IN THE COMMONWEALTH COURT OF PENNSYLVANIA

Pennsylvania Independent Oil & Gas :

Association, Pennsylvania Grade :

Crude Oil Coalition, and Pennsylvania :

Independent Petroleum Producers :

Association, :

:

Petitioners :

:

 v. : No. 574 M.D. 2022

: Submitted: December 6, 2023

Department of Environmental :

Protection of the Commonwealth of :

Pennsylvania and Environmental :

Quality Board of the Commonwealth :

of Pennsylvania, :

:

Respondents :

BEFORE: HONORABLE RENÉE COHN JUBELIRER, President Judge

HONORABLE PATRICIA A. McCULLOUGH, Judge

HONORABLE ANNE E. COVEY, Judge

HONORABLE MICHAEL H. WOJCIK, Judge

HONORABLE ELLEN CEISLER, Judge

HONORABLE LORI A. DUMAS, Judge

HONORABLE STACY WALLACE, Judge

OPINION NOT REPORTED

MEMORANDUM OPINION 

BY JUDGE WOJCIK FILED: April 16, 2024

Before this Court, in our original jurisdiction, are the Preliminary 

Objections (POs) of the Commonwealth of Pennsylvania, Department of 

Environmental Protection (DEP), and Environmental Quality Board (EQB) 
2

(collectively, the Agencies) to the Pennsylvania Independent Oil & Gas Association, 

Pennsylvania Grade Crude Oil Coalition, and Pennsylvania Independent Petroleum 

Producers Association’s (collectively, Petitioners) Petition for Review in the Nature 

of a Complaint for Declaratory Relief (PFR) challenging the promulgation of the 

emergency-certified final-omitted “Control of VOC[1] Emissions from Conventional 

Oil and Natural Gas Sources” (Conventional VOC Regulation). For the reasons that 

follow, we overrule the Agencies’ POs. 

I. Background

Petitioners, which are trade organizations representing conventional oil 

and natural gas producers, filed this action pursuant to the Declaratory Judgments 

Act (DJA), 42 Pa. C.S. §§7531-7541, seeking a determination of legal rights and 

obligations with regard to the Agencies’ rulemaking and the adoption of the 

emergency-certified final-omitted Conventional VOC Regulation, which went into 

effect on December 2, 2022. The Agencies promulgated the Conventional VOC 

Regulation pursuant to their authority under the Air Pollution Control Act2to 

implement standards set forth in the federal Clean Air Act.3 The Clean Air Act 

required States to establish “reasonably available control technology” (RACT) to 

control VOC emissions, which contribute to ozone formation, from the oil and 

natural gas industry emission sources by December 16, 2022, or face sanctions. To 

facilitate compliance, on October 16, 2016, the United States (U.S.) Environmental 

Protection Agency (EPA) issued the “Control Techniques Guidelines for the Oil and 

1 Volatile Organic Compounds.

2 Act of January 8, 1960, P.L. (1959) 2119, as amended, 35 P.S. §§4001-4015.

3

42 U.S.C. §§7401-7671q.
3

Natural Gas Industry” (Federal Guidelines), which provided information to assist 

States in determining what constitutes RACT for VOC emissions. The Federal 

Guidelines make no distinction between unconventional and conventional oil and 

gas operations. PFR, ¶¶1-7, 9, 16-18.

Guided by the Federal Guidelines, the Agencies engaged in five 

rulemaking actions over the course of six years pursuant to the Regulatory Review 

Act4(RRA) and Commonwealth Documents Law5(CDL) to comply with the federal 

mandate. Rulemaking is the process by which agencies adopt regulations.6 

4 Act of June 25, 1982, P.L. 633, as amended, 71 P.S. §§745.1-745.14. 

5 Act of July 31, 1968, P.L. 769, as amended, 45 P.S. §§1102-1602; 45 Pa. C.S. §§501-

907. Former Section 101 of the CDL, formerly 45 P.S. §1101, which constituted the short title, 

was repealed by the Act of July 9, 1976, P.L. 877. In the absence of a new title, we continue to 

refer to the act as the “Commonwealth Documents Law.” 

6 Typically, the rulemaking process includes public notice of the agency’s intention to 

promulgate an administrative regulation and the opportunity to comment. Section 201 of the CDL, 

45 P.S. §1201. Such notice shall include the text of the proposed regulation, a statement of 

statutory authority, a brief explanation, and a request for written comments by any interested 

persons. Id. The agency shall hold a public comment period which shall commence with the 

publication of the proposed rulemaking in the Pennsylvania Bulletin for at least 30 days. 

71 P.S. §745.5(b). The agency shall review and consider any written comments submitted 

pursuant to Section 201 and may hold public hearings as appropriate. Section 202 of the CDL, 

45 P.S. §1202; see Section 5.1(a) of the RRA, 71 P.S. §745.5a(a). 

In addition, Section 5(a) of the RRA requires the agency to submit the proposed regulation 

and regulatory analysis to the Independent Regulatory Review Commission (IRRC) and the 

Pennsylvania House of Representatives and Senate Committees that oversee the agency 

(legislative committees). 71 P.S. §745.5(a). A regulation that follows these notice and comment 

procedures is referred to as a “final-form regulation.” Section 3 of the RRA, 71 P.S. §745.3. 

“[P]rocedures exist to expedite the administrative rulemaking process.” Corman v. Acting 

Secretary of Pennsylvania Department of Health, 267 A.3d 561, 574 n.5 (Pa. Cmwlth.), aff’d, 268 

A.3d 1080 (Pa. 2021). Under limited circumstances, an agency may omit the public notice and 

comment procedures and proceed to “final-omitted” rulemaking if the agency for “good cause”

(Footnote continued on next page...)
4

The Agencies’ first and second rulemaking proceedings proposed a 

regulation implementing RACT requirements to reduce VOC emissions for both

unconventional and conventional oil and natural gas sources in a combined VOC 

rulemaking proceeding (combined rulemaking). PFR, Exhibit No. 2; see 50 Pa. B. 

