concerning the prerequisites 

for preliminary injunctive relief. The court explained, for example, that where a party 

incurs losses from having to comply with an invalid regulation and the relevant 

government agency is immune from liability, the party’s losses constitute irreparable 

harm. See MSC, No. 573 M.D. 2016, slip op. at 8 (citing Boykins v. City of Reading, 

128 Pa. Cmwlth. 154, 158, 562 A.2d 1027, 1028-29 (1989)). With respect to the clearright-to-relief/likelihood-of-success element, the court added that it need not finally 

decide the merits of the challenger’s substantive claims; rather, the court explained, the 

inquiry is whether the challenger has presented a substantial legal question that must 

be resolved to determine the parties’ rights and obligations. See id. (citing T.W. Phillips 

Gas & Oil Co. v. Peoples Natural Gas Co., 492 A.2d 776, 780-81 (Pa. Cmwlth. 1985)). 

Finally, the court indicated that the status quo to be preserved by a preliminary 

injunction is the last “peaceable, lawful, noncontested status which preceded the 

pending controversy.” Id. (citing The Woods at Wayne Homeowners Ass’n v. Gambone 

Bros. Constr. Co., 893 A.2d 196, 204 n.10 (Pa. Cmwlth. 2006)).

Public resources (Count I)

In Count I, MSC alleged that regulations pertaining to public resources, as 

reflected in Sections 78a.15(f) and (g), together with related definitions in Section 78a.1, 

were void and unenforceable for a variety of reasons.

The court noted that Section 78a.15(f) imposes on drilling applicants a preapplication-notice obligation relative to “public resources” – a term that is not defined 

but, in context, appears to signify various types of features such as forests, game lands, 
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wildlife areas, national natural landmarks, state or national scenic rivers, historical and 

archaeological sites, threatened or endangered species, and critical habitats. See 25 

Pa. Code §78a.15(f)(1). Under the Chapter 78a regulations, it also includes “common 

areas on a school’s property or a playground” and “other critical communities.” Id. 

“Other critical communities” is defined in Section 78a.1 to include plant and animal 

“species of special concern identified on a [Pennsylvania Natural Diversity Inventory] 

receipt[.]” Id. §78a.1. Further, a “common area on a school’s property” comprises “an 

area on a school’s property accessible to the general public for recreational purposes.” 

Id. Thus, the court observed, in relation to each public resource that may potentially be 

impacted by a proposed drilling operation, the applicant must provide to each “public 

resource agency” – that is, an entity which manages a public resource, including 

playground owners, see id. – information concerning its proposal, such as a plat and 

any measures which might mitigate prospective harm to the public resource in question.

MSC forwarded eleven distinct legal challenges to this scheme, see Petition ¶44, 

based largely on the premise that, in Robinson Township v. Commonwealth, 637 Pa. 

239, 147 A.3d 536 (2016) (“Robinson Twp. IV”), this Court enjoined enforcement of 

Section 3215(c) of Act 13 – with the consequence that DEP lacked authority to protect 

“public resources” under Act 13. In the alternative, MSC claimed, inter alia, that: Act 13 

does not authorize the type of pre-permitting notification scheme required by the abovementioned regulations; such regulations exceed the scope of DEP’s authority by 

extending public-resource status to species of special concern, common areas of 

schools, and playgrounds; the regulations improperly confer “public resource agency” 

status upon local government agencies and private parties; and the scheme does not 

comply with Section 3325(e) of Act 13. As to this latter contention, the court explained

that Section 3215(e) directs the EQB to develop, by regulation, criteria for DEP to use in 
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“conditioning a well permit based on its impact to the public resources identified under 

subsection (c) and for ensuring optimal development of oil and gas resources and 

respecting property rights of oil and gas owners.” 58 Pa.C.S. §3215(e)(1) (emphasis 

added). In turn, subsection (c) indicates that DEP “shall consider the impact of the 

proposed well on public resources” such as parks, forests, wildlife areas, scenic rivers, 

natural landmarks, habitats of “rare and endangered flora and fauna and other critical 

communities,” historical and archaeological sites, and sources of “drinking supplies[.]” 

Id. §3215(c) (emphasis added).

The Commonwealth Court ultimately rejected MSC’s general argument that DEP 

lacks authority to protect public resources under Act 13. The court explained that, in 

Pennsylvania Independent Oil & Gas Ass’n v. DEP, 146 A.3d 820 (Pa. Cmwlth. 2016), 

aff’d per curiam, ___ Pa. ___, 161 A.3d 949 (2017), it had concluded that, in the wake 

of Robinson Township v. Commonwealth, 623 Pa. 564, 83 A.3d 901 (2013) (“Robinson 

Twp. I”), DEP’s authority under Section 3215(c) of Act 13 “to consider the impact that a 

proposed well will have on public resources, those listed and unlisted, is extant, limited 

only by” the portion of Robinson Twp. I that enjoins Act 13’s enforcement with respect to 

certain statutory water source setback and waiver provisions. MSC, No. 573 M.D. 

2016, slip op. at 14 (quoting Pa. Indep. Oil & Gas Ass’n, 146 A.3d at 829). The court 

also found most of the other legal theories forwarded by MSC to be insufficient to 

warrant preliminary injunctive relief.

The court did, however, conclude that MSC had raised a colorable argument that 

the regulations improperly expanded the list of protected resources beyond those 

enumerated in Section 3215(c). Although acknowledging that Section 3215(c)’s list is 

not exhaustive, the court observed that a substantial question remained whether the 

General Assembly intended to protect only publicly-owned natural resources, or all 
[J-73-2017] - 8

publicly-owned property, as well as privately-owned property open to the public. See id. 

at 16-17.

Similarly, the Commonwealth Court found that MSC presented a substantial 

question regarding the permissibility of subsuming “species of special concern” within 

the public-resource protection rules by including them within the definition of “other 

critical communities.” 25 Pa. Code §78a.1. It expressed that such resource 

classification fell below endangered or threatened species, was not the result of public 

rulemaking, and lacked special protection under Pennsylvania statutes enforced by 

DEP. Accordingly, the court indicated that the inclusion of “species of special concern” 

within the challenged regulations was “untethered” to the Agencies’ authority under Act 

13. MSC, No. 573 M.D. 2016, slip op. at 18.

Overall, then, the court determined that MSC had satisfied the clear-right-to-relief 

prong in relation to the Chapter 78a regulations in question insofar as they include as 

public resources “common areas on a school’s property or a playground” and “species 

of special concern,” and include playground owners as public resource agencies. The 

court reasoned that these aspects of the regulations gave rise to irreparable harm per 

se and, additionally, irreparable harm via the “cost [of] compliance with these provisions 

– costs that well applicants will be unable to recover . . . if this Court should rule in favor 

of MSC on the merits.” Id.

Finally, the court held that the harm to MSC from refusing a narrowly-tailored 

preliminary injunction relative to the above discrete items outweighed the harm from 

granting it, particularly as granting it would leave in place the overall notice, comment, 

and mitigation scheme reflected in Section 78a.15(f), and the Agencies had not offered 

evidence at the hearing that preliminarily enjoining these provisions would harm any 

person, entity, or the public. As well, the court noted that a narrowly-tailored injunction 
[J-73-2017] - 9

would restore the parties to the status quo as it existed prior to the alleged wrongful 

conduct and would not adversely affect the public interest. See id. at 19 & n.13.

Area of review (Count II)

In Count II of the Petition, MSC challenged the validity of regulations appearing in 

Sections 78a.52a and 78a.73(c) and (d), which relate to the obligations of well operators 

relative to nearby wells and the operators of such wells. These rules are designed to 

address DEP’s concern with the unintentional migration of fluids and other materials 

associated with unconventional drilling from the target well to nearby orphan, 

abandoned, or plugged wells.

Under the regulations, prospective operators must, in the pre-drilling timeframe,

conduct an area-of-review survey identifying all active, inactive, orphan, abandoned, 

and plugged-and-abandoned wells that lie within 1,000 feet of the operator’s intended 

vertical well bore or of any point on the surface above the length of an intended 

horizontal bore.

