PA DEP Settles Dispute with Chesapeake Bay Foundation

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In a July 6, 2011 settlement of an action pending before the Pennsylvania Environmental Hearing Board, the Pennsylvania Department of Environmental Resources resolved appeals filed by the Chesapeake Bay Foundation of certain permits issued by the Department.  Among the provisions of the settlement are that:

1.)    DEP will "establish as its objective" completion of non-expedited E&S applications within 60 calendar days of filing unless the applicant qualifies for expedited processing. Expedited processing will not be available for many types of applications.

2.)    Certain E&S permit applications will need to be certified by a licensed professional (e.g. engineer, surveyor, geologist or landscape architect) who is registered in Pennsylvania and must be sealed by the licensed professional.

3.)    The Department will "convene a stakeholders group, including representatives from the Department, the CBF (Chesapeake Bay Foundation) and the industry, to assist in developing  revised checklists and guidelines" for the review of Notices of Intent and E&S permit applications.

4.)    Operators will be required to invite DEP to "preconstruction meetings" at least seven days prior to each meeting.

5.)    DEP will propose to adopt (after a sixty day public comment period) a restrictive interpretation of Section 205(b) of the Oil and Gas Act that will prohibit the construction of certain well sites and the drilling of certain wells. 

Read the entire proposed "settlement."
 
The settlement presents new challenges to the industry and several legal questions. The settlement appears to address issues which are beyond the subject matter of the initial appeal before the Board and further appears to mandate changes to the permitting process without rule-making. Beyond the more restrictive permitting process contained in the settlement described above, the proposed settlement seemingly mandates the promulgation of new rules and regulations to address CBF concerns and further mandates the substantive outcome of that rule-making process.

It will be important that industry be involved fully in the implementation of any final settlement and of any rule-making process.

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