2633 (2020). After notice and comment, on March 15, 2022, the EQB submitted the 

final-form “Control of VOC Emissions from Oil and Natural Gas Sources”

finds that the notice and comment procedures are “impracticable, unnecessary, or contrary to the 

public interest.” Section 204(3) of the CDL, 45 P.S. §1204(3); see Section 203 of the CDL, 

45 P.S. §1203; 71 P.S. §745.5(b); Pennsylvania Builders Association v. Department of Labor and 

Industry, 284 A.3d 1287, 1293 n.12 (Pa. Cmwlth. 2022). A “final-omitted regulation” goes 

directly to the IRRC and legislative committees for review. 71 P.S. §745.3.

The process may be further expedited if the regulation is “emergency certified.” See

Section 6(d) of the RRA, 71 P.S. §745.6(d); see Section 5(l) of the RRA, 71 P.S. §745.5a(l). An 

emergency-certified regulation takes effect immediately upon the date of publication in the 

Pennsylvania Bulletin or on the date specified in the agency’s adoption order while its review by 

the IRRC and legislative committees takes place over a 120-day period thereafter. 

71 P.S. §745.6(d); Corman v. Acting Secretary of Pennsylvania Department of Health, 266 A.3d 

452, 462 (Pa. 2021); see Section 903 of the CDL, 45 Pa. C.S. §903 (relating to effective date of 

documents); 1 Pa. Code §1374 (effectiveness prior to publication); 1 Pa. Code §313.2 (“An 

emergency[-]certified final regulation shall take effect immediately upon publication in the 

Pennsylvania Bulletin, or on the date specified in the agency’s adoption order.”). Such emergency 

measures apply

if the Attorney General certifies that the final-form or final-omitted 

regulation is required pursuant to the decree of any court or to 

implement the provisions of a statute of the [U.S.] or regulations 

issued thereunder by a Federal agency or if the Governor certifies 

that the final-form or final-omitted regulation is required to meet an 

emergency which includes conditions which may threaten the public 

health, safety or welfare; cause a budget deficit; or create the need 

for supplemental or deficiency appropriations of greater than 

$1,000,000.

71 P.S. §745.6(d). 
5

(Combined VOC Rule) to the Independent Regulatory Review Commission (IRRC)7

and the legislative committees for consideration. PFR, ¶¶39-40.

The Pennsylvania House of Representatives Environmental Resources 

and Energy Committee (House ERE Committee) disapproved the final-form 

Combined VOC Rule. On April 26, 2022, the House ERE Committee sent a letter 

to the IRRC expressing its disapproval on the basis that the EQB was required to 

submit two rulemaking packages—one that applied to unconventional oil and natural 

gas sources and one that applied to conventional oil and natural gas sources -- based 

on its interpretation of the Pennsylvania Grade Crude Development Act (CDA).

8

 

The letter initiated the concurrent resolution process under Section 7(d) of the RRA, 

71 P.S. §745.7(d), which allows the General Assembly to adopt a resolution that 

disapproves and permanently bars a final regulation from taking effect. In response, 

7 The IRRC reviews proposed, final-form, final-omitted, or existing regulations for 

consistency with the criteria contained in the RRA. Section 5.2 of the RRA, added by the Act of 

December 6, 2002, P.L. 1227, as amended, 71 P.S. §745.5b. Specifically, the IRRC reviews 

whether the “agency has the statutory authority to promulgate the regulation” and “whether the 

regulation conforms to the intention of the General Assembly in the enactment of the statute upon 

which the regulation is based.” 71 P.S. §745.5b(a). The IRRC considers “written comments 

submitted by the committees and current members of the General Assembly, pertinent opinions of 

Pennsylvania’s courts and formal opinions of the Attorney General.” Id. In addition, the IRRC 

considers economic or fiscal impacts of the regulation; the protection of the public health, safety 

and welfare, and the effect on the Commonwealth’s natural resources; the clarity, feasibility, and 

reasonableness of the regulation; whether the regulation represents a policy decision of such a 

substantial nature that it requires legislative review; comments, objections, or recommendations 

of a committee; compliance with the RRA; whether the regulation is supported by data; and 

whether a less costly or less intrusive alternative is available. 71 P.S. §745.5b(b)(1)-(8). The 

IRRC acts “as a clearinghouse for complaints, comments and other input from members of the 

General Assembly and from the public regarding existing, proposed, final-form and final-omitted 

regulations.” Section 12 of the RRA, 71 P.S. §745.12. 

8 Act of June 23, 2026, P.L. 375, as amended, 58 P.S. §§1201-1208. Section 7(b) of the 

CDA, 58 P.S. §1207(b), provides that “[a]ny rulemaking concerning conventional oil and gas wells 

. . . shall be undertaken separately and independently of unconventional wells.” 
6

by letter dated May 4, 2022, the EQB notified the IRRC that it was withdrawing the 

final-form Combined VOC Rule from consideration.9 PFR, ¶¶53-55; see id., Exhibit 

No. 2.

Given the concerns expressed by the House ERE Committee and other 

commentators regarding the combined rulemaking, the Agencies engaged in a third 

rulemaking action limited to emissions from unconventional oil and natural gas 

wells (unconventional rulemaking). The DEP modified the withdrawn Combined 

VOC Rule by removing all applicable requirements related to the conventional oil 

and natural sources of VOC emissions. The DEP then resubmitted the final-form 

“Control of VOC Emissions from Unconventional Oil and Natural Gas Sources”

(Unconventional VOC Regulation) to the EQB for consideration. Following the 

EQB’s adoption, the final-form Unconventional VOC Regulation was submitted to, 

and approved by, the IRRC on July 21, 2022. Petitioners allege that at no point 

during the development of the Combined VOC Rule or Unconventional VOC 

Regulation did the Agencies solicit input from the Petitioners concerning the 

development of provisions applicable to VOC emission sources at conventional oil 

and natural gas wells and well sites. PFR, ¶¶56-62. 

In both the fourth and fifth rulemaking proceedings, the Agencies

proposed RACT requirements for VOC emissions for conventional oil and natural 

gas wells (conventional rulemaking). Regarding the fourth rulemaking, on October 

12, 2022, the EQB adopted the final-omitted Conventional VOC Regulation, No. 7-

579. The preamble to the final-omitted Conventional VOC Regulation stated that 

the DEP developed the Conventional VOC Regulation to address concerns 

9 A withdraw removes “a proposed, final-form or final-omitted regulation by an agency 

from the review process so that the [IRRC] and the [legislative] committees are prevented from 

taking further action on the regulation.” Section 3 of the RRA, 71 P.S. §745.3. 
7

expressed by the House ERE Committee and other commentators during the 

regulatory process for the combined rulemaking. The preamble further stated that 

“[p]ublic notice and solicitation of public comments are impracticable, unnecessary, 

and contrary to the public interest” because the “rulemaking was already subject to 

a notice and comment process” in the combined rulemaking and would delay 

implementation of the VOC RACT requirements. PFR, Exhibit No. 5 at 2; 52 Pa. 