5

 They must also provide notice of their planned drilling activities to the 

operators of all such nearby wells. They are additionally required to engage in ongoing 

visual monitoring of all such nearby wells during well stimulation activities, and to 

provide remediation – such as plugging orphan and abandoned wells – in the event 

stimulation of a well by hydraulic fracturing causes an intrusion into or alteration of a 

well listed in the area-of-review survey. See 25 Pa. Code §§78a.52a, 78a.73(c), (d).

 

5 Act 13 defines an abandoned well as one that has not been used for extraction within 

the past 12 months, or for which production equipment has been removed, or which is 

considered dry and not equipped for production within 60 days after drilling or 

deepening. See 58 Pa.C.S. §3203. It defines an orphan well as one that was 

abandoned before April 18, 1985, which “has not been affected or operated by the 

present owner or operator and from which the present owner, operator or lessee has 

received no economic benefit other than as a landowner or recipient of a royalty interest 

from the well.” Id.
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MSC alleged that: these provisions impose an unreasonable and unwarranted 

monitoring obligation; there is no legal authority for such area-of-review requirements; 

requiring someone other than the well owner to plug an orphan or abandoned well 

conflicts with Section 3220 of Act 13, which imposes plugging requirements only on the 

well owner or operator, see 58 Pa.C.S. §3220; the regulations are void for vagueness in 

light of DEP’s admission at an EQB meeting that it intends to issue technical guidance 

documents to clarify the obligations created under them; and the monitoring and 

remediation provisions would force well operators to enter illegally onto property owned 

and controlled by others.

As with Count I, the Commonwealth Court granted preliminary injunctive relief in 

part. Initially, the court rejected the contention that the challenged regulations were 

unreasonable or unfounded, as MSC failed to demonstrate that the migration of drilling 

fluids poses no risk to Commonwealth waters as broadly defined by the Clean Streams 

Law.6 See 35 P.S. §691.1 (relating to definitions). Further, the court indicated that in 

passing Act 13, the General Assembly envisioned that DEP’s authority to regulate well 

operations in the public interest extended beyond Act 13 and “encompassed authority 

granted under a plethora of existing environmental laws, working in concert with Act 13.” 

MSC, No. 573 M.D. 2016, slip op. at 24 (footnote and citations omitted). In light of such 

presumed authority, the court also determined that no substantial issue was raised 

concerning the appropriateness of requiring operators to submit to DEP an area-ofreview survey as part of the application process. The court additionally rejected several 

other theories forwarded by MSC, including that the regulations are void for vagueness.

Nevertheless, the Commonwealth Court found that MSC raised a substantial 

legal issue regarding the reasonableness of the monitoring and remediation provisions. 

 

6 Act of June 22, 1937, P.L. 1987, No. 394 (as amended 35 P.S. §§691.1-691.1001).
[J-73-2017] - 11

It referenced significant implementation issues apparent from the face of the regulation, 

i.e., 25 Pa. Code §78a.52a(c)(3), including whether a well operator could validly obtain 

access to, and remediate, every well listed in the area-of-review survey owned by 

others. Moreover, the court concluded that substantial questions existed as to how 

Section 78a.73(d) is consistent with the well-plugging requirements set forth in Act 13,

which place the onus on a well owner or operator to plug its own wells, and DEP’s own 

authority to plug wells under that statute. See MSC, No. 573 M.D. 2016, slip op. at 26 

(citing, 58 Pa.C.S. §§3220, 3271).

The Commonwealth Court also determined that MSC established irreparable 

harm that outweighed any harm in refusing to grant the injunction, because the cost of 

compliance as estimated by the EQB was $11 million, which may be unrecoverable if 

MSC is successful on the merits. Further, the court concluded that an injunction would 

restore the parties to the status quo, that is, the absence of monitoring and remediation 

requirements with respect to wells owned or operated by others. Ultimately, the court 

expressed that it would grant a narrow preliminary injunction whereby operators must 

still monitor and remediate any of their own wells listed in the area-of-review survey, but 

not the wells of others. See id. at 27.

Impoundments (Count IV)

In Count IV, MSC alleged that the Chapter 78a rulemaking package contained 

regulations with extensive and burdensome new requirements for impoundments. MSC 

pointed to rules setting forth new construction standards for well-development 

impoundments, including requirements that they be constructed with a synthetic 

impervious liner and either have a completely-surrounding fence or be continuously 

monitored by an individual to prevent damage from third parties or wildlife. See 25 Pa. 
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Code §78a.59b(d), (e).7 MSC also noted that existing well-development impoundments

must be upgraded to meet these new standards or closed by October 10, 2017. See id.

§78a.59b(b). As well, MSC averred that the regulations mandate that centralized 

impoundments either be closed or re-permitted by a date certain under the Solid Waste 

Management Act (“SWMA”).

8

 See id. §78a.59c.

MSC challenged these regulations on a number of grounds. Among these was a 

contention that operators, including its members with impoundments that were built in 

compliance with DEP regulations, must now close their impoundments or upgrade them 

to meet the new standards. In this respect, MSC observed there is no grandfathering 

for synthetic liners already in place. See Petition ¶64.

The Commonwealth Court found that a substantial legal question existed in this 

regard, noting in particular that Secretary Perry credibly testified that: the new rules 

arose, not from a change in the law, but from a change in DEP’s interpretation of 

longstanding law; and existing impoundments permitted and built to DEP standards 

would have to be retrofitted or closed under DEP’s new interpretation. See MSC, No. 

573 M.D. 2016, slip op. at 32 (quoting Young J. Lee, Inc. v. Dep’t of Revenue, 504 Pa. 

367, 375, 474 A.2d 266, 270 (1983) (“The government cannot, on the one hand, create 

a business which is dependent on a permit and then, with the other, destroy it by 

revoking the authorizing permits without first affording sufficient due process.” (internal 

quotation marks and citation omitted))). The court additionally recognized that, 

 

7 According to the Commonwealth Court, well-development impoundments store fresh 

water for use in drilling operations, whereas centralized impoundments store waste 

water generated from drilling activities. See MSC, No. 573 M.D. 2016, slip op. at 31.

8 Act of July 7, 1980, P.L. 380 (as amended 35 P.S. §§6018.101-6018.1003).
[J-73-2017] - 13

according to the hearing evidence, the cost of impoundment retrofitting was substantial 

and potentially unrecoverable, thereby establishing irreparable harm.

Finally, while acknowledging that the proposed regulations would likely offer 

greater health and safety protections, the court noted DEP offered no evidence 

demonstrating that existing impoundments pose an immediate threat to the public 

health and safety or to the environment – a circumstance which led the court to 

conclude that the harm from refusing an injunction would outweigh any harm from 

granting it.

The Commonwealth Court expressed that its preliminary injunction as to the 

impoundment regulations would be closely fitted to address only the effect that such 

regulations would have on existing impoundments. Thus, the court denied injunctive 

relief insofar as the regulations apply to new impoundments. The court indicated that, 

as thus narrowed, the injunctive relief would not adversely affect the public interest. 

See MSC, No. 573 M.D. 2016, slip op. at 33.

Site restoration (Count V)

In Count V of its Petition, MSC challenged the regulations pertaining to site 

restoration. As the term suggests, site restoration refers to restoration, after the 

construction of a well is complete, of land surface areas disturbed during the creation of 

the well. See 25 Pa. Code §78a.65(a).

Site restoration is addressed by Section 3216 of Act 13. See 58 Pa.C.S. 

§3216(a) (requiring every well owner or operator to “restore the land surface within the 

area disturbed in siting, drilling, completing and producing the well”). That provision 

indicates operators must formulate an erosion and sediment control plan which 

complies with the Clean Streams Law. See id. §3216(b). It also requires that various 

aspects of site restoration be complete within nine months after a well is drilled, see id.
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§3216(c), (d), unless an extension is obtained from DEP, see id. §3216(g). Finally, 

restoration activities accomplished per Act 13 and its associated regulations must 

comply with the Clean Streams Law. See id. §3216(e). The Commonwealth Court 

observed that Section 78a.65 appears to implement the requirements contained in 

Section 3216 of Act 13.

As with previous counts, MSC articulated several grounds on which it believed 

that Section 78a.65 was void and unenforceable. Ultimately, the Commonwealth Court 

found that only one of MSC’s claims raised a substantial legal question.

