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The Marcellus Shale Coalition v. Department of Environmental Protection of Commonwealth

Commonwealth Court of Pennsylvania

July 22, 2019

The Marcellus Shale Coalition, Petitioner
v.
Department of Environmental Protection of the Commonwealth of Pennsylvania and Environmental Quality Board of the Commonwealth of Pennsylvania, Respondents

          Argued: October 17, 2018

          BEFORE: HONORABLE MARY HANNAH LEAVITT, President Judge HONORABLE RENÉE COHN JUBELIRER, Judge HONORABLE P. KEVIN BROBSON, Judge HONORABLE PATRICIA A. McCULLOUGH, Judge HONORABLE ANNE E. COVEY, Judge HONORABLE CHRISTINE FIZZANO CANNON, Judge HONORABLE ELLEN CEISLER, Judge

          OPINION

          P. KEVIN BROBSON, Judge

         TABLE OF CONTENTS

         I. INTRODUCTION ........................................................................................... 2

         II. PROCEDURAL HISTORY ............................................................................ 3

         III. GOVERNING LEGAL STANDARDS .......................................................... 5

         A. Summary Relief ..................................................................................... 5

         B. Declaratory Relief ................................................................................. 6

         C. Tire Jockey ............................................................................................ 7

         IV. ANALYSIS OF CROSS-APPLICATIONS .................................................... 9

         A. Area of Review (Count II)-Agencies' Application ............................ 9

         B. On-Site Processing (Count III)-Cross-Applications ......................... 23

         C. Well Development and Centralized Impoundments (Count IV)-Agencies' Application ................................................... 27

         1. Well Development Impoundments ........................................... 27

         2. Centralized Impoundments ....................................................... 35

         D. Site Restoration (Count V)-Cross-Applications ............................... 44

         1. Authority-Subsections (a) and (b) ............................................... 49

         2. Vagueness-Subsection (b) ........................................................... 58

         3. Authority-Subsection (d) ............................................................. 63

         4. Compliance with Procedures .......................................................... 69

         5. Reasonableness ............................................................................... 75

         E. Spill Remediation (Count VI)-Cross-Applications .......................... 76

         F. Waste Reporting (Count VII)-Agencies' Application ...................... 80

         V. CONCLUSION .............................................................................................. 86

         I. INTRODUCTION

         The Marcellus Shale Coalition (Coalition) initiated this original jurisdiction action, seeking pre-enforcement review of regulations related to unconventional well operations found in Title 25, Chapter 78a of the Pennsylvania Code (Unconventional Well Regulations), 25 Pa. Code Ch. 78a.[1] Presently before the Court are cross-applications for partial summary relief. The Coalition seeks summary relief in its favor on Counts III (on-site processing regulation), V (site restoration regulation), and VI (spill remediation regulation) of its Petition for Review in the Nature of a Complaint Seeking Declaratory and Injunctive Relief (Petition). Respondents the Department of Environmental Protection (Department) and the Environmental Quality Board (EQB) (collectively, Agencies)[2] seek summary relief in their favor on Counts II (area of review regulation), III, IV (well development impoundment and centralized impoundment regulations), V, VI, and VII (waste reporting regulation).

         II. PROCEDURAL HISTORY

         Shortly after the Unconventional Well Regulations became effective, the Coalition initiated this action in our original jurisdiction. The Petition is organized into seven counts, each of which addresses challenges to a particular regulation. Contemporaneous with the Petition, the Coalition applied for preliminary injunctive relief, seeking an order enjoining enforcement of the challenged regulations pending disposition of the merits. Following an evidentiary hearing, this Court granted in part and denied in part the Coalition's application in an unreported, single-judge decision. See Marcellus Shale Coal. v. Dep't of Envtl. Prot. (Pa. Cmwlth., No. 573 M.D. 2016, filed Nov. 8, 2016) (MSC I). Specifically, the Court granted some form of interim relief with respect to Counts I, II, IV, and V but denied interim relief with respect to the remaining counts of the Petition.

         The Agencies appealed that decision to the Pennsylvania Supreme Court. The Supreme Court affirmed in part and reversed in part. See Marcellus Shale Coal. v. Dep't of Envtl. Prot., 185 A.3d 985 (Pa. 2018) (MSC II). Specifically, the Supreme Court affirmed the grant of preliminary injunctive relief with respect to Counts I and II. With respect to Count IV, the Supreme Court affirmed the grant of preliminary injunctive relief with respect to the regulation relating to centralized impoundments, but it reversed the grant of preliminary injunctive relief with respect to the regulation relating to well development impoundments.[3] With respect to Count V of the Petition, the Supreme Court reversed the grant of preliminary injunctive relief.

         We directed the parties to file dispositive motions by March 14, 2018. On August 31, 2017, the Coalition filed an application for summary relief directed to Count I of the Petition. Count I challenged Sections 78a.15');">78a.15(f) and (g) and certain definitions found in Section 78a.1 of the Unconventional Well Regulations, referred to generally as the public resource regulations. In a reported en banc Opinion and Order, this Court granted in part and denied in part the Coalition's application for summary relief with respect to Count I. Marcellus Shale Coal. v. Dep't of Envtl. Prot., 193 A.3d 447 (Pa. Cmwlth.) (en banc) (MSC III), appeal quashed, 198 A.3d 330 (Pa. 2018). In so doing, we declared void and unenforceable certain definitions found in Section 78a.1. We also declared unconstitutional and unenforceable Section 78a.15');">78a.15(g)'s requirement that the Department, as part of its review of a well permit application, consider comments and recommendations submitted by municipalities. We were constrained to do so because the Pennsylvania Supreme Court in Robinson Township v. Commonwealth, 83 A.3d 901 (Pa. 2013) (Robinson Twp. II), declared unconstitutional and unenforceable the statutory authorization for that provision-Section 3215(d) of Act 13 of 2012 (Act 13), 58 Pa. C.S. § 3215(d). [4] Robinson Twp. II, 83 A.3d at 984-85, 1000. We denied the Coalition's application for summary relief as to Count I in all other respects. MSC III, 193 A.3d at 486.

         On March 14, 2018, the parties filed the cross-applications for summary relief that are presently before the Court. The parties have each filed responses and briefs in support of their respective positions. The Sierra Club, Damascus Citizens for Sustainability, and Earthworks, as friends of the Court, filed a brief in opposition to the Coalition's application for summary relief. The Court, sitting en banc, heard oral argument on the cross-applications on October 17, 2018. The cross-applications are now ripe for disposition.

         III. GOVERNING LEGAL STANDARDS

         A. Summary Relief

         Applications for summary relief addressed to this Court's original or appellate jurisdiction are authorized under Rule 1532(b) of the Pennsylvania Rules of Appellate Procedure, which provides: "At any time after the filing of a petition for review in an appellate or original jurisdiction matter the court may on application enter judgment if the right of the applicant thereto is clear." (Emphasis added.) Summary relief is similar to summary judgment under the Pennsylvania Rules of Civil Procedure, in that the requested relief is only appropriate where there are no disputed issues of material fact and it is clear that the applicant is entitled to the requested relief under the law. See Scarnati v. Wolf, 173 A.3d 1110, 1118 (Pa. 2017). Moreover, we review the record in the light most favorable to the nonmoving party, resolving all doubts as to the existence of disputed material facts against the moving party. Id.

