PA DEP Draft Policy – Tracking and Resolving Oil and Gas Violations

The Pennsylvania Department of Environmental Protection (PA DEP) has been circulating a draft policy document (#550-3000-001) meant to provide guidance to department employees in the Oil and Gas Management program.   The stated purpose is to assist staff in “determining what courses of enforcement to pursue to resolve violations and bring about compliance, and to provide advisory information to the regulated industry.”  

The document notes that this policy will apply to both conventional and unconventional operations so all operators need to be aware of what is in this proposal. The Department notes that it is authorized by various laws to take formal enforcement action to assure compliance. The Department’s proposed “Basic Principles of Enforcement are:

  • An appropriate enforcement action is to be taken for each violation
  • The minimum response for any violation is a Notice of Violation
  • To maintain compliance, follow-up action is to be based on progressive enforcement
  • Penalties may be assessed where there is an actual threat to public health, safety or environmental damage and for repeat occurrences.

The proposal details the enforcement process as being corrective actions and penalties but notes that there is no precise formula for enforcement action. Seriousness, culpability, cooperation and history all have to be factored into any determination.

Relative to specific actions, the draft provides details on various action steps including Notices of Violations, Administrative Conferences, Administrative Orders, Consent Assessments, Suspension or Revocation of Permit, Civil Penalties, Community Environmental Projects, Bond Forfeitures and Equity Actions like Injunctions or Liens.

There are several pages of discussion on “Identifying a Violation” that covers the thirteen different types of inspections, the twelve different times when inspections should be performed and the steps an inspector should take to prepare for an inspection. This includes all the files and documents that should be reviewed prior to the inspection and the coordination with other departments and agencies. One of the more enlightening sections contains a list of documents, approvals and papers that an operator should have filed or have in his possession (presumably where applicable) that should be checked as part of the inspection process. This list includes 15 different permits or authorizations, 3 types of incident reports, 9 different notifications, 7 different plans and 18 different reports or records.

Finally, the draft contains a four and a half page discussion on how Department personnel should conduct water supply investigations and how water supply issues should be resolved.

This draft makes for some interesting reading and is worth reviewing if for no other reason than to understand how the DEP evaluates and plans to respond to incidences and violations. This draft is actually a revision to an existing policy that was originally released in 2002 and subsequently revised in 2005. The above discussed changes represent a significant expansion of the existing policy. Interested persons can obtain a copy from the author. This document has been in circulation for several months and will be final on publication in the Pennsylvania Bulletin.

Gary Slagel, who most recently retired as the Senior Advisor of Environmental Affairs for CONSOL Energy, has joined the firm as a Government Affairs Specialist. Mr. Slagel is an engineering graduate from the University of Dayton and spent 35 years with CONSOL and CNX Gas in several capacities including Director of Environmental Regulatory Affairs and later Director of Government Affairs working on both coal and natural gas issues.
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