Sometimes EPA enforcement actions are the “cart” following up to ensure compliance with duly promulgated compliance requirements.  But sometimes, enforcement activities can be the “horse,” incorporating as injunctive relief in settlements provisions that are anticipatory of future regulatory requirements.  The decade-long enforcement initiative against domestic refineries is an example of the later approach (see recent settlement re Marathon).  Now EPA appears to be taking a similar tact with regard to unconventional gas development projects.

On May 16, the Department of Justice lodged a proposed Consent Decree between EPA and QEP Field Services that includes a provision requiring the company to aggregate oil and gas operations to determine the applicability of PSD requirements to field operations.  Application of the policy on aggregation has been a controversial issue for years, and has yet to be settled through regulation. 

EPA’s recent New Source Performance Standards for fracking operations incorporate a requirement for Reduced Emission Completions (“REC”), that EPA has been enforcing in settlements for years (e.g., 2007 settlement with Kerr McGee).

Other recent examples include compliance orders for dredge and fill permits under section 404 in West Virginia and information requests under Clean Water Action Section 308 for information relating to the volume and management practices for produced water from fracking operations in Pennsylvania (see earlier blog post).

When the cart gets ahead of the horse, no one really knows where it will end up.  One thing we know for sure, however.   More regulation of unconventional gas development is headed our way.