         B. Declaratory Relief

         The Coalition seeks relief under the Declaratory Judgments Act.[5]A declaratory judgment is only appropriate to resolve a real controversy. Gulnac by Gulnac v. S. Butler Sch. Dist., 587 A.2d 699, 701 (Pa. 1991). As the Pennsylvania Supreme Court explained in Gulnac: "A declaratory judgment must not be employed to determine rights in anticipation of events which may never occur or for consideration of moot cases or as a medium for the rendition of an advisory opinion which may prove to be purely academic." Id. The decision to grant or deny declaratory relief lies "within the sound discretion of [the] court of original jurisdiction." Id.

         We note as well that this matter is a pre-enforcement challenge to the Unconventional Well Regulations. Generally, courts should not prematurely entangle themselves in abstract disagreements over the meaning of an agency regulation. Instead, such disagreements are better resolved first through the agency adjudicatory process as a matter of enforcement. See Bayada Nurses, Inc. v. Dep't of Labor & Indus., 8 A.3d 866, 875 (Pa. 2010) (citing Arsenal Coal, 477 A.2d 1333); see also Tire Jockey Serv., Inc. v. Dep't of Envtl. Res., 915 A.2d 1165, 1187 (Pa. 2007) (ruling on challenge to regulation in context of appeal from enforcement action before Environmental Hearing Board). Where, however, the impact of a regulation on an industry is direct and immediate, pre-enforcement judicial review is appropriate. Bayada Nurses, 8 A.3d at 875-76; see also EQT Prod. Co. v. Dep't of Envtl. Prot., 130 A.3d 752, 759 (Pa. 2015) (EQT I) (holding pre-enforcement review of dispute over statutes establishing penalty exposure under The Clean Streams Law[6] was appropriate because Department's threat of multi-million dollar liability was direct, immediate, and substantial).

         C. Tire Jockey

         "[W]hen an agency adopts a regulation pursuant to its legislative [rulemaking] power, . . . it is valid and binding upon courts as a statute so long as it is (a) adopted within the agency's granted power, (b) issued pursuant to proper procedure, and (c) reasonable." Tire Jockey, 915 A.2d at 1186. The challenged regulations in this matter are legislative rules and thus may be challenged on any or all of these three grounds.[7] MSC II, 185 A.3d at 995.

         To determine whether a regulation is adopted within an agency's granted power, we look for statutory language authorizing the agency to promulgate the legislative rule and examine that language to determine whether the rule falls within the grant of authority. See Slippery Rock Area Sch. Dist. v. Unemployment Comp. Bd. of Review, 983 A.2d 1231, 1239-41 (Pa. 2009). The legislature's delegation must be clear and unmistakable. Eagle Envtl. II, L.P. v. Dep't of Envtl. Prot., 884 A.2d 867, 878 (Pa. 2005). In performing this analysis, our Supreme Court has recognized the importance of substantive rulemaking as a practice widely used in administrative law, which we should uphold "whenever the statutory delegation can reasonably be construed to authorize it." Id. at 877. When considering, then, whether the agency has the authority to enact a particular substantive rule, we must consider both the letter of the statutory delegation to create that rule as well as "the purpose of the statute and its reasonable effect." Id. We also consider as part of this analysis whether the regulation is consistent with the enabling statute, for "[c]learly, the legislature would not authorize agencies to adopt . . . regulations inconsistent with the . . . enabling statutes." Slippery Rock, 983 A.2d at 1241. When, therefore, a regulation presents "an actual conflict with the statute," we cannot reasonably understand the regulation to be within the agency's ambit of authority, and the statute must prevail. AMP Inc. v. Cmwlth., 814 A.2d 782, 786 (Pa. Cmwlth. 2002), aff'd, 852 A.2d 1161 (Pa. 2004); see also Slippery Rock, 983 A.2d at 1241 ("[A]ll regulations, whether legislative or interpretive[, ] 'must be consistent with the statute under which they were promulgated.'" (quoting Popowsky v. Pa. Pub. Util. Comm'n, 910 A.2d 38, 52 (Pa. 2006)).

         As for the second Tire Jockey standard, we examine whether the agency promulgating the regulation followed the proper procedures. Generally, in promulgating regulations an agency must comply with any special procedures set forth in its enabling legislation as well as the procedures set forth in the Commonwealth Documents Law, [8] the Commonwealth Attorneys Act, [9] and the Regulatory Review Act.[10] See Germantown Cab Co. v. Phila. Parking Auth., 993 A.2d 933, 937 (Pa. Cmwlth. 2010) (en banc). "A regulation not promulgated in accordance with the statutory requirements will be declared a nullity." Id.

         As to the final Tire Jockey standard, we note that where legislative rules are adopted within the agency's granted power and issued pursuant to proper procedure, they enjoy a presumption of reasonableness. Pottstown, 712 A.2d at 744; Pa. Ass'n of Rehab. Facilities v. Foster, 624 A.2d 270, 273 (Pa. Cmwlth. 1993). In considering a reasonableness challenge, we will not substitute our judgment for that of the agency:

"[I]t is not enough that [the agency's regulation] shall appear to be unwise or burdensome or inferior to another. Error or unwisdom is not equivalent to abuse. What has been ordered must appear to be so entirely at odds with fundamental principles as to be the expression of a whim rather than an exercise of judgment."

Slippery Rock, 983 A.2d at 1242 (quoting Pa. Human Relations Comm'n v. Uniontown Area Sch. Dist., 313 A.2d 156, 169 (Pa. 1973) (opinion announcing the judgment of the court)) (second alteration in original).

         IV. ANALYSIS OF CROSS-APPLICATIONS

         A. Area of Review (Count II)-Agencies' Application

         The Agencies move for partial summary relief on Count II of the Petition, contending that the Coalition cannot prevail on its claim that the Agencies lack the authority to enact Sections 78a.52a and 78a.73(c) and (d) of the Unconventional Well Regulations, [11] referred to in this matter as the area of review regulations.

         Section 78a.52a of the Unconventional Well Regulations requires a well operator to identify all active, inactive, orphan, abandoned, and plugged and abandoned wells[12] that have a well bore path within 1, 000 feet of the operator's well bore, measured horizontally from the operator's vertical well bore and from the surface above the entire length of any horizontal well bore.[13] The operator must then submit a report to the Department that summarizes its review, including, inter alia, a monitoring plan. 25 Pa. Code § 78a.52a(c).