B. 7635, 7636 (2022). The Regulatory Analysis Form (RAF) that accompanied the 

final-omitted Conventional VOC Regulation described DEP meetings with advisory

committees for the Combined VOC Rule only. The Comment and Response 

Document similarly addressed comments solicited on the proposed Combined VOC 

Rule only. The RAF for the final-omitted Conventional VOC Regulation stated that 

the DEP did not have data on how many gathering and boosting stations and natural 

gas processing plants are used in the conventional industry and, thus, could not 

estimate the VOC and methane emissions reductions from these sources. PFR, ¶¶64-

67 and Exhibit Nos. 2-4. 

On November 14, 2022, the House ERE Committee disapproved the 

final-omitted Conventional VOC Regulation, which triggered a 14-day legislative 

review period. The 14-day period began after the IRRC approved the final-omitted 

Conventional VOC Regulation on November 17, 2022. During that 14-day period, 

the regulation could not be published in the Pennsylvania Bulletin. Because the 2022 

legislative session ended on November 30, 2022, the regulation could not be 

published by the December 16, 2022 federal sanction deadline. See Section 5.1(j.3) 

of the RRA, 71 P.S. §745.5a(j.3). This prompted the Agencies to take emergency 

action. PFR, Exhibit No. 3. 
8

The fifth and final rulemaking resulted in the emergency-certified finalomitted Conventional VOC Regulation, No. 7-580, which is at issue. On November 

22, 2022, the DEP announced the EQB would consider adopting an emergencycertified final-omitted Conventional VOC Regulation at a meeting scheduled for 

November 30, 2022. The emergency-certification was based upon the Governor’s 

certification that an immediate amendment to the regulations was necessary to 

prevent sanctions, namely, the loss of approximately $800,000,000.00 in federal 

highway funding. The emergency-certified final-omitted Conventional VOC 

Regulation, No. 7-580, is identical to final-omitted Conventional VOC Regulation,

No. 7-579, except for the emergency certification. The preamble and documents 

offered in support mirrored those presented with the final-omitted Conventional 

VOC Regulation, No. 7-579. On November 30, 2022, EQB adopted the emergencycertified final-omitted Conventional VOC Regulation, without notice or comment 

pursuant to Section 204(3) of the CDL, 45 P.S. §1204(3). See

25 Pa. Code §§129.131-129.140. The emergency-certified final-omitted 

Conventional VOC Regulation went into effect on December 2, 2022, just short of 

the federal deadline, and was published in the Pennsylvania Bulletin on December 

10, 2022. PFR, ¶¶78-84 and Exhibit Nos. 1-4; 25 Pa. Code §129.131; see also 45 

Pa. C.S. §903 (relating to effective date of documents), 1 Pa. Code §13.74

(permitting effective date prior to publication if deferral is “impractical or contrary 

to the public interest”). 

Petitioners allege that the Agencies failed to comply with express 

statutory provisions regarding the promulgation of the Conventional VOC 

Regulation without good cause. Petitioners’ PFR sets forth two counts. In Count I, 

Petitioners contend that the Agencies violated the CDL by failing to provide notice 
9

and public comment opportunity on the Conventional VOC Regulation. Petitioners 

assert that the Agencies lacked good cause under the circumstances to meet the 

statutory exception to the notice and comment requirements before finalizing the 

emergency-certified final-omitted Conventional VOC Regulation because the 

Agencies had six years to comply with federal mandates. 

In Count II, Petitioners claim that the Agencies failed to comply with 

Section 7(b) of the CDA, 58 P.S. §1207(b), which requires the EQB to undertake 

any rulemaking concerning conventional oil and gas wells “separately and 

independently of unconventional wells . . . .” Petitioners allege that the 

Conventional VOC Regulation resulted from combined rulemaking concerning 

conventional and unconventional oil and gas wells. They allege that the Agencies

did not undertake conventional rulemaking “separately and independently of 

unconventional wells” or develop a RAF restricted to the subject of conventional oil 

and gas wells. Petitioners claim that these compliance failures render the 

emergency-certified final-omitted Conventional VOC Regulation null and void. 

Petitioners ask this Court to find and declare: 

1. [T]he plain meaning of the phrase “any rulemaking 

concerning conventional oil and gas wells” in Section 7(b) 

of [the CDA, 58 P.S. §1207(b),] applies to a rulemaking 

concerning only the Pennsylvania oil and natural gas 

industry that imposes requirements and obligations on 

owners and operators of conventional oil and gas wells and 

well sites;

2. [The] [A]gencies failed to comply with the mandates of 

Section 7(b) of [the CDA] when undertaking the 

[c]ombined [] [r]ulemaking as well as the emergencycertified final-omitted Conventional VOC Regulation 

derived from the Combined VOC Rule[];
10

3. [T]he emergency[-]certified final-omitted Conventional 

VOC Regulation was not promulgated in compliance with 

Section 7(b) of [the CDA];

4. [T]he emergency[-]certified final-omitted Conventional 

VOC Regulation is therefore null and void; and

5. DEP may not implement or enforce a final regulation 

concerning VOC emission sources at conventional oil and 

gas wells and well sites without complying with Section 

7(b) of [the CDA,]

and provide any other relief the Court deems appropriate.

PFR, at 36.