By way of further background, under the Clean Streams Law and associated

regulations in Title 25, Chapter 102 of the Pennsylvania Code (relating to erosion and 

sediment control), directives are given in a rule governing post-construction stormwater 

management (“PCSM”), namely 25 Pa. Code §102.8. Per that provision, all PCSM 

plans must meet certain basic requirements. See id. §102.8(f). Additional mandates for 

pre- and post-development stormwater analysis are listed in Section 102.8(g). Notably, 

subsection (g) exempts from its scope “regulated activities that require site restoration 

or reclamation, and small earth disturbance activities identified in subsection (n)[.]” Id.

§102.8(g). Subsection (n), in turn, provides a list of exempted items which includes that 

portion of a site restoration plan identifying PCSM best management practices (“BMPs”) 

to manage stormwater from oil and gas activities, and indicates that such items may be 

used to satisfy the requirements of Section 102.8, so long as the PCSM plan meets the 

requirements of several other enumerated subsections of Section 102.8 other than 

subsection (g). The subsection states, in full:

(n) Regulated activities that require site restoration or reclamation, and 

small earth disturbance activities. The portion of a site reclamation or 

restoration plan that identifies PCSM BMPs to manage stormwater from oil 

and gas activities or mining activities permitted in accordance with 

Chapters 78 and 86--90; timber harvesting activities; pipelines; other 
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similar utility infrastructure; Department permitted activities involving less 

than 1 acre of earth disturbance; or abandoned mine land reclamation 

activities, that require compliance with this chapter, may be used to satisfy 

the requirements of this section if the PCSM, reclamation or restoration 

plan meets the requirements of subsections (b), (c), (e), (f), (h), (i) and (l) 

and, when applicable, subsection (m).

25 Pa. Code §102.8(n).

Returning to the Chapter 78a regulations in issue, MSC questioned whether 

Section 78a.65(d) could be enforced, given MSC’s view that that subsection purported 

to limit the above-mentioned exemption. In particular, Section 78a.65(d) states:

(d) Areas not restored. Disturbed areas associated with well sites that are 

not included in a restoration plan, and other remaining impervious 

surfaces, must comply with all requirements in Chapter 102 (relating to 

erosion and sediment control). The PCSM plan provisions in §102.8(n) 

apply only to the portions of the restoration plan that provide for 

restoration of disturbed areas to meadow in good condition or better or 

otherwise incorporate ABACT [antidegeneration best available 

combination of technologies] or nondischarge PCSM BMPs.

25 Pa. Code §78a.65(d) (emphasis added).

The Commonwealth Court found that MSC had raised a substantial legal issue

as to whether the above subsection “imposes erosion and sediment control measure 

requirements on well owners and operators in excess of what is required under the 

Clean Streams Law.” MSC, No. 573 M.D. 2016, slip op. at 38. The court continued that

Section 3216(b) and (c) of Act 13 specify that erosion and sediment control measures 

are to be implemented pursuant to the Clean Streams Law. It observed that in the 

regulatory analysis form (the “RAF”) submitted to the IRRC for consideration with the 

Chapter 78a regulations, DEP had described these provisions as mere clarifications of 

existing law. The court noted that that position was undermined to the extent Section

78a.65(d) purports to abrogate any exemptions contained in the Clean Streams Law. 
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That being the case, the court determined that MSC had raised a substantial legal 

question and thus had satisfied the clear-right-to-relief prong. See id.

Further, the Commonwealth Court held that any conflict between Section 

78a.65(d) and the Clean Streams Law and/or Chapter 102 constitutes irreparable harm 

per se insofar as the challenged provision conflicts with legislative intent as expressly 

stated in Section 3216(b) and (e) of Act 13. The court added that the harm to MSC from 

denying interim relief would outweigh any purported harm to the Agencies from granting 

it. On this latter point, the court expressed that preliminarily enjoining DEP from 

implementing the regulation should have no effect on the agency as DEP stated in the 

RAF that the regulation merely restates what the DEP believes are current restoration 

requirements. See id. at 37 (quoting RAF at 101). Additionally, the court indicated that 

enjoining the provision will restore the parties to the status quo before the allegedly 

wrongful conduct, namely, the absence of Section 78a.65(b). See id. at 39. Lastly, the 

Commonwealth Court clarified that its injunction would be narrowly tailored to 

encompass only Section 78a.65(d), thus “leaving intact the bulk of Section 78a.65 

pending the outcome of this litigation.” Id.

The Commonwealth Court’s order

Based on the foregoing, the Commonwealth Court issued an order granting in 

part and denying in part MSC’s Application for Expedited Special Relief. The order

preliminarily enjoined DEP from implementing and enforcing: (1) Sections 78a.1 and 

78a.15(f) and (g) to the extent they include “common areas on a school’s property or a 

playground” and “species of special concern” as “public resources” and include 

“playground owners” as a “public resource agency”; (2) Section 78a.52a(c)(3) and 

Section 78a.73(c) and (d) to the degree they impose monitoring and remediation 

obligations on owners and operators with respect to wells in the area-of-review survey 
[J-73-2017] - 17

owned and/or operated by others; (3) Section 78a.59b(b) as to pre-existing 

impoundments (but not as to new impoundments) and 78a.59c, which by its terms only 

applies to operators using a centralized impoundment as of October 8, 2016; and (4) 

Section 78a.65(d) in its entirety. The order denied the Application in all other respects. 

See MSC, No. 573 M.D. 2016, Order, at 1-2 (Pa. Cmwlth. Nov. 8, 2016).

C. Appeal to this Court

Litigation of the Petition’s merits continues in the Commonwealth Court. In 

parallel with those proceedings, the Agencies appealed from the partial grant of 

preliminary injunctive relief, and this Court noted probable jurisdiction.

II. Arguments and Analysis

A. Trial court standard for interim relief

The Agencies generally contend that the Commonwealth Court did not utilize the 

correct standard for granting a preliminary injunction. They note that, when finally 

adjudicating the validity of a regulation adopted per an agency’s rule-making power,

courts use a three-part test whereby the regulation must be: (a) adopted within the 

agency’s statutory power; (b) issued pursuant to proper procedure; and (c) reasonable. 

See Brief for Appellants at 27 (quoting Tire Jockey Serv., Inc. v. DEP, 591 Pa. 73, 108, 

915 A.2d 1165, 1188 (2007)). Although the Commonwealth Court’s reasoning centered 

on the first element, the Agencies initially focus on the third prong, arguing that a 

regulation can only be deemed unreasonable if it was fashioned in bad faith, is arbitrary, 

or represents a gross abuse of discretion. See id. at 28. The Agencies continue by 

asserting, without reference to supporting authority, that courts should apply the same 

level of deference to an agency’s interpretation of its enabling statutes in reviewing a 
[J-73-2017] - 18

pre-enforcement preliminary injunction as would be warranted in the context of a postenforcement challenge. See id. at 29.

Based on these dual premises, the Agencies conclude (again without citation to 

authority) that, in assessing the clear-right-to-relief prerequisite for a preliminary 

injunction, the Commonwealth Court should have “required MSC to show (1) manifest 

error in the EQB’s interpretation of its statutory authority to promulgate the challenged 

Chapter 78a [r]egulations, (2) a manifest violation of a statutory procedure in 

promulgating the regulations, or (3) that the [a]gencies’ assertions that the regulations 

are reasonable were made in bad faith, purely arbitrary, or a manifest abuse of 

discretion.” Id.

The Agencies additionally fault MSC for failing to call witnesses at the preliminary 

injunction hearing. They also emphasize that the regulations were formulated during a 

six-year time period in which voluminous public comments – including comments from 

other state agencies, DEP’s Oil and Gas Technical Advisory Board, experts, 

stakeholders, and local governments – as well as data from the oil and gas industry

were received and taken into account, and that the regulations were published in the 

Pennsylvania Bulletin as an order of the EQB. See id. at 30-31.

MSC argues that the Agencies, throughout their brief, employ an incorrect 

statement of the deference owed to DEP’s interpretation of the law. MSC proffers that 

the Commonwealth Court utilized the proper standard when evaluating the elements for 

a preliminary injunction, and the Agencies overlay a framework more suited to a final 

merits assessment of the challenged regulations’ validity. See Brief for Appellee at 16-

17 (quoting Fischer v. DPW, 497 Pa. 267, 271, 439 A.2d 1172, 1174 (1982) (noting that, 

as a preliminary injunction “is designed to preserve the status quo pending final 
[J-73-2017] - 19

resolution of the underlying issues,” the clear-right prerequisite is not intended to require 

that a party seeking a preliminary injunction establish its claim absolutely)).