         Sections 78a.73(c) and (d) of the Unconventional Well Regulations impose advance notice, visual monitoring, and remediation obligations in the event that stimulation of a well by hydraulic fracturing, or "fracking," causes a communication incident or alteration of one of the wells identified in the area of review survey. These obligations purportedly address the concern that gas, oil, brine, or fluids used in fracking a particular well may migrate to other wells nearby, rise to the surface, and contaminate groundwater.[14] In the event of such an incident or alteration, the operator of the stimulated well must notify the Department of the incident, immediately cease well stimulation activities, and take steps to protect the waters of the Commonwealth from pollution. The well operator may not resume well stimulation activities without the permission of the Department. Finally, where well stimulation activities cause an alteration to an orphan, abandoned, or plugged and abandoned well, the operator of the stimulated well is obligated to plug the altered well or adopt it and place it into production.[15]

         In its Petition, the Coalition articulates several challenges to the area of review regulations. (Petition ¶ 49(a)-(f).) First, the Coalition generally contends that there is no legal authority for the new "area of review" requirements. The Coalition further argues that requiring someone other than the well owner to plug an orphan, abandoned, or plugged and abandoned well conflicts with Section 3220 of Act 13, 58 Pa. C.S. § 3220, which imposes plugging requirements only on the well owner or operator. The Coalition also contends that the regulations are void for vagueness, citing the Department's intent to issue a follow-up technical guidance document. The Coalition argues that Section 78a.52a(e) of the Unconventional Well Regulations, 25 Pa. Code § 78a.52a(e), should be stricken as unlawful and unreasonable, as the provision grants the Department unlimited authority and discretion to impose additional requirements on well operators without any limiting principle, including the potential to prohibit hydraulic fracturing entirely. The Coalition contends that Section 78a.73(c) of the Unconventional Well Regulations is unlawful and unreasonable to the extent it imposes a duty on well operators to monitor orphan, abandoned, and plugged and abandoned wells simply because the true vertical depth of those wells is unknown. Finally, the Coalition contends that the monitoring and remediation provisions would require a well operator to enter illegally onto property owned and controlled by others-i.e., to trespass.

         The Agencies seek summary relief only with respect to the Coalition's lack of authority challenge under the first Tire Jockey standard. In support, the Agencies argue first that the area of review regulations fall within the Agencies' grant of rulemaking authority under The Clean Streams Law. Specifically, they direct us to Section 402(a) of The Clean Streams Law, 35 P.S. § 691.402(a), which provides the Department with authority to deal with potential pollution of the waters of the Commonwealth. Section 402(a) of The Clean Streams Law provides, in relevant part:

Whenever the [D]epartment finds that any activity, not otherwise requiring a permit under this act, including but not limited to the impounding, handling, storage, transportation, processing or disposing of materials or substances, creates a danger of pollution of the waters of the Commonwealth or that regulation of the activity is necessary to avoid such pollution, the [D]epartment . . . may otherwise establish the conditions under which such activity shall be conducted . . . .

(Emphasis added.) The Agencies tether this authority to the general authority given the Department by Section 5(b)(1) of The Clean Streams Law, added by the Act of July 31, 1970, P.L. 653, 35 P.S. § 691.5(b)(1), to "[f]ormulate, adopt, promulgate and repeal such rules and regulations . . . as are necessary to implement the provisions of this act." The Agencies argue that the area of review regulations address the potential for pollution posed by fracking activities in proximity to other oil and gas wells, which they argue falls within this grant of authority under The Clean Streams Law.

         The Agencies also claim authority for the area of review regulations in Sections 3202(1), 3217, 3259, and 3274 of Act 13. See 58 Pa. C.S. §§ 3202(1) (noting purpose of Act 13 is to "[p]ermit optimal development of oil and gas resources of the Commonwealth consistent with protection of the health, safety, environment and property of Pennsylvania citizens"), 3217, 3259 (making unlawful, inter alia, drilling for or production of oil and gas "in any manner as to . . . affect public health, safety, welfare or the environment"), 3274 (generally authorizing EQB to "promulgate regulations to implement this chapter"). Of these provisions, Section 3217 of Act 13 is the one that most specifically addresses concerns about the potential harm that unconventional well operations may have on waters of the Commonwealth. It provides, in relevant part:

(a) General Rule.-To aid in protection of fresh groundwater, well operators shall control and dispose of brines produced from the drilling, alteration or operation of an oil or gas well in a manner consistent with . . . The Clean Streams Law, or any regulation promulgated under The Clean Streams Law.
(b) Casing.-To prevent migration of gas or fluids into sources of fresh groundwater and pollution or diminution of fresh groundwater, a string or strings of casing shall be run and permanently cemented in each well drilled through the fresh water-bearing strata to a depth and in a manner prescribed by regulation by the [D]epartment.

58 Pa. C.S. § 3217. The Agencies posit:

The Area of Review Regulations are within the granted authority to promulgate regulations (Section 3274) to protect the public and the environment from potential harms from drilling activity (Section 3259) that can result from the migration of fluids or gases generated during development of a new unconventional well through the ground and groundwater to existing wells (Section 3217).

(Agencies' Br. in Supp. at 27.)

         Turning to specific portions of the area of review regulations, the Agencies seek summary relief with respect to the Coalition's challenge to Section 78a.52a(e) of the Unconventional Well Regulations. They reject the Coalition's contention that the regulation grants any new power to the Department. Instead, the Agencies argue that the regulation is interpretive, not legislative, as it merely restates and clarifies the authority afforded the Department to request additional information from a permit applicant and impose additional safeguards on an ad hoc basis. As an interpretive regulation, the Agencies contend that Section 78a.52a(e) is "inherently valid," citing the Pennsylvania Supreme Court's decision in Pottstown.[16] Generally, the Agencies cite the same statutory provisions in The Clean Streams Law and Act 13 set forth above. Specifically, the Agencies also cite Section 3211(b)(1) of Act 13, 58 Pa. C.S. § 3211(b)(1), which addresses the contents of a plat that applicants must submit with their permit application.[17] The Agencies argue that these statutory provisions provide the Department with case-by-case authority to request additional information from a permittee and to impose additional requirements on a permittee where warranted to ensure that the proposed fracking activity poses no threat to the waters of the Commonwealth and will not adversely affect public health or safety or the environment.

         Next, the Agencies address the Coalition's challenge to Sections 78a.73(c) and (d) of the Unconventional Well Regulations, specifically the Coalition's claim that the provisions require well owners and operators to trespass and to compel unconventional well owners and operators to plug or adopt wells that do not belong to them. Citing again the provisions of The Clean Streams Law and Act 13 set forth above, the Agencies argue that they enjoy broad authority to protect the public from the impact of hydraulic fracturing. Specifically, they cite Section 316 of The Clean Streams Law, added by the Act of August 23, 1965, P.L. 372, 35 P.S. § 691.316, which provides:

Whenever the [D]epartment finds that pollution or a danger of pollution is resulting from a condition which exists on land in the Commonwealth the [D]epartment may order the landowner or occupier to correct the condition in a manner satisfactory to the [D]epartment or it may order such owner or occupier to allow a mine operator or other person or agency of the Commonwealth access to the land to take such action.