II. POs

In response, the Agencies filed POs pursuant to Pa.R.Civ.P. 1028(a)(4) 

(demurrer); 1028(a)(5) (lack of capacity to sue); and 1028(a)(7) (failure to exhaust 

a statutory remedy). More particularly, the Agencies demur to Count I, claiming the 

emergency-certified final-omitted Conventional VOC Regulation is a valid exercise 

of their rulemaking authority, and Petitioners fail to offer any legal support for their 

allegation that the regulation was not validly promulgated. The Agencies also demur 

to Count II on the basis that the CDA does not apply to regulations promulgated 

under the Air Pollution Control Act and, if it did, they fully complied with its 

mandates. The Agencies next object on the ground that Petitioners have not 

exhausted administrative remedies available to them before seeking relief from this 

Court. Finally, the Agencies object on the basis that Petitioners are not aggrieved 

and, therefore, lack standing to challenge the previous Combined VOC Rule because 
11

this rule was withdrawn in favor of the emergency-certified Conventional VOC 

Regulation. Petitioners answered the POs. We address each of the POs in turn.10 

III. Discussion

A. Demurrer – Count I 

1. Contentions

a. Agencies’ Position

First, the Agencies contend that Petitioners fail to state a viable legal 

claim in Count I. The emergency-certified final-omitted Conventional VOC 

Regulation at issue in this case is a valid exercise of the Agencies’ rulemaking 

authority. The Agencies assert they had good cause to omit the notice and comment 

procedures specified in Sections 201 and 202 of the CDL, 45 P.S. §§1201, 1202. 

Specifically, the Agencies justify the omission based on the federally-imposed

compliance deadline of December 16, 2022, to regulate VOC emissions and threat 

of sanctions. Had the Agencies failed to meet this deadline, the Commonwealth 

stood to lose millions of dollars in federal highway funding as a sanction. Petitioners 

fail to offer any legal support for their allegation that this regulation was not a validly 

promulgated rule under Pennsylvania law. 

10 In ruling on POs, this Court

must accept as true all well-pled facts that are material and all 

inferences reasonably deducible from the facts. However, [we] are 

not required to accept as true any unwarranted factual inferences, 

conclusions of law or expressions of opinion. For [POs] to be 

sustained, it must appear with certainty that the law will permit no 

recovery. Any doubt must be resolved in favor of the non-moving 

party.

Guarrasi v. Scott, 25 A.3d 394, 400 n.5 (Pa. Cmwlth. 2011); accord Pennsylvania Independent 

Oil & Gas Association v. Department of Environmental Protection, 135 A.3d 1118, 1123 (Pa. 

Cmwlth. 2015), aff’d, 161 A.3d 949 (Pa. 2017).
12

b. Petitioners’ Position

Petitioners counter that the Agencies used an improper procedure for 

promulgating regulations under Section 204(3) of the CDL, 45 P.S. §1204(3), to 

circumvent proper notice and comment procedures. According to Petitioners, the 

Agencies lacked good cause because they had sufficient time – over six years – to 

comply with the federal mandate. The Agencies have not stated any exigent 

circumstances other than those of their own making through delay. Proceeding in 

this manner was held to be improper by this Court in Automotive Services Councils 

of Pennsylvania v. Larson, 474 A.2d 404 (Pa. Cmwlth. 1984). 

2. Analysis

When adjudicating the validity of a regulation, the Court considers 

whether the regulations are “(a) adopted within the agency’s granted power, 

(b) issued pursuant to proper procedure, and (c) reasonable.” Bucks County 

Services, Inc. v. Philadelphia Parking Authority, 195 A.3d 218, 227 (Pa. 2018) 

(citations omitted). As for proper procedure, a regulation must be promulgated 

pursuant to the notice and comment procedures contained in the CDL in order to 

have the force and effect of law. R.M. v. Pennsylvania Housing Finance Agency of 

Commonwealth, 740 A.2d 302, 306 (Pa. Cmwlth. 1999). Section 201 of the CDL 

provides:

Except as provided in [S]ection 204[ of the CDL, 45 

P.S. §1204,] an agency shall give, in the manner provided 

in [S]ection 405 [of the CDL, 45 P.S. §1405,] (relating to 

additional contents of temporary supplements) public 

notice of its intention to promulgate, amend or repeal any 

administrative regulation. Such notice shall include:

(1) The text of the proposed administrative regulation, 

except any portions thereof omitted pursuant to [S]ection 

407[ of the CDL, 45 P.S. §1407,] (relating to matter not 
13

required to be published), prepared in such a manner as to 

indicate the words to be added or deleted from the 

presently effective text thereof, if any.

(2) A statement of the statutory or other authority under 

which the administrative regulation or change therein is 

proposed to be promulgated.

(3) A brief explanation of the proposed administrative 

regulation or change therein.

(4) A request for written comments by any interested 

person concerning the proposed administrative regulation 

or change therein.

(5) Any other statement required by law.

45 P.S. §1201. 

However, an agency may bypass these procedures under limited 

circumstances for “good cause.” Section 204(3) of the CDL, 45 P.S. §1204(3); see 

Larson, 474 A.2d at 405. Specifically, Section 204(3) of the CDL provides: 

The agency for good cause finds (and incorporates the 

finding and a brief statement of the reasons therefor in the 

order adopting the administrative regulation or change 

therein) that the procedures specified in sections 201 and 

202[ of the CDL, 45 P.S. §§1201, 1202,] are in the 

circumstances impracticable, unnecessary, or contrary to 

the public interest.

45 P.S. §1204(3) (emphasis added). The reasons for departing from the 

requirements must be stated and persuasive. See Larson, 474 A.2d at 405-06. 

“[R]egulations not properly promulgated” under the CDL’s standard or emergency 

procedures “are a nullity.” Id. at 405.

In Larson, the Pennsylvania Department of Transportation (DOT) 

promulgated a regulation without a comment period asserting good cause under 

Section 204(3) of the CDL. Larson, 474 A.2d at 405. DOT justified its omission 
14

based on its need to comply with a court-imposed time constraint of August 1, 1983. 

Id. We determined that DOT did not advance good cause, explaining:

The regulations were in final form and submitted . . . by 

June 2, 1983. DOT could have published the regulations 

for comment at this time, yet it waited until July 23, 1983. 

Since there was sufficient time and opportunity to submit 

the regulations for the prescribed thirty-day comment 

period, DOT cannot claim that the period was 

unnecessary due to time limitations set by the federal 

court.

Id. at 406 (emphasis added). This Court opined that the purpose of the CDL’s notice 

and comment procedures is “to provide parties with a fair opportunity to present 

their position whether or not they will ultimately prevail.” Id. Allowing an agency 

to bypass the CDL’s procedures “would significantly limit the public’s input as to 

future proposed regulations.” Id. Because the regulation was not properly 

promulgated, we declared it a nullity. Id. 