In this regard, MSC indicates that the three-prong test articulated by the 

Agencies will be applied later in the litigation when the Commonwealth Court decides 

the Petition’s merits, see id. at 17 (citing Rand v. State Bd. of Optometry, 762 A.2d 392, 

394 (Pa. Cmwlth. 2000)), but that for now, it was sufficient for the court to determine 

that there are substantial, unresolved legal questions. See id. MSC adds that, in all 

events, when applying the first (lawfulness) prong in the context of a challenge to 

legislative rulemaking, little deference is due to an agency with regard to its reading of 

the authorizing statute, since administrative agencies have no special expertise in the 

area of statutory interpretation.

The regulations presently at issue are legislative rules – meaning they establish a 

controlling standard of conduct. See Borough of Pottstown v. Pa. Mun. Ret. Bd., 551 

Pa. 605, 609, 712 A.2d 741, 743 (1998). Such regulations “enjoy a general 

presumption of reasonableness.” Id. (citations omitted). See generally Nw. Youth 

Svcs., Inc. v. DPW, 620 Pa. 140, 155-61, 66 A.3d 301, 310-13 (2013) (surveying the 

different types of agency rules and the deference judicially accorded to each). As MSC 

notes, however, and because legislative rulemaking “is ‘an exercise of legislative power 

by an administrative agency, pursuant to a grant of legislative power by the legislative 

body,’” Popowsky v. PUC, 589 Pa. 605, 630, 910 A.2d 38, 53 (2006) (quoting 

Rohrbaugh v. PUC, 556 Pa. 199, 208, 727 A.2d 1080, 1085 (1999)), a legislative rule is 

only valid if it falls within the scope of the rulemaking power granted by the General 

Assembly. See, e.g., Rand, 762 A.2d at 395 (invalidating an agency regulation that 

exceeded the scope of its legislatively-granted rulemaking powers).
[J-73-2017] - 20

In the context of a motion for a preliminary injunction, only a substantial legal 

issue need be apparent for the moving party to prevail on the clear-right-to-relief prong. 

See SEIU, 628 Pa. at 590-91, 104 A.3d at 506; Fischer, 497 Pa. at 271, 439 A.2d at 

1174.9 This implicates a less deferential standard relative to the agency’s interpretation 

of the governing statute than would be applicable to a trial court’s final merits 

determination.

B. Standard of appellate review

Appellate courts review a trial court order granting or denying a preliminary 

injunction for an abuse of discretion. See Brayman Constr. Crop. v. PennDOT, 608 Pa. 

584, 601, 13 A.3d 925, 935 (2011) (citing Summit Towne Ctr., Inc. v. Shoe Show of 

Rocky Mount, Inc., 573 Pa. 637, 645, 828 A.2d 995, 1000 (2003)). Insofar as issues of 

statutory interpretation are concerned, however, our review is de novo. See SEIU, 628 

Pa. at 591, 104 A.3d at 506. Additionally,

we do not inquire into the merits of the controversy, but only examine the 

record to determine if there were any apparently reasonable grounds for 

the action of the court below. Only if it is plain that no grounds exist to 

support the decree or that the rule of law relied upon was palpably 

erroneous or misapplied will we interfere with the [decree].

Brayman, 608 Pa. at 602, 13 A.3d at 935-36 (emphasis added) (quoting Roberts v. Bd. 

of Dirs. of Sch. Dist. of Scranton, 462 Pa. 464, 469, 341 A.2d 475, 478 (1975)).

 

9

 As an aside, we note that SEIU referenced Fischer for the position that the party 

seeking relief need only raise a substantial legal question regarding the parties’ rights. 

For its part, however, Fischer suggested that such precept only applies where: (a) there 

is a threat of irreparable harm; (b) the injunction simply restores the status quo; and (c) 

greater injury would result by refusing the injunction than by granting it. Regardless, 

any difference between these two formulations is presently immaterial, as the 

prerequisites mentioned in Fischer are satisfied with regard to the aspects of the 

Commonwealth Court’s order which we presently affirm.
[J-73-2017] - 21

C. Individual counts

Public resources (Count I)

(i) Playgrounds and common areas on a school’s property

The Agencies argue that the list of public resources appearing in Section 

3215(c), which relates to well-location restrictions, is open ended and that “common 

areas on a school’s property or a playground” and “species of special concern” are of 

the same class and kind as the items expressly enumerated in that subsection.

10

 They 

observe that these terms are defined in the regulations as follows:

Common areas of a school’s property -- An area on a school’s property 

accessible to the general public for recreational purposes. For the 

purposes of this definition, a school is a facility providing elementary, 

secondary or postsecondary educational services.

Playground – (i) An outdoor area provided to the general public for 

recreational purposes. (ii) The term includes community-operated 

recreational facilities.

25 Pa. Code §78a.1. The Agencies maintain that they articulated reasons the general 

public regularly uses playgrounds and common areas of a school’s property, and, 

 

10 The provision states:

(c) Impact.--On making a determination on a well permit, the department 

shall consider the impact of the proposed well on public resources, 

including, but not limited to: (1) Publicly owned parks, forests, game lands 

and wildlife areas. (2) National or State scenic rivers. (3) National natural 

landmarks. (4) Habitats of rare and endangered flora and fauna and other 

critical communities. (5) Historical and archaeological sites listed on the 

Federal or State list of historic places. (6) Sources used for public drinking 

supplies[.]

58 Pa.C.S. §3215(c).
[J-73-2017] - 22

moreover, such resources “share several similar characteristics with parks.” Brief for 

Appellants at 36.

The Commonwealth Court did not disagree. It observed that the Agencies’

interpretation of the statute could be overly broad as it might justify the inclusion of such 

items as shopping centers, movie theaters, sports stadiums, and amusement parks, all 

of which, per the doctrine of ejusdem generis, do not appear to be contemplated by 

Section 3215(c). See MSC, No. 573 M.D. 2016, slip op. at 17 n.11. The court 

additionally noted that the Environmental Rights Amendment relates to the protection of 

“natural, scenic, historic and esthetic values of the environment,” and obligates the 

Commonwealth to conserve “public natural resources.” PA. CONST. art. I, §27 

(emphasis added). It raised the possibility that the General Assembly intended to 

conform the list of items appearing in Section 3215(c) roughly to the scope of protection 

reflected in Article I, Section 27. Under these circumstances, the court concluded a 

substantial question was raised whether it would be proper to interpret Section 3215(c) 

as authorizing regulations which subsume private resources open to the public, such as 

playgrounds and common areas of schools, which are not inherently natural, scenic, 

historic, or esthetic. See MSC, No. 573 M.D. 2016, slip op. at 17-18 & n.10.

In our view, these observations support the court’s determination that a 

substantial legal question was raised in relation to the challenged regulations’ inclusion 

of playgrounds and school common areas as “public resources” and, concomitantly, the 

owners of these items as “public resource agencies.” That being the case, there is no 

basis to disturb the Commonwealth Court’s determination that MSC established the 

clear-right requirement relative to this aspect of Count I.11

 

11 In dissent, Justice Donohue expresses that privately-owned recreational lands are “of 

the same kind or class as publicly-owned parks.” Concurring and Dissenting Opinion, 

slip op. at 6 (internal quotation marks and citation omitted). She also indicates that no 

(continued...)
[J-73-2017] - 23

As noted, the court deemed the irreparable-harm prong to be satisfied due to, 

among other things, the cost of compliance. According to the RAF, the total cost of 

compliance will be $888,000 per applicant. See RAF at 87, reprinted in R.R. 842a. 

Although some of this cost would be incurred relative to public resources other than 

playgrounds and school common areas, it is undisputed that the addition of those two 

items accounts for at least part of the cost. Further, since the Agencies enjoy sovereign 

immunity, if the challenged regulations are ultimately held invalid, that portion of the cost 

would not be recoverable by MSC members. Thus, the court reasonably found that 

MSC carried its burden to demonstrate irreparable harm. See generally Boykins, 128 

Pa. Cmwlth. at 158, 562 A.2d at 1029 (“The inability to be adequately compensated by 

an award of damages constitutes irreparable harm.” (citation omitted)).