         The Agencies also cite a basket of other statutes and regulations, [18] which generally require a person that causes pollution to remediate that pollution regardless of where the pollution lies-i.e., even if the pollution is on someone else's property.

         Finally, the Agencies direct the Court to two decisions from the Pennsylvania Supreme Court. The first, Commonwealth v. Harmer Coal Co., 306 A.2d 308 (Pa. 1973), appeal dismissed, 415 U.S. 903 (1974), involved permits under The Clean Streams Law to discharge acid mine drainage into a surface water of the Commonwealth. The applicant in that case maintained that it did not need to treat polluted water that migrated into its mine from a nearby inactive mine or polluted water that remained in the nearby inactive mine that needed to be pumped out to shore up the stability of the barrier between the inactive mine and the applicant's mine. The Supreme Court rejected that contention, concluding that the applicable statutory language required the operator of a mine to treat all pollution discharged from the mine and any adjacent mine as needed to operate the subject mine. Harmer Coal, 306 A.2d at 321.

         The Agencies cite the second decision, Chartiers Block Coal Co. v. Mellon, 25 A. 597 (Pa. 1893), solely for the proposition that the owners of a severed mineral estate have an implied right of entry to the surface estate to access and remove their subsurface asset. The Agencies cite other decisions for the proposition that property owners must allow access to property to abate nuisances. See Del. Div. Canal Co. v. Cmwlth., 60 Pa. 367 (1869); Ryan v. Dep't of Envtl. Res., 373 A.2d 475 (Pa. Cmwlth. 1977) (en banc). The Agencies also cite Section 610 of The Clean Streams Law, 35 P.S. § 691.610, and Section 602(a) of the Solid Waste Management Act (SWMA), [19] which the Agencies contend authorize the Department to require property owners to grant access to their properties to remediate pollution.

         In response, the Coalition mostly challenges the scope, justification, and reasonableness of the area of review regulations, particularly Section 78a.73(c), which requires a well operator to notify the Department immediately and cease stimulating a well in the event of a communication incident or alteration. The Coalition also strongly questions the value of imposing any identification and monitoring requirement with respect to "shallow wells"-i.e., wells with a total depth insufficient to reach the Marcellus shale formation targeted by the unconventional well industry. Citing discovery material, the Coalition argues that the Department has no record of any communication incidents between an unconventional well and a shallow well. Moreover, the Department is aware of only nine communication incidents relating to fracking of unconventional wells, only three of which involved a conventional well. In response to the Coalition's discovery requests, the Department provided no details of alleged environmental impacts resulting from those three incidents. The Coalition presses that three communication incidents through the course of stimulating 10, 000 unconventional wells "cannot and does not provide the facts needed for this Court to conclude that the [area of review] regulation prevents pollution or ensures safe operations." (Coalition Br. in Opp'n at 18.) Moreover, the Coalition, citing testimony adduced during discovery from the Agencies' proposed witness on Count II, Seth Polepko, emphasizes that the area of review regulation will not prevent communication incidents, which are few and with no verified environmental impact. As summarized by the Coalition: "The [area of review] regulation is thus a costly and elaborate solution in search of a problem." (Id. at 19.) In short, the Coalition argues that the area of review regulations impose excessive obligations on the industry at a substantial cost with no discernable benefit.

         The Coalition also argues that the Agencies have failed to provide any statutory authority for the portions of the area of review regulations that require well operators to enter, inspect, and monitor wells on the lands of others and over which the stimulating well operator has no control. Moreover, the Coalition urges the Court to reject the Agencies' general citations to Act 13 and The Clean Streams Law as authority for the area of review regulations specifically. Finally, the Coalition emphasizes the fact that, even if the Court strikes the area of review regulations, the Department retains authority under The Clean Streams Law and related existing regulations, 25 Pa. Code Ch. 91, to address any impacts to waters of the Commonwealth from communication incidents as circumstances warrant, just as it addressed the nine communication incidents that occurred prior to adoption of the area of review regulations.

         Initially, we note that the only question before the Court on summary relief is whether the area of review regulations fall within a grant of authority by the General Assembly to the Agencies, in particular the EQB. For purposes, then, of this analysis, we discount many of the Coalition's arguments in opposition to the Agencies' application for summary relief, which are addressed to the reasonableness of the area of review regulations.

         In MSC I, this Court analyzed the question of the Agencies' authority to promulgate the area of review regulations in the context of the Coalition's request for preliminary injunctive relief. With slight modification, particularly in light of the Pennsylvania Supreme Court's decision in MSC II, we adopt that analysis here. Looking first at Section 78a.52a of the Unconventional Well Regulations, we find adequate legislative authority under Sections 5(b)(1) and 402(a) of The Clean Streams Law and Sections 3202, 3217, 3259, and 3274 of Act 13 to support the area of review survey portions of the challenged regulations, specifically 25 Pa. Code § 78a.52a(a), (b), (c)(1)-(2), (4)-(6), (d), and (e). Accordingly, we will grant the Agencies' application for partial summary relief with respect to the Coalition's challenge to these provisions under the first Tire Jockey standard.

         On the other hand, we conclude that the Agencies have failed to identify any statutory authority to justify regulations that impose entry, inspection, and monitoring obligations with respect to wells on the lands of others and over which the stimulating well operator has no control, particularly in the absence of any actual pollution or threatened pollution on those lands attributable to the stimulating well operator's activities. As the Supreme Court recognized in MSC II, the authority given to the Department under The Clean Streams Law, which the Agencies cite in support of their current application for partial summary relief,

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 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 [the Department] would be authorized to require access onto private land in the case of an inaccessible well which posed no apparent danger of pollution.

MSC II, 185 A.3d at 1000.[20] Moreover, with respect to the plugging requirement, this Court in MSC I identified a substantial legal question as to whether Section 78a.73(d) of the Unconventional Well Regulations is inconsistent with the well plugging requirements set forth in Section 3220 of Act 13, which places the onus on the owner or operator to plug its own wells, not the wells of others, and how this provision relates to the Department's authority to plug wells under Section 3271 of Act 13, 58 Pa. C.S. § 3271 (relating to well plugging funds). The Agencies fail to address that question in their application for summary relief and supporting brief.

         For the above reasons, the Agencies have failed to establish a clear right to relief with respect to the Coalition's legal challenge to Sections 78a.52a(c)(3) and 78a.73(c) and (d) of the Unconventional Well Regulations, which require well operators to monitor all wells identified in the area of review survey, regardless of whether those wells are accessible to the well operator, and require well operators to plug any well within the survey area that becomes impacted by the well operator's stimulation activities, again regardless of whether the affected well is accessible to the well operator and whether the impact results in actual or threatened pollution of the waters of the Commonwealth. Accordingly, we will deny the Agencies' application for partial summary relief directed to these provisions under the first Tire Jockey standard.