Later, in Jeffers v. Commonwealth, 601 A.2d 401, 404 (Pa. Cmwlth. 

1991), we affirmed the validity of a regulation promulgated by DOT under 

“emergency circumstances.” Jeffers was distinguishable from Larson in three key 

respects. See id. at 403. First, unlike the procedure in Larson in which DOT 

provided no opportunity for comment, in Jeffers, DOT gave the public 30 days in 

which to comment upon the regulation. Id. Second, there was no evidence that DOT 

“could have complied with the notice period.” Id. “[T]here was an emergency 

situation which required immediate action.” Id. Specifically, the immediate 

adoption of the regulation was necessary to facilitate the prosecution of drunk 

driving cases. Id. Finally, the regulation was published in the Pennsylvania Bulletin, 

which created a rebuttable presumption of validity under Section 905 of the CDL, 
15

45 Pa. C.S. §905, which was not rebutted. Jeffers, 601 A.2d at 404. Given these 

distinctions, we held that the regulation was properly promulgated. Id. 

Thereafter, in Department of Transportation v. Colonial Nissan, Inc., 

691 A.2d 1005, 1009 (Pa. Cmwlth. 1997), we again considered the validity of certain 

DOT regulatory amendments promulgated under Section 204 of the CDL. DOT 

defended that it was not necessary to adhere to the procedures specified in Sections 

201 and 202 of the CDL because it was “merely readopting” a prior regulation 

without enlarging the scope of the existing regulation. Id. However, when the 

regulation was published in the Pennsylvania Code, there were modifications from 

the version previously published, which DOT subsequently corrected in an 

amendment. Id. Ultimately, this Court invalidated the amendments promulgated 

under Section 204 because the modifications and amendments to the prior regulation 

necessitated “adherence to the normal notice and comment procedures.” Id. We 

explained: 

[T]he reasons which DOT cited in its January 6, 1990 

announcement to justify proceeding under Section 204 of 

the [CDL] were defeated by the errors inadvertently 

contained in the January 1, 1994 publication and the 

subsequent corrective amendments of October 1994 make 

it obvious that adherence to the normal notice and 

comment procedures was far from “unnecessary.”

Id. We emphasized that “[t]he process by which regulations are promulgated 

provides an important safeguard against the unwise or improper exercise of 

discretionary administrative power and includes public notice of a proposed rule, 

request for written comments, consideration of such comments, and hearings as 

appropriate.” Id. (emphasis added). 

Here, as in Jeffers and Colonial Nissan, the emergency-certified finalomitted Conventional VOC Regulation was published in the Pennsylvania Bulletin, 
16

thereby creating a rebuttable presumption of validity. See 45 Pa. C.S. §905. To 

rebut this presumption, Petitioners alleged that the Agencies did not provide an 

opportunity for public comment on the emergency-certified final-omitted 

Conventional VOC Regulation, which the Agencies do not deny. Petitioners 

challenge the Agencies’ purported “good cause” justification on the basis that there 

was ample time to comply with notice and comment procedures had the Agencies 

acted sooner. 

The Agencies maintain that their actions were justified based on the 

federal deadline of December 16, 2022, and the threat of significant sanctions. 

However, under Larson, the Agencies’ stated reason is questionable considering 

they had over six years to promulgate the regulation. Although the Agencies

engaged in combined rulemaking during this six-year period, the Agencies did not 

engage in separate rulemaking until approximately six months before the deadline. 

The Agencies’ third rulemaking action, which began in May 2022, complied with 

the CDL’s notice and comment requirements. This separate rulemaking was limited 

to the regulation of VOC emissions from unconventional oil and gas wells and led 

to the adoption of the final Unconventional VOC Regulation. However, the

Agencies did not similarly engage in separate rulemaking related to conventional oil 

and gas wells at this time. Instead, the Agencies waited until October 2022, to begin 

the rulemaking process for conventional oil and gas wells. Given the close proximity 

to the compliance deadline, the Agencies bypassed notice and comment procedures 

citing exigent circumstances. As in Larson, it appears that there was ample time and 

opportunity to follow standard CDL procedures had they engaged in the rulemaking 

process for conventional oil and gas wells at an earlier date. Under these 
17

circumstances, it does not appear with certainty that the law will permit no recovery. 

We, therefore, overrule the Agencies’ PO to Count I. 

B. Demurrer – Count II

1. Contentions

a. Agencies’ Position

Next, the Agencies contend that Petitioners failed to state a viable legal 

claim in Count II. The emergency-certified final-omitted Conventional VOC 

Regulation was promulgated to reduce air pollution under the Air Pollution Control 

Act and, according to the Agencies, is not subject to the requirements of the CDA. 

Petitioners’ assertion that the Regulation is subject to the requirements of CDA is 

inconsistent with the rules of statutory construction. Although Section 7(b) of the 

CDA states that “any rulemaking concerning conventional oil and gas wells

. . . shall be undertaken separately and independently of unconventional wells . . .”, 

58 P.S. §1207(b), the meaning of “any” is wholly dependent on the statutory context 

in which it is used. Therefore, it is inapplicable to regulations adopted under the Air 

Pollution Control Act. Even assuming that the CDA requirements are applicable 

here, the Agencies’ rulemaking process followed those very procedures. Finally, the 

Petitioners are prohibited from asserting a cause of action under the RRA. 

b. Petitioners’ Position

Petitioners respond that Section 7(b) of the CDA clearly and 

unequivocally states that “[a]ny rulemaking concerning conventional oil and gas 

wells that the [EQB] undertakes . . . shall be undertaken separately and 

independently of unconventional wells . . . .” 58 P.S. §1207(b) (emphasis added). 

This plain statutory provision applies to the rulemaking in the pending action that 

directly concerns conventional oil and gas wells. The General Assembly did not add 
18

any restrictive language that “any rulemaking” pertained only to proposed 

regulations under the CDA. Despite engaging in combined rulemaking for

approximately six years, the Agencies failed to promulgate a regulation that 

complied with the mandates in Section 7(b) of the CDA. Contrary to the Agencies’

assertions, Petitioners have not asserted a cause of action under the RRA. Rather, 

their claims arise under the CDL (Count I) and the CDA (Count II).