As well, given the Agencies’ failure to produce evidence of the harm they would 

suffer if the challenged provisions were enjoined preliminarily,12 the court reasonably 

 

(...continued)

party has compellingly argued why “impacts on [school common areas and 

playgrounds] should not be considered in equal measure before the DEP issues a 

permit[.]” Id. at 8.

Our task is not to formulate environmental policy, but to evaluate whether the 

Commonwealth Court reasonably discerned the existence of a substantial question 

concerning whether the term “public resources,” as it appears in Section 3125(c), is 

sufficiently expansive to include privately owned land open to the public. In its merits 

resolution, the Commonwealth Court (and/or this Court) may ultimately agree with 

Justice Donohue’s position that such properties are encompassed by Section 3215(c). 

In the interim, however, we believe there are “apparently reasonable grounds” to 

support the Commonwealth Court’s determination that a substantial legal issue exists.

12 In this respect the court observed that, while the specific regulations in issue are 

designed to provide new and greater environmental protections, the Agencies did not 

supply evidence that preliminarily enjoining their enforcement would “harm any person, 

entity, or the public in general.” MSC, No. 573 M.D. 2016, slip op. at 19 n.13.
[J-73-2017] - 24

concluded that, for purposes of the motion, greater injury would result from refusing the 

injunction than from granting it.

13

 We also see no basis to disagree with the court’s 

explanation that issuing the preliminary injunction, narrowly tailored as appropriate, 

would not adversely affect the public interest. Finally, the court reasonably concluded 

that a preliminary injunction would restore the parties to the status quo ante, namely,

the absence of any regulation subsuming playgrounds and school common areas within 

the notice, comment, and mitigation scheme of 25 Pa. Code §78a.15(f).

(ii) Species of special concern

As for “species of special concern,” the Agencies observe, first, that Section 

3215(c)(4) indicates public resources include not only habitats of rare and endangered 

species, but also “other critical communities” – a phrase that must be given some 

meaning. They add that the inclusion, by regulation, of “species of special concern” 

within the scope of that phrase comports with a long-standing practice whereby well 

permit applicants use the PNDI database to enable DEP to consider impacts on species 

of special concern in analyzing applications. See Brief for Appellants at 38-39.14

 

13 MSC asserts the Agencies have waived, by omitting from their brief, any challenge to 

the preliminary injunction factors dealing with the weighing of harms as between the 

parties, and the relief being reasonably suited to abate the offending activity. See Brief 

for Appellee at 30-31. The Agencies reply that they have not waived any argument 

regarding harm to the public, as MSC bore the burden of proof on all elements at the 

preliminary injunction stage. See Reply Brief for Appellants at 6-7, 22. This argument 

is non-responsive as it relates to a different factor. As well, the Agencies overlook that, 

as appellants, they carry the burden to demonstrate error by the Commonwealth Court.

14 Section 78a.1 defines other critical communities as follows:

(i) Species of special concern identified on a PNDI [Pennsylvania Natural 

Diversity Inventory] receipt, including plant or animal species: (A) In a 

proposed status categorized as proposed endangered, proposed 

threatened, proposed rare or candidate. (B) That are classified as rare or 

tentatively undetermined.

(continued...)
[J-73-2017] - 25

MSC suggests that the Agencies’ argument is misleading. It maintains that, 

while use of the PNDI database to identify threatened or endangered species may be a 

longstanding practice, imposition of mandatory protections for “species of special 

concern” based on a PNDI receipt is new. See Brief for Appellee at 23.15 It observes

that, per Secretary Perry’s testimony, the designation of a species as threatened or 

endangered proceeds from a “rigorous process” which includes notice-and-comment 

rulemaking, N.T., Oct. 25, 2016, at 153, whereas the same is not true of species of 

special concern. MSC notes Secretary Perry observed that species of special concern 

are placed in the PNDI database and designated as such by the jurisdictional agencies, 

that is, the Agencies with “statutory authority to protect those species,” including the 

Department of Conservation and Natural Resources, the Game Commission, the Fish 

and Boat Commission, and the Pennsylvania office of the United States Fish and 

Wildlife Service. Id. at 153-54. MSC also emphasizes that Secretary Perry confirmed 

the rule requiring consideration of species which are neither endangered nor threatened 

was adopted in 2013 pursuant to a departmental policy, which cannot create law, but is 

now mandatory under the challenged regulation. See id. at 152-54, 159-60.

We need not address whether or how a regulation may make obligations 

imposed on an applicant depend on the contents of a database which is updated over 

 

(...continued)

(ii) The term does not include threatened and endangered species.

25 Pa. Code §78a.1. A PNDI receipt, in turn, is defined as “[t]he results generated by 

the [PNDI] Review Tool containing information regarding threatened and endangered 

species and other critical communities.” Id.

15 In its Petition, MSC alleged that, because the PNDI database contents change from 

day to day, the information on a receipt – including the list of species of special concern 

– can vary on a daily basis. See Petition ¶44(h).
[J-73-2017] - 26

time by other agencies. In finding a substantial legal question, the Commonwealth 

Court did not focus on that aspect of the challenged provision. Rather, after indicating 

that species of special concern, as a resource classification, falls below threatened or 

endangered, see MSC, No. 573 M.D. 2016, slip op. at 18 – a proposition that is not in 

dispute – the court centrally highlighted that such classification is not the result of public 

rulemaking and “does not have any special protection afforded under the laws of this 

Commonwealth that DEP is entrusted to enforce.” Id. The Agencies do not contradict 

the Commonwealth Court’s essential observation in this regard, opting instead to 

highlight their general entitlement to deference and the presence of the statutory 

phrase, “other critical communities.” Thus, the Agencies’ argument is not responsive to 

the Commonwealth Court’s reasoning, which, again, relates to whether the Agencies 

are authorized by statute to include within the permitting process a categorization that 

no statute expressly obligates DEP to protect.

Without deciding finally whether the absence of statutory authority requiring DEP 

to protect species of special concern is a valid basis to conclude that the “other critical 

communities” necessarily excludes that category from the scope of Section 3215(c) of 

Act 13, we agree with the Commonwealth Court that, at a minimum, a substantial legal 

issue on this point has been raised. Accordingly, we affirm its determination that MSC 

has satisfied the clear-right element for preliminary injunctive relief.16

 

16 The dissent characterizes MSC’s argument as stating that the PNDI’s “use to identify 

species of special concern is new,” and refers to testimony concerning a “long-standing 

practice” of using the PNDI to identify such species. Concurring and Dissenting 

Opinion, slip op. at 8. The dissent concludes that it was unreasonable for the 

Commonwealth Court to find a substantial legal issue. See id. at 9. Respectfully, the 

dissent mischaracterizes both the issue and MSC’s argument. As discussed, what is 

“new” is the imposition of mandatory protections for species of special concern based 

on a PNDI receipt, and the issue arises because their regulatory designation as “other 

critical communities” did not proceed from notice-and-comment rulemaking.
[J-73-2017] - 27

Further, under the regulations challenged in Count I, the inclusion of species of 

special concern in the “public resource” category triggers the same notice, comment, 

and mitigation obligations for the well applicant as were applicable to playgrounds and 

school common areas. See 25 Pa. Code §§78a.1, 78a.15(f), (g)(2). The analysis given 

above concerning the other preliminary injunction factors applies equally to the speciesof-special-concern facet of MSC’s challenge. That being the case, the Commonwealth 

Court had “apparently reasonable grounds” for its action in granting MSC a closely 

tailored preliminary injunction as to Count I.

Area of review (Count II)

In relation to Count II, as discussed, the Commonwealth Court rejected many of 

MSC’s challenges to the area-of-review regulations, see 25 Pa. Code §§78a.52a, 

78a.73(c) and (d), which require well operators to identify, monitor, and remediate all 

active, inactive, orphan, abandoned, and plugged-and-abandoned gas and oil wells 

within a certain distance from the operator’s well bore. The court did, however, grant a 

preliminary injunction with regard to the monitoring and remediation provisions insofar 

as they gave rise to significant implementation issues by requiring well operators to 

“trespass” onto others’ lands. MSC, No. 573 M.D. 2016, slip op. at 22.