         B. On-Site Processing (Count III)-Cross-Applications

         Count III of the Petition is directed toward a single provision, Section 78a.58(f) of the Unconventional Well Regulations, 25 Pa. Code § 78a.58(f), relating to the processing of residual waste generated from well operations. It provides: "Processing residual waste generated by the development, drilling, stimulation, alteration, operation or plugging of oil or gas wells other than as provided for in subsections (a) and (b) shall comply with the [SWMA].[21]" (Citation omitted.)

         In its Petition, the Coalition alleges that Section 78a.58(f) requires that certain on-site residual waste processing activities comply with the SWMA. (Petition ¶¶ 51, 52.) The Coalition notes that, as a result, on-site waste processing will be subjected to requirements not previously imposed on the industry with no grandfathering or period of transition. (Id. ¶¶ 53, 54.) In terms of the legality of this provision, the Coalition contends only that the regulation conflicts with Section 3273.1 of Act 13, 58 Pa. C.S. § 3273.1, which the Coalition maintains exempts well sites from the permitting and bond requirements under the SWMA. (Id. ¶ 55.)

         The parties' respective briefing on this aspect of the cross-applications is less than pellucid. Indeed, while some disagreement between the parties appeared evident to the Court at prior stages of this litigation, it is somewhat difficult now to discern any meaningful disagreement over the regulation's proper interpretation and application. Nonetheless, whether the Coalition can prevail on this count of the Petition comes down to a pure question of law, that being whether the challenged regulation is in conflict with Section 3273.1 of Act 13. A legislative rule in conflict with statute cannot stand. Slippery Rock, 983 A.2d at 1236.

         Section 3273.1(a) of Act 13, 58 Pa. C.S. § 3273.1(a), provides:

The obligation to obtain a permit and post a bond under . . . the [SWMA], and to provide public notice under . . . The Administrative Code of 1929,[22] for any pit, impoundment, method or facility employed for the disposal, processing or storage of residual wastes generated by the drilling of an oil or gas well or from the production of wells which is located on the well site, [23] shall be considered to have been satisfied if the owner or operator of the well site meets the following conditions:
(1) the well is permitted under the requirements of [S]ection 3211 (relating to well permits) [of Act 13, 58 Pa. C.S. § 3211, ] or registered under [S]ection 3213 (relating to well registration and identification) [of Act 13, 58 Pa. C.S. § 3213];
(2) the owner or operator has satisfied the financial security requirements of [S]ection 3225 (relating to bonding) [of Act 13, 58 Pa. C.S. § 3225, ] by obtaining a surety or collateral bond for the well and well site; and
(3) the owner or operator maintains compliance with this chapter and applicable regulations of the [EQB].

         Section 3273.1(c) of Act 13, 58 Pa. C.S. § 3273.1(c), is also germane: "This section does not diminish or otherwise affect duties or obligations of an owner or operator under the [SWMA]. This section does not apply to waste classified as hazardous waste . . . ."

         When interpreting a statute, this Court is guided by the Statutory Construction Act of 1972, 1 Pa. C.S. §§ 1501-1991, which provides that "[t]he object of all interpretation and construction of statutes is to ascertain and effectuate the intention of the General Assembly." 1 Pa. C.S. § 1921(a). "The clearest indication of legislative intent is generally the plain language of a statute." Walker v. Eleby, 842 A.2d 389, 400 (Pa. 2004). "When the words of a statute are clear and free from all ambiguity, the letter of it is not to be disregarded under the pretext of pursuing its spirit." 1 Pa. C.S. § 1921(b). Only "[w]hen the words of the statute are not explicit" may this Court resort to statutory construction. Id. § 1921(c).

         Here, we find no ambiguity in the statutory language. Generally speaking, Section 3273.1(a) of Act 13 recognizes that residual waste[24] will be generated by oil and gas operations on a well site. Accordingly, under this section, an owner or operator with a permitted/registered and bonded well site under Act 13 is excused from having to acquire a separate permit, file a separate bond, and provide separate notice under the SWMA with respect to the on-site handling (e.g., "disposal, processing or storage") of that residual waste. In other words, the process under Act 13 satisfies the permit, bonding, and notice requirements under the SWMA. Such is the case so long as the well owner or operator maintains compliance with Act 13 and the EQB's regulations promulgated with respect thereto. Finally, Section 3273.1(c) of Act 13 makes clear that the well owner or operator-though relieved of the separate permit, bonding, and notice requirements-must still comply with the other obligations imposed on owners and operators under the SWMA.

         The Coalition's concern seems to be that, notwithstanding the foregoing, Section 78a.58(f) of the Unconventional Well Regulations is worded so broadly that it requires separate permitting, bonding, and notice under the SWMA. This concern is the source of the Coalition's conflict claim. (Petition ¶ 55.) In their brief in opposition to the Coalition's application for summary relief, however, the Agencies dispute such a reading:

[The Coalition] manufactures a "conflict" by reading into 25 Pa. Code § 78a.58(f) a requirement that all residual waste processing at the well site other than the processing of fluids under subsections (a) and (b) must be permitted, meet the bonding requirements, and provided [sic] public notice in accordance with the SWMA. However, 25 Pa. Code § 78a.58(f) creates no such requirement.

(Agencies' Br. in Supp. of Resp. to Pet'r's Appl. at 33-34.) Instead, the Agencies contend that Section 78a.58(f) is merely a restatement of Section 3273.1(c) of Act 13.

         As noted above, declaratory relief is only available to resolve a real controversy. Gulnac, 587 A.2d at 701. Here, based on our reading of the parties' respective positions as to the proper interpretation of Section 78a.58(f) of the Unconventional Well Regulations, as well as our construction of Section 3273.1(a) of Act 13, we discern no conflict or controversy appropriate for pre-enforcement review under the Declaratory Judgments Act. Indeed, both parties appear to adopt the same reading of Section 78a.58(f), which does not, in our view, conflict with our reading of Section 3273.1(a) of Act 13. Accordingly, we will deny the Coalition's application for summary relief on Count III of the Petition and grant the Agencies' cross-application.

         C. Well Development and Centralized Impoundments (Count IV)- Agencies' Application

         1. Well Development Impoundments

         The well development impoundment regulation, Section 78a.59b of the Unconventional Well Regulations, 25 Pa. Code § 78a.59b, establishes new registration, construction, security, and restoration standards for well development impoundments.[25] Any preexisting well development impoundments must come into compliance with the new standards or be restored to certain preconstruction conditions. In paragraph 64 of its Petition, the Coalition claims that the regulation is unlawful, illegal, void, and unenforceable because the Agencies lack authority under Act 13 to promulgate regulations applicable to freshwater impoundments[26] off well sites. Instead, the Coalition alleges that such impoundments are regulated under The Clean Streams Law and the Dam Safety and Encroachments Act (DSEA).[27] (Petition ¶ 64(a).) Further, the Coalition maintains that the obligations imposed on freshwater impoundments by the regulation violate Article III, Section 32 of the Pennsylvania Constitution, which generally prohibits enactment of a "local or special law in any case which has been or can be provided for by general law." (Id. ¶ 64(c).) The Coalition also challenges the regulation as unreasonable. (Id. ¶ 64(d).) The Agencies' application only seeks summary relief with respect to the Coalition's lack of authority challenge under Tire Jockey and its constitutional challenge.