2. Analysis

Section 7(b) of the CDA provides:

Any rulemaking concerning conventional oil and gas wells

that the [EQB] undertakes after the effective date of this 

act shall be undertaken separately and independently of 

unconventional wells or other subjects and shall include a 

[RAF] submitted to the [IRRC] that is restricted to the 

subject of conventional oil and gas wells.

58 P.S. §1207(b) (emphasis added). 

In ascertaining the meaning of a statute, we are guided by the Statutory 

Construction Act of 1972 (SCA). The overriding object of all statutory 

interpretation and construction “is to ascertain and effectuate the intention of the 

General Assembly” in enacting the statute under review. Section 1921(a) of the 

SCA, 1 Pa. C.S. §1921(a). In addition, we must construe rules which pertain to the 

same subject together. Section 1932 of the SCA, 1 Pa. C.S. §1932.

If statutory language is “clear and free from ambiguity, the letter of it 

is not to be disregarded under the pretext of pursuing its spirit.” Section 1921(b) of 

the SCA, 1 Pa. C.S. §1921(b). Thus, “when the words of a statute have a plain and 

unambiguous meaning, it is this meaning which is the paramount indicator of 

legislative intent.” Snyder Brothers, Inc. v. Pennsylvania Public Utility 
19

Commission, 198 A.3d 1056, 1071 (Pa. 2018), order amended on reconsideration, 

203 A.3d 964 (Pa. 2019). “However, in situations where the words of a statute ‘are 

not explicit,’ the legislature’s intent may be determined by considering any of the 

factors enumerated in Section 1921(c) [of the SCA, 1 Pa. C.S. §1921(c).]” Id. These 

factors are:

(1) The occasion and necessity for the statute.

(2) The circumstances under which it was enacted.

(3) The mischief to be remedied.

(4) The object to be attained.

(5) The former law, if any, including other statutes upon 

the same or similar subjects.

(6) The consequences of a particular interpretation.

(7) The contemporaneous legislative history.

(8) Legislative and administrative interpretations of such 

statute.

1 Pa. C.S. §1921(c). This Court has further declared:

[W]hen a statute is ambiguous, courts generally defer to 

the expertise of the agency upon which the General 

Assembly has vested enforcement or interpretive 

responsibilities and, consequently, should accept the 

agency’s interpretation of ambiguous statutory language. 

When an agency’s interpretation is entitled to such 

deference, courts will defer to such proposed 

interpretation unless an agency’s interpretation of a statute 

is erroneous or frustrates legislative intent.

Stodghill v. Pennsylvania Department of Corrections, 150 A.3d 547, 554 (Pa. 

Cmwlth. 2016) (internal citations and quotations omitted); see Corman v. Acting 

Secretary of Pennsylvania Department of Health, 266 A.3d 452, 485 (Pa. 2021).
20

The word “any” can take one of “two commonly accepted alternative 

meanings in the English language” depending “on how it is used in a particular 

statute.” Snyder Brothers, 198 A.3d at 1072. It can “mean ‘all’ or ‘every,’ as well 

as ‘one.’” Id. (quoting Black’s Law Dictionary 94 (6th ed. 1991)). “[T]he meaning 

of the term ‘any’” is “wholly dependent on the context in which it is used in the 

particular statute under review.” Id. at 1073. 

Section 7(b) has not yet been interpreted by this, or any, Court. 

Petitioners have advanced a viable interpretation that “[a]ny rulemaking concerning 

conventional oil and gas wells that the [EQB] undertakes” must be “undertaken 

separately and independently of unconventional wells” in any statutory context. 

58 P.S. §1207(b). The House ERE Committee expressed this same interpretation

when disapproving the Combined VOC Rule. See PFR, ¶¶53-54 and Exhibit No. 2, 

at 7. The Agencies counter that “any rulemaking” pertains only to regulations 

promulgated under the CDA and is wholly inapplicable to regulations promulgated 

under the Air Pollution Control Act. Although the Agencies’ interpretation is 

entitled to deference, they have not demonstrated that their interpretation of Section 

7(b) is so clear and free from doubt that Count II of Petitioners’ PFR should be 

dismissed on POs. Because this issue is one of first impression and is not clear and 

free from doubt, we overrule the Agencies’ PO to Count II. See Pennsylvania AFLCIO ex rel. George v. Commonwealth, 757 A.2d 917, 921 (Pa. 2000); Stodghill, 150 

A.3d at 554. 

Assuming that the CDA applies to regulations promulgated under the 

Air Pollution Control Act, the Agencies alternatively assert that Count II should be 

dismissed because the Agencies satisfied those requirements in the combined 

rulemaking that led to the adoption of the Conventional VOC Regulation. However, 
21

before this Court can address compliance, the legal question must first be resolved 

as to whether the CDA is applicable to the regulation here. At this stage, we also 

must accept as true Petitioners’ factual allegations that the Agencies engaged in 

combined rulemaking concerning conventional oil and gas wells for approximately 

six years without doing so separately and independently of unconventional oil and 

gas wells. PFR, ¶¶21-22, 39-40, 64-74; see POs, ¶¶10-16, 57, 66, 112. Therefore, 

the Agencies are not entitled to a demurrer on this alternate basis. 

Finally, regarding the Agencies’ RRA objection, Petitioners’ claims 

arise under the CDL (Count I) and the CDA (Count II), not under the RRA. For 

these reasons, we overrule the Agencies’ demurrer to Count II.

C. Failure to Exhaust Administrative Remedy 

1. Contentions

a. Agencies’ Position

Next, the Agencies contend that Petitioners have not exhausted their 

administrative remedies under the RRA’s review and comment process. Although 

the emergency-certified final-omitted Conventional VOC Rule is fully effective and 

enforceable, it is still subject to review by the IRRC and legislative committees in 

the same manner as all other final-form and final-omitted regulations. The only 

difference is that the emergency-certified final-omitted Conventional VOC 

Regulation became effective immediately in advance of the review. It is through 

this review process that Petitioners can submit comments and request the IRRC to 

disapprove the Conventional VOC Regulation. There are several steps left in the 

regulatory review process that must be completed under the RRA. Petitioners have 

not asserted any grounds for bypassing this process. 
22

b. Petitioners’ Position

Petitioners respond that the Agencies’ exhaustion of administrative 

remedies argument fails because the comment remedy under the RRA is wholly 

inadequate. Petitioners and other conventional producers have been subject to the 

requirements of the challenged regulation since December 2, 2022, and they are 

harmed by them. Petitioners will continue to incur compliance costs during the 

comment process while they wait to see if the emergency-certified final-omitted 

Conventional VOC Regulation will be permanently effective or disapproved. The 

industry-wide cost of regulatory compliance is approximately $9,800,000.00 per 

year. PFR, ¶81. 