The Agencies posit that the Commonwealth Court erred by failing to recognize 

their broad statutory authority under Act 13 and the Clean Streams Law to protect the 

waters of the Commonwealth and the public from the impacts of drilling – powers which 

they exercised by promulgating the area-of-review regulations. They refer to Section 

3274 of Act 13 in particular as giving the EQB authority to promulgate regulations 

necessary to accomplish such objectives. See Brief for Appellants at 44 (citing 58 

Pa.C.S. §3274 (stating that the EQB “shall promulgate regulations to implement” 

Chapter 32, relating to oil and gas)). The Agencies also note the Clean Streams Law 
[J-73-2017] - 28

gives DEP discretion to order landowners to provide access to their land whenever a 

condition on that land is causing pollution or a danger of pollution. See id. at 45 

(quoting 35 P.S. §691.316).

In terms of liability for environmental harms, the Agencies observe that the Clean 

Streams Law provides an independent basis for liability and that such liability can be 

triggered by causation alone, as opposed to land ownership, thereby undercutting the 

Commonwealth Court’s concern that the regulations are inconsistent with Sections 3220 

and 3271 of Act 13. See id. at 46 (citing Commonwealth v. Harmar Coal Co., 452 Pa. 

77, 306 A.2d 308 (1973)). The Agencies also advert to the large number of abandoned 

oil and gas wells in this state, the many documented stray-gas-migration investigations 

that have taken place since 1984, and “geyser-like events” and polluted groundwater 

that can result from communication between an active unconventional well and an 

existing oil or gas well. Id.

17

 Overall, in this regard, the Agencies fault the 

Commonwealth Court for what they view as an overly narrow interpretation of their 

authority under Act 13 and the Clean Streams Law. See id. at 47.

Notwithstanding the Agencies’ arguments, there are reasonable grounds for the 

Commonwealth Court’s determination that a substantial legal question was raised in 

terms of the monitoring and remediation obligations imposed by the regulations on well 

operators relative to wells located on other persons’ property. The provision of the 

Clean Streams Law giving DEP power to require entry onto others’ land is not only 

discretionary, it is only triggered by actual pollution or a danger of pollution. The new 

regulatory mandate to enter onto others’ land, visually monitor their wells, and cap their 

wells if necessary, is far broader. Indeed, the regulations dictate that all identified wells 

 

17 Secretary Perry testified that “the act of fracking a well” can only cause groundwater 

contamination when a well-communication incident occurs. N.T., Oct. 25, 2016, at 116.
[J-73-2017] - 29

be visually monitored during stimulation activities, although it is not evident how this 

may be achieved without traversing the lands of others. The Agencies have not brought 

to our attention a legal basis on which DEP would be authorized to require access onto 

private land in the case of an inaccessible well which posed no apparent danger of 

pollution. Further, counsel for the Agencies conceded at the hearing that DEP might not 

have the authority to require anyone to allow access to their property for well-monitoring 

purposes. See N.T., Oct. 26, 2016, at 358.18

Nor is Harmar Coal on point. In that matter this Court consolidated two appeals 

dealing with the obligation of a coal mine operator to treat acid mine drainage (a type of 

polluted water) before discharging it from its own mine into Commonwealth waters. In 

one appeal, some of the drainage had its source in adjacent mines and flowed by 

gravity into the subject mine. In the other, it had to be pumped out of an adjacent mine 

to avoid destruction of a barrier between the two. See Harmar Coal, 452 Pa. at 81, 306 

A.2d at 311. In both instances, the statutory language was applicable inasmuch as it 

covered pollution discharges from the subject mine or from any other mine as needed to 

enable operation of the subject mine. See id. at 100, 306 A.2d at 321. Notably, the 

 

18 The dissent seeks to circumvent this problem by pointing to evidence that pollution 

could result from a well-communication incident. See Concurring and Dissenting 

Opinion, slip op. at 12. It bears noting that the Commonwealth Court acknowledged 

such potentiality and declined to find a substantial legal issue with regard to it. See 

MSC, No. 573 M.D. 2016, slip op. at 24. Instead, the court focused on issues arising 

from the face of the regulation when considered in light of governing statutory 

provisions. As discussed, these concerns include such items as: whether a well 

operator may access and monitor every well owned by others and located on another’s 

property within the area-of-review survey; and whether Section 78a.73(d) is consistent 

with Act 13’s well-plugging requirements, which mandate that well operators plug their 

own wells. See id. at 26. Such issues are not resolved by observing that it is possible 

for a well-communication incident to occur and to cause pollution.
[J-73-2017] - 30

controversy did not relate to the entry by a mine operator onto the property of another 

absent ongoing pollution or a known danger – or for visual monitoring purposes.

Given the above, we conclude there are apparently reasonable grounds to 

support the court’s determination that MSC raised a significant legal question in regard 

to the implementation of the area-of-review requirements.

In terms of the balancing-of-harms inquiry, the Commonwealth Court’s analysis is 

somewhat conclusory. See MSC, No. 573 M.D. 2016, slip op. at 26. Unfortunately, 

however, the parties’ arguments are not entirely helpful as they are not directly apposite 

to the grant of preliminary relief. MSC notes that the RAF reflects an overall cost to 

industry of $11 million to comply with the area-of-review regulations, and adds that 

these costs will be unrecoverable if the regulations are ultimately deemed invalid. Still, 

that figure appears to be the total cost going forward indefinitely, not the probable cost 

to be incurred pending a final ruling on the merits. Likewise, the Agencies do not give 

an expected cost which takes into account the limited timeframe involved. Rather, they 

maintain there is a non-zero probability of communication between an unconventional 

well and an existing well, which, if it were to occur, would result in water pollution and 

substantial cleanup costs.

If such incidents were frequent, the Agencies’ argument would carry more 

weight. According to Secretary Perry, however, they are “not a common occurrence.” 

N.T., Oct. 25, 2016, at 120. Even accepting that the cleanup effort ensuing from a 

single occurrence would be financially burdensome, see id., absent some indication that 

there is more than a de minimus probability the risk will materialize before MSC’s claims 

are decided (discussed below), we cannot say that the Commonwealth Court lacked 

any reasonable basis for its conclusion regarding the balancing of harms.
[J-73-2017] - 31

As for adverse effects to the public interest, the Agencies, again, portray that 

well-communication incidents tend to cause significant environmental harms, 

particularly if the communication is between an unconventional well and a conventional 

one. See Brief for Appellants at 48. It is self-evident that significant environmental 

harms have an adverse effect on the public interest. Again, however, such effects only 

arise from an actual incident. MSC suggests that the record only supports a low 

probability of this occurring. It argues that, with over 9,000 unconventional wells having 

been drilled in Pennsylvania, see 46 Pa. Bull. No. 41, at 6463 (Oct. 8, 2016), reprinted 

in R.R. 694a (reflecting a figure of 9,486), the record references only five wellcommunication incidents and of those, only one was between an unconventional well 

and a conventional one. See RAF at 89, reprinted in R.R. 844a.19

It is not clear from the record whether the five episodes mentioned in the RAF 

were intended to comprise all such events that have occurred, as they are couched as 

incidents which DEP chose to analyze for cost-comparison purposes. See id. In their 

reply brief, though, the Agencies do not contradict MSC’s assertion that these are the 

only five which have occurred since unconventional well drilling began, and moreover, 

the Agencies do not point to any aspect of the record suggesting that more than five 

incidents have occurred. Under these circumstances, an apparently reasonable basis 

exists for the Commonwealth Court to conclude that, if a preliminary injunction were to 

issue, the expected effect on the public interest would be slight due to a low probability 

of a well-communication incident occurring within the limited timeframe involved.20

 

19 More generally, Secretary Perry testified that communication into abandoned wells is 

of substantially greater concern for conventional, than unconventional, drillers. See

N.T., Oct. 25, 2016, at 116-17.

20 The dissent appears to take the position that the public interest is adversely affected 

so as to defeat preliminary injunctive relief whenever there is any possibility of harm to 

(continued...)
[J-73-2017] - 32

Finally, we see no basis to disagree with the court’s suggestion that the 

preliminary injunction, narrowed so that it applies only to wells located on the lands of 

others, restores the parties to their status quo ante. See MSC, No. 573 M.D. 2016, slip 

op. at 26-27.

