District Court Stays EPA's Emergency SDWA Order
One of EPA’s strategies for addressing potential environmental effects of fracking is to issue emergency orders under the Safe Drinking Water Act, 42 U.S.C. §300i(a), in situations that may present an imminent and substantial endangerment to health. Such orders have been issued against drilling operations in Texas and Pennsylvania where neighboring well owners have claimed that their drinking water wells have been contaminated. The emergency orders typically direct the oil and gas operators to stop the contamination and impose environmental monitoring and reporting obligations.
One of the issues raised and decided in U.S. v. Range Production Co., Case No. 3:11-cv-00116 (N.D. Tex.), was whether the emergency order was final agency action subject to judicial review. The court ruled that it was and denied Range’s motion to dismiss for lack of jurisdiction. Another issue raised but not yet decided is whether, after issuing the emergency order, EPA must then prove that the defendant’s drilling operations actually caused the contamination in order to enforce the order and obtain civil penalties. Before reaching that issue, the district court judge sua sponte stayed the case pending resolution of a related Fifth Circuit action, Range Resources Corp. et al. v. EPA, Case No. 11-60040. Range Resources Corp. seeks to nullify the emergency order on the grounds that the SDWA provision under which the order was issued violates Range Resources’ constitutional due process rights.