2. Analysis

Under the doctrine of exhaustion of administrative remedies, a party 

must exhaust all available administrative remedies before the right of judicial review 

arises. Empire Sanitary Landfill, Inc. v. Department of Environmental Resources, 

684 A.2d 1047, 1054 (Pa. 1996); Keystone ReLeaf, LLC v. Pennsylvania Department 

of Health, 186 A.3d 505, 514 (Pa. Cmwlth. 2018). “However, the exhaustion 

doctrine is neither inflexible nor absolute.” Keystone ReLeaf, 186 A.3d at 514. 

(citing Feingold v. Bell of Pennsylvania, 383 A.2d 791, 793 (Pa. 1977)). There are 

narrow circumstances where exhaustion of remedies is not required. Id. Our 

Supreme Court has recognized three exceptions to the exhaustion of administrative 

remedies:

The first exception is where the jurisdiction of an agency 

is challenged. The second exception is where the 

constitutionality of a statutory scheme or its validity is 

challenged. The third exception is where the legal or 

equitable remedies are unavailable or inadequate, or the 
23

administrative agency is unable to provide the requested 

relief.

Empire Sanitary, 684 A.2d at 1054 (internal citations omitted) (emphasis added). 

“Where the effect of the challenged regulations upon the industry regulated is direct 

and immediate, the hardship thus presented suffices to establish the justiciability of 

the challenge in advance of enforcement.” Arsenal Coal Co. v. Department of 

Environmental Resources, 477 A.2d 1333, 1339 (Pa. 1984). 

Section 6 of the RRA, 71 P.S. §745.6, sets forth procedures for 

disapproval of final-form and final-omitted regulations and emergency-certified 

regulations. Specifically, Section 6(d) provides:

The [IRRC] may not issue an order barring an agency 

from promulgating a final-form or final-omitted 

regulation if the Attorney General certifies that the finalform or final-omitted regulation is required pursuant to the 

decree of any court or to implement the provisions of a 

statute of the [U.S.] or regulations issued thereunder by a 

Federal agency or if the Governor certifies that the finalform or final-omitted regulation is required to meet an 

emergency which includes conditions which may threaten 

the public health, safety or welfare; cause a budget deficit; 

or create the need for supplemental or deficiency 

appropriations of greater than $1,000,000. In those cases, 

the final-form or final-omitted regulation may take effect 

on the date of publication or on a later date specified in the 

order adopting the final-form or final-omitted regulation. 

The [IRRC] and the [legislative] committees shall review 

the final-form or final-omitted regulation pursuant to the 

procedures provided for in this act. If the final-form or 

final-omitted regulation is disapproved pursuant to those 

procedures, that regulation shall be rescinded after 120

days or upon final disapproval, whichever occurs later.

71 P.S. §745.6(d) (emphasis added); see Corman, 266 A.3d at 462; Corman v. Acting 

Secretary of Pennsylvania Department of Health, 267 A.3d 561, 574 n.20 (Pa. 

Cmwlth.), aff’d, 268 A.3d 1080 (Pa. 2021). 
24

Section 7 of RRA, 71 P.S. §745.7, governs the procedures for 

subsequent review of disapproved final-form or final-omitted regulations. Section 

7 provides:

(a) An agency may select one of the following options for 

proceeding with a regulation which has been disapproved 

by the [IRRC]:

(1) To proceed further with the final-form or finalomitted regulation pursuant to subsection (b).

(2) To proceed further with the final-form or finalomitted regulation pursuant to subsection (c).

(3) To withdraw the final-form or final-omitted 

regulation.

(b) If the agency decides to adopt the final-form or finalomitted regulation without revisions or further 

modifications, the agency shall submit a report to the 

committees and the [IRRC] within 40 days of the agency’s 

receipt of the [IRRC]’s disapproval order. The agency’s 

report shall contain the final-form or final-omitted 

regulation, the [IRRC]’s disapproval order and the 

agency’s response and recommendations regarding the 

final-form or final-omitted regulation. If the committees 

are prevented from receiving the report because of 

adjournment sine die or expiration of the legislative 

session in an even-numbered year, the agency shall submit 

its report to the [IRRC] and the committees on the fourth 

Monday in January of the next year. If either committee 

has not been designated by the fourth Monday in January, 

the agency may not deliver the report to the committees 

and the [IRRC] until both committees are designated, but 

the agency shall deliver its report to the [IRRC] and the 

committees no later than the second Monday after the date 

by which both committee designations have been 

published in the Pennsylvania Bulletin. If the agency does 

not deliver the report to the committees and the [IRRC] in 

the time prescribed in this subsection, the agency shall be 
25

deemed to have withdrawn the final-form or final-omitted 

regulation.

(c) If the agency decides to revise or modify the final-form 

or final-omitted regulation in order to respond to 

objections raised by the [IRRC] and adopt that regulation 

with revisions or modifications, the agency shall submit a 

report to the committees and the [IRRC] within 40 days of 

the agency’s receipt of the [IRRC]’s disapproval order. 

The agency’s report shall contain the revised final-form or 

final-omitted regulation, the findings of the [IRRC], and 

the agency’s response and recommendations regarding the 

revised final-form or final-omitted regulation. If the 

committees are prevented from receiving the report 

because of adjournment sine die or expiration of the 

legislative session in an even-numbered year, the agency 

shall submit the report to the [IRRC] and the committees 

on the fourth Monday in January of the next year. If either 

committee has not been designated by the fourth Monday 

in January, the agency may not deliver the report to the 

committees and the [IRRC] until both committees are 

designated, but the agency shall deliver its report to the 

[IRRC] and the committees no later than the second 

Monday after the date by which both committee 

designations have been published in the Pennsylvania 

Bulletin. If the agency does not deliver its report to the 

[IRRC] and the committees in the time prescribed in this 

subsection, the agency shall be deemed to have withdrawn 

the final-form or final-omitted regulation.