Impoundments (Count IV)

Relative to Count IV, the Commonwealth Court preliminarily enjoined, as applied 

to existing impoundments, Sections 78a.59b(b) and 78a.59c. Those provisions relate to 

well-development impoundments and centralized impoundments, respectively. See 

supra note 7. As to the latter, Section 78a.59c indicates centralized impoundments 

must be closed or re-permitted by October 8, 2019, in compliance with the requirements 

of Title 25, Subpart D, Article IX of the Pennsylvania Code, which relate to residual 

waste management and were promulgated under SWMA, among other laws. See 25 

Pa. Code §78a.59c.

For its part, Section 78a.59b(b), relating to well-development impoundments, has 

two parts. It states that operators of unconventional wells must register existing welldevelopment impoundments with DEP. In pertinent part, it also mandates that any such 

 

(...continued)

the environment, no matter how remote or speculative. See Concurring and Dissenting 

Opinion, slip op. at 13 (suggesting a “no effect” test which would not countenance even 

minimal or speculative risks). Other courts have eschewed that stance and instead 

have considered the probable consequences of an injunction. See, e.g., Stormans, Inc. 

v. Selecky, 586 F.3d 1109, 1139 (9th Cir. 2009) (explaining that, in analyzing the publicinterest prong for purposes of a preliminary injunction, courts should not consider 

effects that are remote or speculative, but should “weigh the public interest in light of the 

likely consequences of the injunction” (emphasis in original)). Although the dissent 

quotes general language from SEIU reciting the standard formulation for the sixth prong 

of the governing preliminary-injunction standard, the SEIU Court had no occasion to 

consider whether remote or speculative harms operate to defeat entitlement to 

preliminary injunctive relief.
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impoundments be upgraded to use a synthetic, impervious liner and be surrounded by a 

fence (unless an individual is continually present) to prevent unauthorized acts by third

parties and damage from wildlife. See 25 Pa. Code §78a.59b(b), (d), (e).

The primary substantive basis on which interim relief was granted pertains to the 

circumstance that existing impoundments were built to DEP standards extant at the 

time, and there has been no change in the governing statutory law which would

authorize DEP to retroactively change such standards for impoundments built years ago 

in reliance on DEP’s prior authorization. See MSC, No. 573 M.D. 2016, slip op. at 32.

Presently, the Agencies do not argue that the authorizing statutes have changed. 

Instead, they proffer that they retain the authority to change impoundment requirements

via the rulemaking process and apply the new requirements retroactively to existing 

impoundments without violating due process. In this regard, the Agencies distinguish 

Young J. Lee, which the Commonwealth Court quoted, noting that that dispute involved 

agency action which was adjudicative, rather than legislative, in nature. MSC responds 

that the Commonwealth Court was appropriately skeptical that the Agencies had newlydiscovered powers under statutes that had been on the books for many years and, as 

such, correctly held that a substantial legal question was raised as to the legality of the 

regulations. Their argument is consistent with the Commonwealth Court’s expression 

that “Secretary Perry credibly testified that these regulations stem not from a change in 

the law, but from a change in DEP’s interpretation of long-standing law.” MSC, No. 573 

M.D. 2016, slip op. at 32.

(i) Well-development impoundments

There is little in the record to suggest any reinterpretation of a statute occurred 

with regard to well-development impoundments, which previously were minimally 

regulated and were only subject to permitting if at least five acres of earth would be 
[J-73-2017] - 34

disturbed. See Brief for Appellants at 14-15 (providing background). Rather, Secretary 

Perry explained that, given the sheer size of the new well-development impoundments 

used for unconventional wells – ranging up to 30 million gallons – they are essentially in 

the nature of a dam and, as such, are appropriately regulated under the Dam Safety 

and Encroachments Act (“DSEA”).

21

 See N.T., Oct. 25, 2016, at 128. According to the 

record, although these impoundments generally store freshwater, the water may at 

times include other fluids used in well development which are not indigenous to the local 

watershed, the escape of which can pose a threat of pollution to the waters of the 

Commonwealth. See RAF at 31, reprinted in R.R. 786a.22

The Commonwealth Court did not identify a substantial legal issue with regard 

DSEA’s authorization to regulate these impoundments. As noted, the court proceeded 

from the supposition that the Agencies’ interpretation of governing law had changed – a 

premise that does not apply with regard to well-development impoundments. Absent 

any particularized contention tending to cast doubt upon the Agencies’ position that 

DSEA allows for such regulations, see, e.g., 32 P.S. §693.5 (generally authorizing the 

EQB to adopt regulations relating to dams, reservoirs, water obstructions, and 

encroachments), there is little basis in the present record to believe the Agencies lacked 

the authority to promulgate Section 78a.59b(b).

Moreover, by enjoining Section 78a.59b(b) without distinguishing between its two 

parts, the court stayed enforcement of the well-registration requirement, which it never 

 

21 Act of Nov. 26, 1978, P.L. 1375, No. 325 (as amended 32 P.S. §§693.1–693.27).

22 The Agencies now also allow operators to store and use mine-influenced water in well 

development impoundments, see 25 Pa. Code §78a.59b(h), although it is unclear 

whether operators requested such ability or find it desirable. The Agencies view such 

practice as beneficial because it reduces the consumption of fresh water from the 

Commonwealth’s waterways. See RAF at 32, reprinted in R.R. 787a.
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discussed. Also, we are not convinced by the court’s reliance on Young J. Lee for 

principles sounding in procedural due process. Instead, we agree with the Agencies 

that that dispute was unlike the present one insofar as it dealt with adjudicative agency 

action, namely, the revocation of a license. The promulgation of legislative regulations 

involves procedural mechanisms absent from adjudications and, as such, is materially 

different for due process purposes. See Small v. Horn, 554 Pa. 600, 613, 722 A.2d 

664, 671 (1998) (“It is well settled that procedural due process concerns are implicated 

only by adjudications, not by state actions that are legislative in character.” (footnote 

and citation omitted)). Nor does the fact that the regulation may affect existing welldevelopment impoundments alone make it constitutionally unsound. See generally

Harmar Coal, 452 Pa. at 92, 306 A.2d at 316-17 (observing that the state’s police 

power, including regulations maintaining the state’s water resources, may be applied to 

business operations even where doing so causes “the imposition of new costs” 

(citations omitted)).

Accordingly, we conclude that, at this stage, MSC has not carried its burden to 

demonstrate a clear right to relief as to Section 78a.59b(b).

(ii) Centralized impoundments

The regulation governing centralized impoundments presents a different

situation. Secretary Perry testified that the Agencies had not previously regulated them 

under SWMA on the view that they fell under SWMA’s exemption for drill cuttings from 

well sites. See 35 P.S. §6018.103 (defining solid waste to exclude drill cuttings from 

well sites and, in turn, defining drill cuttings broadly to include rock cuttings and any 

“related mineral residues created during the drilling of wells” which are disposed of at 

the well site). He then provided an explanation which, although not entirely clear, 

appears to reflect that, given DEP’s experience with leakage from such impoundments, 
[J-73-2017] - 36

the Agencies reconsidered the issue and concluded that centralized impoundments 

were not, in fact, located at well sites, meaning they could be regulated under SWMA; 

this was true because, as noted, SWMA’s definition of “drill cuttings” only encompasses 

well-drilling waste processed at the well site. See N.T., Oct. 25, 2016, at 134-35. Thus, 

Secretary Perry indicated that that the Agencies’ current position was that their prior 

interpretation, whereby centralized impoundments escaped SWMA regulation, “was an 

error.” Id. at 135. It is on this basis that the Agencies now claim authority to require 

centralized impoundments to “operate in the same manner as all other residual waste 

transfer facilities located throughout the Commonwealth.” Brief for Appellants at 16.

We do not doubt that leaks from centralized impoundments are potentially 

harmful to the environment. For present purposes, however, it is not apparent how 

such occurrences can support the concept that the impoundments are not part of the 

associated well site for SWMA purposes, whereas they were part of the well site before 

it was known that they could leak. This, in turn, gives rise to a substantial legal issue 

concerning the validity of the Agencies’ new interpretation of the scope of SWMA’s 

exclusion of “drill cuttings” from the definition of solid waste. Thus, the Commonwealth 

Court had an apparently reasonable basis to conclude that MSC had raised a 

substantial legal question concerning whether SWMA authorizes the promulgation of 

Section 78a.59c.

