Morrisey and Huffman Respond To EPA SIP Call for Changes to Startup and Shutdown Events

            EPA has proposed significant  changes to the manner in which states manage their air pollution control programs.  Many states allow air emission sources to exceed air pollution permit limits during brief periods of equipment startup, shutdown and malfunction when there may be, for example, incomplete fuel combustion. As a result of a lawsuit by the Sierra Club, EPA now wants to require states to amend their State Implementation Plans (SIPs) to treat emissions exceedances during startups and shutdowns as violations.  (Exceedances may be allowed because of malfunctions, but only as a matter of enforcement discretion.)  EPA's fact sheet can be found here.

            The SIP Call identifies eight West Virginia regulations that would have to be revised to eliminate exemptions for startup and shutdown events.  On May 13, 2013 Randy Huffman, Director of the Department of Environmental Protection and Patrick Morrisey, Attorney General responded to EPA, objecting to EPA’s proposed rejection of the state regulations.  One of the principal contentions of EPA is that §302(k) of the Clean Air Act defines emission limitation as “a requirement established by the State with the Administrator which limits the quantity, rate, or concentration of air pollutants on a continuous basis. . .”   However, as Huffman and Morrisey pointed out, in the past EPA has not interpreted the word “continuous” to preclude higher emissions during SSM events.  They also noted: that EPA lacks the authority to issue a SIP Call because it had not made the necessary findings that changes in state regulations are needed; that the rule fails to comply with the federal Administrative Procedure Act; and that EPA had misconstrued West Virginia’s SSM emissions and greatly overstated the amount of discretion given the state to allow higher emissions during the SSM events.

            Several other states have joined West Virginia in opposing EPA’s rulemaking.  EPA will review the comments and then determine whether to proceed with the proposed rule.

            State Implementation Plans: Response toPetition for Rulemaking; Findings of Substantial Inadequacies; and SIP Calls toAmend Provisions Applying Access Emissions During Periods of Startup, Shutdown,and Malfunction.  78 Fed. Reg. 12460(Feb. 22, 2013) Air Docket No. EPA-HQ-OAR-2012-0322.

West Virginia Issues Oil and Gas Storm Water Permit

            On May 13, 2013 the West Virginia Department of Environmental Protection’s Division of Water and Waste Management issued its General Water Pollution Control Permit for Stormwater Associated with Oil and Gas-related Construction Activities.  This permit will be required for storm water discharges from earth-disturbing activities of more than an acre that are associated with oil and gas production and transportation  and  that are not covered under an Office of Oil and Gas well work permit. The permit has an effective date of June 12, 2013 and an expiration date of May 13, 2018.

The new permit is very similar to the  NPDES general permit for storm water from construction activities that is already in effect.  However, a separate state-only permit had to be issued for oil and gas activities because storm water runoff from oil and gas activities is generally exempt from state/federal NPDES permitting. Section 402(l)(2) of the Clean Water Act exempts oil and gas operations from storm water permitting, and §502 of the Act broadly defines those operations:

The term “oil and gas exploration, production, processing or treatment operations or transmission facilities” means all field activities or operations associated with exploration, production, processing or treatment operations, or transmission facilities, including activities necessary to prepare a site for drilling and for the movement and placement of drilling equipment, whether or not such field activities or operations may be considered to be construction activities.

33 U.S.C. §1362(24).  More information about the scope of this exemption can be found at EPA’s website and in Natural Resources Defense Council v. EPA, 526 F.3d 593 (9th Cir. 2008).

The result of the exemption is a patchwork of regulation.  Generally speaking, the Office of Oil and Gas requires sediment and erosion control measures for roads, pads, pits and other earth disturbance that are associated with drilling.  These best management practices are placed in drilling permits, but they are state-only conditions, and are not enforceable under the state/federal NPDES program.  The new permit is intended for earth disturbance associated with gas line laying and other oil and gas activities that are not regulated in a drilling permit.  Runoff from all other earth disturbance is covered under Division of Water and Waste Management’s general NPDES permit for storm water discharged from construction operations.

The permit, fact sheet and responsiveness summary for the new oil and gas storm water permit  can be found here. 

            For more information, contact Dave Yaussy at dly@ramlaw.com