71 P.S. §745.7. 

Here, the emergency-certified final-omitted Conventional VOC 

Regulation became effective and fully enforceable as of December 2, 2022. 

Although the regulation is subject to the RRA’s regulatory review process, there was 

no remedy available to Petitioners while they submitted comments and waited to see 

if the emergency-certified final-omitted Conventional VOC Regulation would
26

become permanently effective or disapproved of under 71 P.S §745.6(d).

11 Even if 

disapproved, the Agencies are authorized to proceed under Section 7(b) or (c) of the 

RRA, 71 P.S. §745.7(b) or (c). Because the regulation was effective and fully 

enforceable as of December 2, 2022, the conventional oil and gas well industry

immediately faced substantial compliance costs and potential sanctions for 

noncompliance. Thus, the effects of the emergency-certified final-omitted 

Conventional VOC Regulation were “direct and immediate” on the conventional oil 

and gas well industry as of December 2, 2022. See Arsenal, 477 A.2d at 1339. 

Although the IRRC has the power to consider comments in the review process, it 

does not have “the power to grant declaratory judgment and injunctive relief 

pursuant to the [DJA], . . . because only courts of record of the Commonwealth have 

that jurisdiction.” Empire Sanitary, 684 A.2d at 1055. Upon review, we conclude 

that the administrative remedy is not adequate. Thus, we overrule this PO. 

D. Lack of Capacity to Sue 

1. Contentions

a. Agencies’ Position

Finally, the Agencies object on the basis that Petitioners lack the 

capacity to challenge the combined rulemaking process or Combined VOC Rule 

under Pa.R.Civ.P. 1028(a)(5). The Combined VOC Rule was withdrawn in favor of 

the Conventional VOC Regulation. Because the Combined VOC Rule no longer 

exists, it became a nullity. It, therefore, follows that Petitioners cannot be aggrieved 

by a regulation that does not exist. Consequently, Petitioners have no standing to 

challenge whether the combined rulemaking process complied with the CDA.

11 We note that on April 20, 2023, the emergency-certified final-omitted Conventional 

VOC Regulation received final approval from the IRRC.
27

b. Petitioners’ Position

Petitioners contend that they have standing to seek declaratory relief 

regarding the combined rulemaking process because it was this very process that led 

to the adoption of the emergency-certified final-omitted Conventional VOC 

Regulation. The Agencies failed to comply with the mandates of Section 7(b) of the 

CDA by not developing regulations for conventional oil and gas wells separately 

and independently of unconventional oil and gas wells. The Agencies did not permit 

notice and comment on a proposed rulemaking package developed specifically for 

conventional wells separate and apart from unconventional gas wells. The Agencies

ask this Court to overlook six years of combined rulemaking undertaken in clear 

violation of Section 7(b) of the CDA before proceeding to emergency-certified finalomitted rulemaking procedures. 

2. Analysis

In ruling on POs alleging a lack of capacity to sue, we must consider 

the party’s standing. PG Publishing Co., Inc. v. Governor’s Office of 

Administration, 120 A.3d 456, 461 (Pa. Cmwlth. 2015), aff’d, 135 A.3d 578 (Pa. 

2016). Our Supreme Court has explained that the hallmark of standing is that a party 

that “is not adversely affected in any way by the matter [it] seeks to challenge is not 

‘aggrieved’ thereby.” William Penn Parking Garage, Inc. v. City of Pittsburgh, 346 

A.2d 269, 280 (Pa. 1975). A party is aggrieved if it has a “substantial, direct and 

immediate interest in the outcome of the litigation.” Fumo v. City of Philadelphia, 

972 A.2d 487, 496 (Pa. 2009). 

Here, Petitioners seek declaratory relief with respect to the emergencycertified final-omitted Conventional VOC Regulation as well as the combined 
28

rulemaking process upon which the regulation was based because the process failed 

to satisfy the statutory obligations of the CDA. Petitioners have pleaded that they 

are aggrieved by the Agencies’ failure to comply with the requirements of Section 

7(b) of CDA in the undertaking, development, and/or formulation of the Combined 

VOC Rule because those rulemaking efforts were not “undertaken separately and 

independently of unconventional wells.” Beginning in 2017, and over the next six 

years, the Agencies engaged in combined rulemaking for both conventional and 

unconventional oil and gas wells. Although this combined rulemaking ultimately 

resulted in the disapproval and withdrawal of the Combined VOC Rule, this 

rulemaking served as the foundation for the emergency-certified final-omitted 

Conventional VOC Regulation. The Agencies admit that the emergency-certified 

final-omitted Conventional VOC Regulation is identical to the final-omitted 

Conventional VOC Regulation and is derived from the same RAF form used in the 

combined rulemaking. See POs, ¶¶39, 51, 63. The Agencies justified bypassing 

CDL procedures of notice and comment as “impracticable, unnecessary and contrary 

to the public interest” because the “requirements for the conventional oil and natural 

gas sources covered by this final-omitted rulemaking are identical to those 

contained in the combined rulemaking.” PFR, Exhibit No. 5 at 2 (emphasis added); 

52 Pa. B. at 7636 (emphasis added). Upon review, Petitioners have alleged sufficient 

facts to withstand the Agencies’ objection to capacity to sue. Thus, we overrule this 

PO.
29

IV. Conclusion

Accordingly, we overrule the Agencies’ POs and direct them to file an 

answer to the PFR. 

MICHAEL H. WOJCIK, Judge
IN THE COMMONWEALTH COURT OF PENNSYLVANIA

Pennsylvania Independent Oil & Gas :

Association, Pennsylvania Grade :

Crude Oil Coalition, and Pennsylvania :

Independent Petroleum Producers :

Association, :

:

Petitioners :

:

 v. : No. 574 M.D. 2022

: 

Department of Environmental :

Protection of the Commonwealth of :

Pennsylvania and Environmental :

Quality Board of the Commonwealth :

of Pennsylvania, :

:

Respondents :

O R D E R

AND NOW, this 16th day of April, 2024, Respondents’ preliminary 

objections to Petitioners’ Petition for Review in the Nature of a Complaint for 

Declaratory Relief (PFR) are OVERRULED. Respondents are directed to file an 

answer to the PFR within 30 days of this order. 

__________________________________

MICHAEL H. WOJCIK, Judge