On February 23, 2017, the Pennsylvania Department of Environmental Protection (PADEP) announced an extension of the public comment period regarding recently proposed draft general air permits for the oil and natural gas industry. Comments are now due by June 5, 2017. PADEP has proposed to issue a new general permit known as GP-5A for unconventional natural gas well site operations and remote pigging stations, as well as revise the existing general permit known as GP-5 for natural gas compression and/or processing facilities. PADEP’s proposal would also revise the Air Quality Permit Exemptions list. Refer to our Administrative Watch for more information. A formal notice regarding the comment deadline extension was also published in the Pennsylvania Bulletin dated February 25, 2017.
On May 2, 2016, the U.S. Army Corps of Engineers (“USACOE”) released the final Pennsylvania State Programmatic General Permit-5 (“PASPGP-5”). USACOE administers this permit program jointly with the Pennsylvania Department of Environmental Protection (“DEP”) to authorize the placement of dredged or fill material into regulated waters. USACOE has issued PASPGP-5 for a five-year period. The permit will go into effect on July 1, 2016.
PASPGP-5 replaces the previously issued PASPGP-4 and contains significant modifications from PASPGP-4. Perhaps most notably, PASPGP-5 replaces the Category I through III system of agency review in favor of a “Reporting” versus “Non-Reporting” system. In general, Category I and II activities under PASPGP-4 are called “Non-Reporting Activities” under PASPGP-5, and Category III Activities are now called “Reporting Activities.” PASPGP-5 also includes terms that address the “grandfathered” status of certain activities that were previously authorized under PASPGP-4. In some cases, such projects must be submitted to USACOE to determine if the project qualifies for coverage under PASPGP-5.
On April 7, 2016, the Ohio Environmental Protection Agency (OEPA) announced a public comment period for a package of draft general permits for oil and natural gas midstream compressor stations. Applicants seeking coverage under a general permit would be required to demonstrate that the facility meets the general permit eligibility criteria. A general permit establishes pre-defined permit terms, including requirements relating to equipment installation, operating standards, monitoring, recordkeeping, and reporting. OEPA stated that the new general permits would authorize emissions from a wide variety of sources, including: natural gas-fired compressor engines; diesel engines; dehydrators; flares; compressors; equipment (pipes, pumps, etc.); liquid storage tanks; truck loading operations; and pigging operations. Comments are due May 18, 2016.
On September 29, 2015, the U.S. Army Corps of Engineers (USACE) issued a public notice regarding revisions to the Pennsylvania State Programmatic General Permit – 4 (PASPGP-4). In general, PASPGP-4 authorizes the discharge of dredged or fill materials and the placement of temporary or permanent structures that result in impacts to one acre or less of waters of the United States, including jurisdictional wetlands. The revisions announced by USACE are intended to “streamline the PASPGP-4 review process by adding Avoidance Measures (AMs) identified on a Pennsylvania Natural Diversity Inventory (PNDI) receipt for Federally listed threatened or endangered species as a Special Condition of the PASPGP-4 without the need for a [USACE] review of the application.” The revisions allow certain PASPGP-4 applications to proceed under Category I or Category II review. The changes are effective immediately.
Also on September 29, USACE released a separate public notice requesting comments on its plan to issue, for a five-year period, PASPGP-5. PASPGP-5 would replace PASPGP-4, which is set to expire on June 30, 2016. Comments regarding the proposed new version of the general permit are due on October 29, 2015.
Earlier this week, the U.S. District Court for the Middle District of Pennsylvania granted a motion for summary judgment in favor of a natural gas operator in a closely-watched case involving air aggregation issues. In 2011, Citizens for Pennsylvania’s Future (PennFuture) filed suit alleging that Ultra Resources, Inc. (Ultra) constructed a major source of nitrogen oxides (NOx) without the appropriate New Source Review (NSR) permit. The case involved eight compressor stations in Tioga and Potter counties for which Ultra had obtained separate authorizations from the Pennsylvania Department of Environmental Protection (DEP) to use the General Plan Approval/General Operating Permit known as “GP-5”. PennFuture viewed the compressor stations as functionally interrelated, operating in concert with a metering station as a single facility with potential NOx emissions in excess of the NSR major source threshold, thereby subjecting Ultra to heightened permitting requirements.
In granting Ultra’s motion for summary judgment, the District Court concluded that Ultra’s compressor stations did not constitute a single facility. The regulatory definition of a single facility requires, in relevant part, that sources be “located on one or more contiguous or adjacent properties” in order to be aggregated into a single facility. The central issue in this case was whether Ultra’s compressor stations are on “adjacent” properties.
The District Court found that Ultra’s compressor stations are not on “adjacent” properties under either the distance-based, plain meaning approach advocated by Ultra, or the functional relationship theory put forth by PennFuture. According to the District Court, the stipulated facts showed that the compressor stations are not “sufficiently close to, or near enough, each other to be considered adjacent.” Also, with respect to functional relationship, the District Court found no unique facts suggesting that Ultra’s emission sources were “unusual or outside of the normal oil and gas configurations and arrangements contemplated by [DEP].”
Although the District Court concluded that “the plain meaning of ‘contiguous’ and ‘adjacent’ should control a determination of whether two or more facilities should be aggregated,” it specifically “decline[d] to hold that functional interrelatedness can never lead to, or contribute to, a finding of contiguousness or adjacency.” Read our Administrative Watch for additional information regarding the District Court decision in Citizens for Pennsylvania’s Future v. Ultra Resources, Inc.
The Pennsylvania Department of Environmental Protection (DEP) has finalized revisions to the General Plan Approval and/or General Operating Permit (BAQ-GPA/GP-5 or General Permit) for Natural Gas Compression and/or Processing Facilities (known as “GP-5”). Revisions to GP-5 include removal of the 100,000 ton per year greenhouse gas applicability threshold and addition of an annual compliance certification requirement. Changes to the permit were proposed in November 2014. DEP received public input from ten commenters.
On Saturday, November 15th, the Pennsylvania Department of Environmental Protection (DEP) published proposed changes to its General Plan Approval and/or General Operating Permit (BAQ-GPA/GP-5 or General Permit) for Natural Gas Compression and/or Processing Facilities (known as “GP-5”) issued in February 2013. Operators may apply for coverage under GP-5 to authorize the construction, modification, and/or operation of a natural gas compression and/or a gas processing facility.
Among other proposed changes, DEP has deleted the applicability threshold requirement for greenhouse gases in response to the United States Supreme Court’s Utility Air Regulatory Group (UARG) v. Environmental Protection Agency (EPA) decision issued on June 23, 2014. DEP also added a requirement to submit an annual compliance certification for GP-5; the annual certification would be due to DEP by March 1 each year. Public comments on the proposed revisions to GP-5 will be accepted by DEP until January 6, 2015.
The West Virginia Department of Environmental Protection, Division of Air Quality (DAQ) recently extended the public comment period for the draft Class II General Permit G70-A for the Prevention and Control of Air Pollution in regard to the Construction, Modification, Relocation, Administrative Update and Operation of Natural Gas Production Facilities Located at the Well Site. All written comments or requests for a public meeting must now be received by the DAQ before 5:00pm on May 17, 2013. (The original deadline was April 29, 2013, as discussed in a prior blog post.)