Pennsylvania Department of Environmental Protection proposes changes to oil and gas enforcement policies

On October 4, 2014, the Pennsylvania Department of Environmental Protection (“PADEP”) published notice of a draft policy titled "Standards and Guidelines for Identifying, Tracking, and Resolving Oil and Gas Violations" (the “Proposed Policy”).  The Proposed Policy contains new processes and revises existing guidelines and will have an impact on how operators interact with the PADEP.

The Proposed Policy introduces a new, detailed process for how the PADEP will handle water supply contamination complaints.  The Proposed Policy contemplates that an onsite investigation will be conducted within 4 business days of receiving the complaint, and a final determination made within 45 calendar days, unless there are extenuating circumstances.  The PADEP may order the operator to provide temporary water supplies to the complainant either before or after the final determination on contamination is made, depending on whether the water supply is located within the “rebuttable presumption area” (1,000 feet for a conventional well and 2,500 feet for an unconventional well).  If a final positive determination of contamination is made, the PADEP shall issue a notice of violation (“NOV”) to the operator and, after allowing an opportunity for the operator to respond, shall issue an administrative order to replace or restore the affected water supply unless (1) the water supply has already been replaced or restored, (2) the investigation request has been withdrawn, (3) the operator and water supply owner have reached an agreement, or (4) the water supply is no longer contaminated or diminished.

The Proposed Policy also addresses existing guidelines and policies.  One of these changes provides for more aggressive issuance of NOVs, which will now be issued for all violations noticed during an inspection, unless the violation is corrected by the end of the inspection visit.  Currently, an NOV will issue only if the violation is not corrected within 14 days of the inspection visit.  Other topics addressed by the Proposed Policy include a revised well inspection schedule, the process for on-site inspections, the issuance of administrative orders, permit suspension and revocation, the imposition of civil penalties, and a 180-day negotiation deadline for certain enforcement documents.

The PADEP is accepting public comments on the Proposed Policy until November 2, 2014. View the Proposed Policy.

This post was written by Barclay Nicholson ( or 713 651 3662) and Michael Gaetani ( or 724 416 0400) from Norton Rose Fulbright's Energy Practice Group.