         As noted above, to prevail on its lack of authority challenge under Tire Jockey, the Coalition must establish the absence of granted authority from the General Assembly. In their application, the Agencies maintain that their authority to promulgate the well development impoundment regulation lies within three statutes-i.e., The Clean Streams Law, Act 13, and the DSEA.[28] To prevail, then, on its Tire Jockey challenge, the Coalition must do more than merely establish that the Agencies lack the authority under any one of these statutes. Instead, the Coalition must establish that none of these statutes provide the necessary grant of authority to the Agencies to promulgate the well development impoundment regulation.

         In Count IV of the Petition, however, the Coalition seeks a declaration of invalidity based only on its view that Act 13, in isolation, does not authorize the Department to regulate "freshwater impoundments off well sites, including well development impoundments." (Petition ¶ 64(a).) This request appears to be driven by the Coalition's perception that Act 13 is "the principal statute under which the Agencies promulgated Chapter 78a." (Coalition Br. in Opp'n at 37.) The Agencies address that particular challenge in their application for summary relief, citing several provisions of Act 13 as the source authority for the well development impoundment regulation. See 58 Pa. C.S. §§ 3202(1) (noting purpose of Act 13 is to "[p]ermit optimal development of oil and gas resources of [the] Commonwealth consistent with protection of the health, safety, environment and property of Pennsylvania citizens"); 3259(2)(ii) (making unlawful, inter alia, drilling for or production of oil and gas "in any manner as to . . . affect public health, safety, welfare or the environment"); 3274 (generally authorizing EQB to "promulgate regulations to implement this chapter").

         The Coalition's perception of the source authority of the Unconventional Well Regulations, however, is not reality. The Agencies promulgated the Unconventional Well Regulations to regulate a particular method of natural gas extraction, not to implement a particular statute. See 25 Pa. Code § 78a.2 ("This chapter applies to unconventional wells and supersedes any regulations in Chapter 78 . . . applicable to unconventional wells."). In so doing, the Agencies identified several sources of statutory authority, including, inter alia, The Clean Streams Law and the DSEA. Final Rulemaking, Environmental Protection Performance Standards at Oil and Gas Well Sites, 46 Pa. B. 6431, 6432 (Oct. 8, 2016) (Final Rulemaking). As noted above, to prevail under the first Tire Jockey standard, the Coalition must show a complete absence of granted authority under all of the cited statutes.

         The Coalition's concession that The Clean Streams Law and the DSEA provide this authority means that even if we were to find an absence of authority in Act 13, the Coalition is not entitled to a declaration of invalidity under the first Tire Jockey standard. See also MSC II, 185 A.3d at 1003 ("Absent any particularized contention tending to cast doubt upon the Agencies' position that [the] DSEA allows for such regulations, there is little basis in the present record to believe the Agencies lacked the authority to promulgate Section 78a.59b(b)." (citation omitted)). For this reason, we will grant the Agencies' application for summary relief with respect to the Coalition's claim that the Agencies lack the statutory authority to promulgate Section 78a.59b of the Unconventional Well Regulations.

         We turn now to the Coalition's claim that the well development impoundment regulation is an unconstitutional special law under Article III, Section 32 of the Pennsylvania Constitution.[29] The Coalition mounts what is, in essence, an equal protection challenge to the regulation. See Pa. Tpk. Comm'n v. Cmwlth., 899 A.2d 1085, 1094-95 (Pa. 2006); DeFazio v. Civil Serv. Comm'n of Allegheny Cty., 756 A.2d 1103, 1105 (Pa. 2000). "The common constitutional principle at the heart of the special legislation proscription and the equal protection clause is that like persons in like circumstances should be treated similarly by the sovereign." Tpk. Comm'n, 899 A.2d at 1094. Nonetheless, the legislature, and by extension agencies granted authority to promulgate legislative rules, may regulate based on classifications, so long as (1) the challenged statute or regulation promotes a legitimate state interest, (2) the disparate treatment is reasonable and based on some difference that justifies the dissimilar treatment, and (3) there is a "fair and substantial relationship" between the requirements imposed and the overall objective of the underlying legislation. Robinson Twp. v. Cmwlth., 147 A.3d 536, 581 (Pa. 2016) (Robinson Twp. III).

         In their application, the Agencies contend that their regulation of well development impoundments meets this standard. They rely on excerpts from two documents to support their contention. The first is the Regulatory Analysis Form (RAF), which the Agencies submitted to the Independent Regulatory Review Commission (IRRC) for consideration with the proposed Unconventional Well Regulations. The second is the Final Rulemaking, published in the Pennsylvania Bulletin on October 8, 2016. Both, the Agencies argue, set forth characteristics of well development impoundments that justify unique treatment.

         According to these documents, well development impoundments can contain millions of gallons of fluid transported to the impoundments from a variety of sources. The impoundments can hold both fresh water and other Department-approved fluids, including mine influenced water and treated water from sewage plants. In other words, the fluids contained in these impoundments are not indigenous to the watershed in which the impoundment is located. Moreover, the Agencies note that the impoundments are typically located in remote and rural areas of the Commonwealth, "where sensitive aquatic resources often reside." (Agencies' Br. in Supp. at 47-48.) In short, the Agencies contend that the size, quality, and characteristics of the stored fluid and the location of these impoundments warrant heightened regulatory standards to ensure that they do not fail.

         In response, the Coalition notes that while the Agencies have attempted to identify a legitimate state interest based on general and summary characteristics of well development impoundments in the unconventional well industry, the Agencies have failed to explain how those purported differences warrant dissimilar treatment from freshwater impoundments in other industries. The Coalition also claims that there is no record support for the Agencies' contention that (a) well development impoundments store water in a different watershed from the water's original source and (b) that, even if true, this is unique for impoundments in the unconventional well industry. The Coalition emphasizes that having safe impoundments is a goal across industries, which is why the DSEA Regulations require permits for impoundments that exceed a certain size. See 25 Pa. Code § 105.3(a)(2).

