An attorney writing on the JD Supra legal website says it’s not just the imagination of oil and gas drillers in the Marcellus Shale region—the federal Environmental Protection Agency (EPA) really is out to get them. He proceeds to use statistics to show the rapid escalation in citations coming from the EPA since 2010.
A simple Google search of “EPA III Enforcement” and a click on the “Natural Gas Extraction/Marcellus Shale” link at the EPA Region III website should cause any company concern. The site lists 27 administrative orders issued for alleged violations of Section 404 of the Clean Water Act (all in West Virginia), 16 Section 308 requests to natural gas drillers and publicly owned treatment works that were accepting “oil and gas wastewater”, 13 additional administrative orders and information requests under § 309 of the CWA to facilities accepting wastewater from Marcellus Shale drilling operations, and extensive effluent sampling data provided by POTWs as a result of EPA’s information requests. Outside EPA Region III, the United States Department of Justice recently announced a major settlement with a midstream natural gas company requiring payment of a $4 million penalty, removal of certain equipment and installation of additional pollution control devices related to alleged violations of the Clean Air Act (“CAA”). EPA’s enforcement initiative is certainly a multifaceted attack by land, water and air.
On the land/water front, EPA Region III has been particularly aggressive against production companies in West Virginia constructing well pads – alleging violations of “discharge of fill material to waters of the United States” without the necessary Section 404 “dredge and fill” permits. As indicated above, EPA Region III issued 27 administrative orders for alleged 404 violations between October 2010 and February 2012. The administrative orders are short on facts and long on requirements to achieve compliance. The substantive allegation in the administrative order is nothing more than an allegation “on information and belief” that the company “operated heavy equipment which discharged dredged and/or fill material to waters of the United States located at the Site.” The activities that resulted in the alleged discharge are included but not limited to “construction of pads for a compressor station, natural gas drilling pads, road improvements associated with the pads, and other associated facilities, including but not limited to all pipelines, tanks, equipment, and other appurtenances.” The “Order For Compliance” generally consists of a “cease and desist [of] all discharges without a permit to waters of the United States,” a preconstruction wetland and stream delineation which shows the extent of the regulated waters prior to construction within 30 days of the Order; and a detailed restoration and mitigation plan to EPA within 30 days. The administrative order clearly states that violation of or failure to comply with the order could result in administrative penalties pursuant to 33 U.S.C. § 1309 (g) resulting in fines up to $37,500 per day, per violation and possible imposition of the criminal sanctions of imprisonment and fines up to $50,000 per day.*
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*JD Supra (Jun 18, 2012) – Enforcement Update: Oil and Gas Operators Beware – EPA is Out to Get You!