As the interim relief was limited to existing centralized impoundments that would 

otherwise have to be closed or retrofitted, the court left Section 78a.59c in effect relative 

to any new impoundments. Thus, any harm to the Agencies and the public interest is 

limited to existing impoundments pending a final resolution on the merits. In terms of 

irreparable harm from refusing the injunction, the Agencies estimated that well 

operators would incur costs between $39,000,000 and $65,000,000 to retrofit existing
[J-73-2017] - 37

centralized impoundments. See RAF at 98, reprinted in R.R. 853a.23 Therefore, as 

concerns centralized impoundments, the Commonwealth Court had an apparently

reasonable basis to conclude that the injury to MSC from denying the injunction was 

greater than the harm to the Agencies from granting it, and that granting interim relief 

would not adversely affect the public interest.

Site restoration (Count V)

As discussed, the Commonwealth Court rejected most of MSC’s claims 

regarding the new site-restoration regulations, see 25 Pa. Code §78a.65, except that it 

granted preliminary relief with respect to Section 78a.65(d), which relates to disturbed 

areas of land that are not included in a restoration plan and impervious surfaces that 

remain in the post-drilling timeframe. The court found that a substantial legal question 

had been raised as to whether that provision abrogated an exemption in the Clean 

Streams Law. See MSC, No. 573 M.D. 2016, slip op. at 38 (“To the extent Section 

78a.65(d) abrogates any requirements or exemptions in [t]he Clean Streams Law, MSC 

has raised a substantial legal question over its validity.”).

The Agencies fault the court for finding a potential conflict between Section 

78a.65(d) and the Clean Streams Law, since the identified potential conflict is not with 

the enactment itself but with Section 102.8(n), a regulation promulgated pursuant to it. 

 

23 The Agencies object that there is no evidence that the monetary cost of denying the 

injunction would be incurred by MSC members because MSC did not prove that any of 

its members operate existing centralized impoundments. This argument is waived as 

the Agencies did not advance it before the Commonwealth Court, see MSC v. DEP & 

EQB, No. 573 M.D. 2016, Brief in Opposition to Application for Expedited Special Relief, 

at 36-40, and effectively assumed that MSC members would be affected. See, e.g., id.

at 38 (referring to a three-year sunset provision for decommissioning centralized 

impoundments and proffering that during that period “MSC members can use these 

impoundments and may even apply for permission to keep using them”).
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The Agencies argue, as well, that Section 78a.65(d) does not conflict with the 

regulation. Rather, they maintain that, as expressed in the RAF, the purpose of Section 

78a.65(d) is merely “to provide clarity between site restoration under Chapter 78[a] and 

compliance with Chapter 102.” RAF at 38, reprinted in R.R. 793a, quoted in Brief for 

Appellants at 59 (alteration supplied by Appellants).

24

 Separately, they also proffer that, 

even if an irreconcilable conflict existed between the two regulations, Section 78a.65(d) 

would nonetheless be enforceable as Section 102.8(n) is a general provision, whereas 

Section 78a.65(d) is a special provision enacted later in time.

In response, MSC highlights that Act 13 requires erosion and sediment control 

measures to be implemented in accordance with the Clean Streams Law. See Brief for 

Appellee at 51 (citing 58 Pa.C.S. §3216). MSC continues that “Section 78a.65(d) 

cannot ‘trump’ the Cleans Streams Law regulation,” id., and argues that the mere 

possibility of a conflict is sufficient to raise a substantial legal issue for preliminary 

injunction purposes. Notably, MSC does not reference any provision of the Clean 

Streams Law with which Section 78a.65(d) is purportedly in conflict.

 

24 The RAF’s explanation in this regard elaborates that Section 78a.65(d) is

needed to distinguish between (1) “areas not restored” – areas not 

included on the restoration plan and other remaining impervious areas and 

(2) areas restored to meadow in good condition or better or areas that 

otherwise incorporate antidegradation best available combination of 

technologies (ABACT) or nondischarge PCSM best management 

practices (BMPs). “Areas not restored” do not fall within the provisions in 

§102.8(n) and therefore must meet the requirements, inter alia, of 

§102.8(g). “Areas not restored” include areas where there are permanent 

structures or impervious surfaces, therefore runoff produced from these 

areas must be tributary to permanent PCSM BMPs to ensure the runoff 

will be managed in accordance with the requirements of §102.8.

Id.
[J-73-2017] - 39

Unlike with some of the prior counts, the Commonwealth Court’s grant of partial 

interim relief as to Count V was not based on any identified deficiency in the Agencies’

statutory authorization to promulgate the rule in question. Rather, the court discerned 

that a potential conflict existed between Section 78a.65(d) and either the Clean Streams 

Law or Section 102.8(n)’s limited exemption from compliance with Section 102.8(g)’s

additional requirements for a PCSM developed pursuant to the Clean Streams Law.

As we read the two regulatory provisions, it does not appear that a conflict exists. 

Section 78a.56(d), on its face, only applies to impervious surfaces and disturbed areas 

which are not included in a site restoration plan, whereas the exemption reflected in 

Section 102.8(n) applies to a certain portion of a site restoration plan. Additionally, no 

Clean Streams Law provision has been identified that may be in conflict with Section 

78a.65(d). At most, there may be an incongruity between two regulations – Sections 

102.8(n) and 78a.65(d) – but only in the sense that the latter narrows the scope of 

circumstances in which the former applies. This in itself would be insufficient to show 

that Section 78a.65(d) is in conflict with (or unauthorized by) a legislative enactment.

Even if we assume, for decisional purposes, that an irreconcilable conflict exists

between the two regulations, it is clear that Section 78a.65(d) must prevail. As the 

Agencies point out, Section 102.8(n) applies generally to a number of regulated 

activities that require site restoration, whereas Section 78a.65(d) applies specifically to 

unconventional gas well sites. Further, Section 78a.65(d) was enacted later in time 

than Section 102.8(n). Under these circumstances, Section 78a.65(d), being more 

specific, takes precedence over Section 102.8(n). See 1 Pa.C.S. §1933 (reflecting that, 

with an irreconcilable conflict between a general statute and a special statute enacted 

later in time, the special statute prevails over – and is construed as an exception to –

the general one). See generally Saturday Family LP v. Commonwealth, 148 A.3d 931, 
[J-73-2017] - 40

935 (Pa. Cmwlth. 2016) (indicating that the rules of statutory construction apply to 

regulations in the Pennsylvania Code).

Accordingly, we conclude that MSC has not demonstrated a clear right to relief in 

relation to Section 78a.65(d).

D. Alleged drafting errors and overbreadth of the order

Appellants raise two additional issues. They indicate that the Commonwealth 

Court’s order refers to the wrong section numbers of some of the regulations being 

preliminarily enjoined due to typographical errors. Second, they assert that the relief 

ordered in Count IV, relating to impoundments, was overbroad in that it failed to leave in 

place the mandate that well operators register well-development impoundments with 

DEP – an aspect of Section 78a.59b(b) which was not challenged. See Brief for 

Appellants at 64-65.

Both issues are moot. The Commonwealth Court amended its order to address 

the drafting errors Appellants have identified. Indeed, Appellants include the amended 

order (in which the typographical errors are corrected) as an appendix to their brief. In 

terms of the court’s failure to leave in place the impoundment-registration provision, any 

such omission on the court’s part is now immaterial in light of our decision to reverse the 

order insofar as it enjoins enforcement of Section 78a.59b(b).

III. Conclusion

For the reasons given above, we affirm in part and reverse in part the order of 

the Commonwealth Court. We affirm the grant of preliminary injunctive relief as to 

Counts I and II. As for Count IV, we affirm the grant of relief as to Section 78a.59c, but 

reverse the grant of relief as to Section 78a.59b(b). Finally, we reverse the grant of 

preliminary injunctive relief as to Count V.
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Justices Baer, Todd, Dougherty, Wecht and Mundy join the opinion.

Justice Donohue files a concurring and dissenting opinion.