         Upon review and consideration of the parties' arguments, we will deny the Agencies' application for summary relief on the constitutional question. Although the Agencies advance what appear to be largely uncontroverted facts about the characteristics of well development impoundments generally, we nonetheless agree with the Coalition that the Agencies fail to elucidate how those characteristics, when compared with impoundments in other industries, warrant special treatment in the Unconventional Well Regulations. Moreover, neither party has explained, with appropriate citation to legal authority, the extent to which so-called "freshwater" impoundments in other, unidentified industries are regulated. We cannot dispose of a special law constitutional challenge without comparing how one class of impoundment is treated when compared to another. Only by making this comparison can we determine whether the disparate treatment is rational under the appropriate legal test. Both parties fail to provide the Court with the necessary factual and legal argument to make that determination as a matter of summary relief.[30]

         2. Centralized Impoundments

         The centralized impoundment regulation, Section 78a.59c of the Unconventional Well Regulations, 25 Pa. Code § 78a.59c, [31] requires a well operator using a centralized impoundment either to close the centralized impoundment pursuant to standards set forth in the regulation or to obtain a permit under the Agencies' Residual Waste Management Regulations.[32] In paragraph 64 of its Petition, the Coalition claims that the centralized impoundment regulation is unlawful, illegal, void, and unenforceable because the SWMA does not require a permit for centralized storage impoundments. (Petition ¶ 64(b).) The Coalition also claims that the centralized impoundment regulation is an unconstitutional special law under Article II, Section 32 of the Pennsylvania Constitution. (Id. ¶ 64(c).) The Coalition also challenges the regulation as unreasonable. (Id. ¶ 64(d).) The Agencies' application only seeks summary relief with respect to the Coalition's lack of authority challenge under Tire Jockey.

         The Agencies acknowledge that prior to the passage of the Unconventional Well Regulations, the Agencies regulated the construction and maintenance of centralized impoundments in the unconventional well industry through a document titled "Design and Construction Standards for Centralized Impoundment Dams," designated DEP # 8000-PM-OOGM0084 (Prior Standards). (Agencies' Br. in Supp. at 11 & Ex. E.) The Prior Standards generally required the operators of centralized impoundments to design, construct, and maintain them "to be structurally sound and reasonably protected from unauthorized acts of third parties." (Id. at Ex. E.) In addition, the Prior Standards required centralized impoundments to comply with the Agencies' general oil and gas regulations (25 Pa. Code Ch. 78) as well as the DSEA Regulations. The Prior Standards also addressed the following: (1) areas where centralized impoundments are prohibited; (2) construction standards; (3) liner system requirements; (4) water quality monitoring; and (5) professional engineer certification. The Prior Standards did not mention compliance with the SWMA or permitting under the Residual Waste Management Regulations.

         The Agencies further acknowledge that the new centralized impoundment regulation imposes more rigorous requirements than the Prior Standards. They nonetheless claim that promulgation of the new centralized impoundment regulation falls within their granted authority under The Clean Streams Law, the SWMA, and Act 13. With respect to The Clean Streams Law, the Agencies cite specifically Section 402(a) of The Clean Streams Law, which provides:

Whenever the [D]epartment finds that any activity, not otherwise requiring a permit under this act, including but not limited to the impounding, handling, storage, transportation, processing or disposing of materials or substances, creates a danger of pollution of the waters of the Commonwealth or that regulation of the activity is necessary to avoid such pollution, the [D]epartment may, by rule or regulation, require that such activity be conducted only pursuant to a permit issued by the [D]epartment or may otherwise establish the conditions under which such activity shall be conducted, or the [D]epartment may issue an order to a person or municipality regulating a particular activity. Rules and regulations adopted by the [D]epartment pursuant to this section shall give the persons or municipalities affected a reasonable period of time to apply for and obtain any permits required by such rules and regulations.

(Emphasis added.) As further support, the Agencies cite generally their authority to promulgate regulations "as are necessary to implement the provisions of" The Clean Streams Law as well as the declaration of policy underlying the law. Id. §§ 691.4-.5.[33]

         The Agencies further contend that requiring centralized impoundments to comply with the Residual Waste Management Regulations is consistent with the goal of the SWMA to address "improper and inadequate solid waste practices [that] create public health hazards, environmental pollution, and economic loss, and cause irreparable harm to the public health, safety and welfare." Section 102 of the SWMA, 35 P.S. § 6018.102. Section 105(a) of the SWMA, 35 P.S. § 6018.105(a), authorizes the EQB to promulgate regulations to "accomplish the purposes and to carry out the provisions of the" SWMA. Because requiring centralized impoundments to comply with the Residual Waste Management Regulations protects the environment and the public, the centralized impoundment regulation is consistent with the EQB's grant of authority under the SWMA. Moreover, the Agencies contend that the SWMA regulates, inter alia, the storage of solid waste and that a centralized impoundment, though not mentioned specifically in the law, is simply one of many methods of storing residual waste.

         Turning to Act 13, the Agencies note that one of the stated purposes of the law was to "[p]ermit optimal development of oil and gas resources . . . consistent with protection of the health, safety, environment and property of Pennsylvania citizens." 58 Pa. C.S. § 3202. The Agencies argue that allowing the continued use of centralized impoundments but under heightened standards strikes the balance between optimal development and safety. Accordingly, the Agencies maintain that the centralized impoundment regulation falls within the general grant of authority to promulgate Act 13 regulations: "The [EQB] shall promulgate regulations to implement this chapter." Id. § 3274.

         Focusing only on the Coalition's arguments in opposition addressed to the first Tire Jockey standard, [34] the Coalition contends that the centralized impoundment regulation reflects not a change in law but a change in the Agencies' longstanding interpretation of the law, specifically the SWMA and the Agencies' authority thereunder. The Coalition first directs the Court to the definition of "centralized impoundment" in the Unconventional Well Regulations, where the term is defined by specific reference to a facility previously permitted under the DSEA, as reflected in the Prior Standards.[35] In essence, the Coalition maintains that it had long been the Agencies' position that centralized impoundments were subject to permitting only under the DSEA and not the SWMA or other legislation.

         The Coalition argues that Act 13 does not provide a grant of authority to the Agencies to regulate centralized impoundments. Specifically, it notes that the Act makes no reference to centralized impoundments. The Coalition argues that a legislative statement of purpose alone (58 Pa. C.S. § 3202) should not be read as a grant of power to regulate centralized impoundments. Similarly, it contends that broadly written prohibitions against harming the environment (id. § 3259) do not authorize regulation of centralized impoundments. Finally, in the absence of any mention of impoundments in Act 13's substantive provisions, the Coalition contends that the general authority to promulgate regulations to implement that law (id. § 3274) cannot serve as authority to regulate that which the law does not address.

         As for The Clean Streams Law, the Coalition acknowledges that Section 402 of the Clean Streams Law empowers the Agencies to adopt regulations to address particular activities that create a danger of pollution to the waters of the Commonwealth. The Coalition argues that there is, however, no "specific and express" authority to regulate impoundments in that section. To the extent the Agencies rely on some sort of implied authority to regulate centralized impoundments, the Coalition argues that there is no record evidence to support the Agencies' concern that heightened standards are necessary because existing, permitted centralized impoundments have the potential to leak and cause pollution. The Coalition notes that the Agencies provide but one example of a centralized impoundment failure in support of their claim that these impoundments have a history of failure. Further, the Coalition highlights what it contends were "stringent" regulations under which the existing centralized impoundments were constructed prior to the Unconventional Well Regulations.

