General Industry Comments on the Proposed General Water Pollution Control Permit for Stormwater Associated with Oil and Gas Related Construction Activities

In March 2012, the West Virginia Department of Environmental Protection (“DEP”) proposed a permit for controlling stormwater runoff associated with oil and gas related construction activities (“the proposed permit”).  The comment period ended April 30, 2012 and Jackson Kelly submitted comments on the proposed permit.  DEP indicates that the proposed permit is authorized under West Virginia state regulations (West Virginia Water Pollution Control Act, Chapter 22, Article 11) and is separate and in addition to the existing NPDES permitting system already in place under the Clean Water Act.  This blog supplements a prior blog article written on the proposed permit, available at:  http://oilandgas.jacksonkelly.com/2012/03/wv-dep-general-permit-for-oil-and-gas-activities.html.  

The proposed permit was offered by DEP in response to gaps in the existing NPDES program.  The DEP, in the related Fact Sheet for the proposed permit (available at:  http://www.dep.wv.gov/WWE/Programs/stormwater/Documents/Oil%20and%20Gas%20Stormwater%20GP%20Fact%20Sheet.pdf), indicated that oil and gas activities have historically been exempted from existing NPDES regulations.  Additionally, West Virginia regulates certain oil and gas related activities but “several oil and gas related construction activities remain unregulated, notably pipelines, access roads, and construction of most transmission and processing facilities.” The proposed permit is structured almost identically to the existing NPDES general permit for stormwater associated with construction activities and is planned to cover those oil and gas construction activities not currently regulated.  

West Virginia is not the first state to enact a proposed permit which fills the gaps left by federal NPDES permitting for stormwater construction activities related to oil and gas construction activities.  Pennsylvania has a comprehensive stormwater management policy which authorizes permits for activities not regulated pursuant to NPDES regulations.  Ohio does not have a separate permit but requires oil and gas operators to implement Best Management Practices (BMPs) pertaining to stormwater runoff during construction activities as part of the overall drilling permit.     

Generally, the proposed permit will require that permittees develop and submit beforehand a Stormwater Pollution Prevention Plan (“SWPPP”) as well as a Groundwater Protection Plan (“GPP”).  Notification to the DEP will be required prior to beginning construction and will vary depending on the size of area impacted, quality of water to be discharged into and length of time the area will be disturbed during construction.  In certain instances, a public notice period will be required.  The proposed permit includes a civil penalty section, imposing up to $25,000/day should violations of the permit occur.  

Commentary focuses on the fact that the language regarding applicability is vague and recommends clarification as to what activities, specifically, are applicable.  We note that there is potential for overlap and duplication with other similar permits, including the existing NPDES permitting system as well as the requirement for SWPPP through the drilling permit issued by the DEP Office of Oil and Gas, which will cause notable administrative burdens on permittees. Other comments included:  specific language rewrite to clarify permit conditions; removal of reference to fugitive air emissions, refinement and streamlining of notification requirements, specific language rewrite to clarify conditions for site stabilization after construction activities, and  rewriting the terms of the permit so it does not conflict with existing state or federal stormwater pollution control laws. 

This article was authored by Carolyn McLain, Jackson Kelly PLLC. For more information on the author see here.