         Finally, the Coalition argues that the SWMA provides permitting only for processing and disposal of residual waste. Specifically, Section 301 of the SWMA, 35 P.S. § 6018.301, provides:

No person or municipality shall store, transport, process, or dispose of residual waste within this Commonwealth unless such storage, or transportation, is consistent with or such processing or disposal is authorized by the rules and regulations of the [D]epartment and no person or municipality shall own or operate a residual waste processing or disposal facility unless such person or municipality has first obtained a permit for such facility from the [D]epartment.

(Emphasis added.) Centralized impoundments, the Coalition contends, are storage facilities. Accordingly, while the Agencies could develop standards relating to the storage of residual waste under the SWMA, the Coalition contends that the authority to require a permit does not extend to storage facilities.

         The parties agree, and the Unconventional Well Regulations provide, that centralized impoundments are existing facilities that possess a Permit for a Centralized Dam for Oil and Gas Operations (DEP # 8000-PM-OOGM0084). 25 Pa. Code § 78a.1. The Prior Standards provided that centralized impoundments are "utilized by natural gas production operations to store wastewaters associated with natural gas operations (e.g., flowback, mine influenced water, wastewater treatment plant effluent)." (Agencies' Br. in Supp., Ex. E at 1 (emphasis added).) These centralized impoundments, then, are previously permitted residual waste storage facilities. Based on our reading of the Coalition's claim in the Petition and the parties' arguments with respect to the first Tire Jockey prong, the central question appears to be whether the Agencies have the statutory grant of authority to require operators either to close or re-permit their centralized impoundments under the Residual Waste Management Regulations.

         We acknowledge the Agencies' claim that the Residual Waste Management Regulations, like the Unconventional Well Regulations, were promulgated under authority conferred by a string cite of laws, including, inter alia, the SWMA and The Clean Streams Law. The regulations span several chapters. The general permit provisions largely track the SWMA permitting requirements. As noted above, while the SWMA generally regulates the storage, transportation, processing, and disposal of residual waste, the law imposes a permitting requirement on only residual waste processing or disposal facilities. It does not require a permit to store residual waste.[36] Consistent with the SWMA, the word "permit" in the Residual Waste Management Regulations refers to "[a] permit issued by the Department to operate a residual waste disposal or processing facility or to beneficially use residual waste." 25 Pa. Code § 287.1 (definitions). Accordingly, like the SWMA, the general requirement for a permit under the Residual Waste Management Regulations is limited to those that operate a residual waste disposal or processing facility. Id. § 287.101(a).

         The storage of residual waste, by surface impoundment or otherwise, is addressed separately in Chapter 299 of the Residual Waste Management Regulations. With respect to impoundments specifically, [37] those that seek to store residual waste in a surface impoundment must hold a valid permit under The Clean Streams Law, not the SWMA, and must comply with the DSEA Regulations. Id. § 299.142. A regulation that requires operators of surface impoundments that store residual waste to obtain a permit under The Clean Streams Law falls within the grant of authority from the General Assembly to the Department under Section 402(a) of The Clean Streams Law, which provides clear and express authority to the Department to impose permitting and related requirements on activities that, in the Department's assessment, create a "danger of pollution of the waters of the Commonwealth," or for which "regulation of the activity is necessary to avoid such pollution."[38] Section 78a.58c of the Unconventional Well Regulations appears to fall within this grant of authority.

         For this reason, we will grant the Agencies' application for summary relief with respect to the Coalition's claim that the Agencies lack the statutory authority to promulgate Section 78a.59c of the Unconventional Well Regulations. While the Agencies may lack statutory authority to require operators of centralized impoundments to obtain a permit for storage of residual waste under the SWMA, the Agencies are authorized to require permitting for storage under The Clean Streams Law and Chapter 299 of the Residual Waste Management Regulations.

         D. Site Restoration (Count V)-Cross-Applications

         The site restoration regulation, Section 78a.65');">78a.65 of the Unconventional Well Regulations, 25 Pa. Code § 78a.65');">78a.65, imposes standards and requirements relating to the restoration of well sites.[39] In paragraph 71 of its Petition, the Coalition challenges the regulation under the first Tire Jockey standard, claiming that the Agencies have exceeded their authority by imposing requirements beyond those set forth in Act 13. The Coalition lodges two challenges under the second Tire Jockey standard. First, the Coalition claims that the final regulation violates what is commonly referred to as the Commonwealth Documents Law by enlarging the original purpose of the proposed regulation published for public comment. (Petition ¶ 71(a).) Second, the Coalition claims that the Agencies failed to comply with the Regulatory Review Act, in that they provided no estimate for the cost of compliance in the RAF. (Id. ¶ 71(e).) In addition, the Coalition alleges that the regulation is improper because it conflicts with the Department's E&S/PCSM Regulations, specifically 25 Pa. Code § 102.8(n). (Id. ¶ 71(b).) The Coalition also claims that the regulation is void for vagueness. (Id. ¶ 71(a).) Finally, the Coalition claims that the regulation is unreasonable under the third Tire Jockey standard. (Id. ¶ 71(d).)

         The Agencies seek summary relief with respect to the Coalition's challenges under the first (lack of authority) and second (proper procedures) Tire Jockey standards. The Coalition seeks summary relief with respect to its first Tire Jockey claim, focusing on subsections (a), (b), and (d) of the site restoration regulation. The Coalition also seeks summary relief with respect to its claim that the EQB failed to comply with the Commonwealth Documents Law in promulgating subsection (b) of the challenged regulation. The Coalition further seeks summary relief with respect to its vagueness challenge, focusing on subsection (b) of the challenged regulation. The Coalition further seeks summary relief with respect to the entirety of Section 78a.65');">78a.65 of the Unconventional Well Regulations, claiming that the entire section should be stricken for failure of the Agencies to comply with the Regulatory Review Act. Finally, the Coalition seeks summary relief with respect to its claim that the entirety of the regulation is unreasonable under the third Tire Jockey standard.

         1. Authority-Subsections (a) and (b)

         Section 78a.65');">78a.65(a) of the Unconventional Well Regulations establishes three distinct site restoration requirements for land surface areas disturbed during well site construction based on the status of the well site: (1) post-drilling; (2) post-plugging; and (3) sites constructed but not drilled. 25 Pa. Code § 78a.65');">78a.65(a). Section 78a.65');">78a.65(b) of the Unconventional Well Regulations generally requires all well site operators to develop and implement a site restoration plan. Id. § 78a.65');">78a.65(b).

         More specifically, within 9 months of completing drilling operations, the site restoration regulation requires operators to "remove all drilling supplies, equipment, primary containment and secondary containment not necessary for production or needed to safely operate the well." Id. § 78a.65');">78a.65(a)(1) (emphasis added). The regulation further provides:

(iv) The areas necessary to safely operate the well include the following:
(A) Areas used for service vehicle and rig access.
(B) Areas used for storage tanks and secondary containment.
(C) Areas used for wellheads and appurtenant oil and gas processing facilities.
(D) Areas used for any necessary safety buffer limited to the area surrounding equipment that is physically cordoned off ...

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