Division of Surface Water Response to Comments

Transcription

1 Division of Surface Water Rule Package: Storm Water and General National Pollutant Discharge Elimination System (NPDES) Rules, OAC Rule and OAC Chapter Agency Contact for this Package Division Contact: Jason Fyffe Division of Surface Water Rule Number Title Requirements for general national pollutant discharge elimination system (NPDES) permits Applicability of rules of procedure and definitions Objectives of the Ohio EPA storm water management program for small MS4s Ohio EPA NPDES requirements for small MS4s Ohio EPA NPDES requirements for industries, including construction activities, and large and medium MS4s. Ohio EPA held an interested party comment period from July 12, 2018 to August 13, 2018 regarding four Storm Water Program rules, and one General NPDES Permit Program rule. This document summarizes the comments and questions received during the associated comment period. Ohio EPA reviewed and considered all comments received during the public comment period. By law, Ohio EPA has authority to consider specific issues related to protection of the environment and public health. In an effort to help you review this document, the questions are grouped by topic and organized in a consistent format. The name of the commenter follows the comment in parentheses. General Comments: Comment 1: NPDES permit-oriented rules generally do not impact OOGA member operations, as the federal Clean Water Act exempts oil and gas operators from

2 November 2018 Page 2 of 5 the requirement to obtain a NPDES storm water permit. See 33 U.S.C. 1342(1)(2)). Ohio EPA has historically observed. However, in light of Ohio EPA's proposal for a "Non-NPDES General Permit for Storm Water Discharges Associated with Construction Activity from Oil and Gas Linear Transmission Line and Gathering Line Installation" 1 combined with the recent amendment to OAC (C) which appears to eliminate the federal exemption, 2 OOGA has taken a keen interest in NPDES-oriented rulemakings to protect its members' interests. OOGA objects to any rulemaking or policy change that directly or indirectly reduces the scope of or eliminates the federal NPDES permit exemption. (Ohio Oil and Gas Association, OOGA) Response 1: These rules retain the qualified storm water exemption for oil/gas related work. The exemption applies so long as discharges from a facility do not violate water quality exemptions. The recent changes to OAC do not affect this at all : Comment 2: (F) OAC (F): Insert "NPDES" immediately preceding "general permit" to be consistent with the rest of the rule where "permit" is always qualified with ''NPDES." (OOGA) Response 2: The Agency does not anticipate making this change, as this language was taken directly from 40 C.F.R (b)(2)(v), which the division is attempting to mirror. These rules are specific to NPDES general permits, so the Agency does not believe this is a necessary change. Comment 3: (F)(7) To more closely track the federal rule, revise this provision to read "(7) Reasons why the notice of intent requirements of paragraph (E) of this rule would be inappropriate." The Association also suggests that language be added expressly limiting this provision to NPDES alternative general permits and does not provide authority to issue non-npdes general permits. (OOGA) Response 3: As previously stated, these rules are specific to NPDES general permits. These rules are based on the Agency s NPDES permitting authority, and therefore do not apply to non-npdes permits. Along those lines, the Agency will delete (F)(7) altogether as it is not in the federal regulation and add in the last sentence in the federal regulation which states, The Director shall provide in the public notice of the general permit the reasons for not requiring a notice of intent. Comment 4: (F) Both the Fact Sheet and CSI Business Impact Analysis accompanying this rulemaking state that these rules are being updated to mirror the corresponding 1 The Association has submitted comments on Ohio EPA' s proposed General Permit. 2 The Association has appealed this rulemaking to the Ohio Environmental Review Appeals Commission (ERAC Case No ).

3 November 2018 Page 3 of 5 federal regulations. Similarly, (A)(1) states that this chapter shall be administered consistent with the regulations at 40 CFR 122. As such, to ensure that (F) is consistent with the corresponding federal regulation at 40 CFR (b)(2)(v) and for improved clarity with regard to the potential for excluding the notice of intent in certain situations, (F) should be modified as follows: "(F) The director may develop a general permit that contains alternative means for persons to obtain coverage under a general permit without submitting a notice of intent under paragraph (E) of this rule where the director finds that a notice of intent requirement would be inappropriate, in accordance with 40 C.F.R (b)(2)(v), after considering the following: (1) The type of discharge (2) The expected nature of the discharge (3) The potential for toxic and conventional pollutants in the discharges (4) The expected volume of the discharges (5) Other means of identifying discharges covered by the permit (6) The estimated number of discharges to be covered by the permit (7) Notwithstanding the notice of intent requirements of paragraph (E) of this rule This provision does not apply to publicly owned treatment works, combined sewer overflows, municipal separate storm sewer systems, primary industrial facilities and storm water discharges associated with industrial activity." (American Petroleum Institute Ohio, API Ohio) Response 4: The Agency agrees to make this change : Comment 5: (A)(2) The Association requests that Ohio EPA maintain use of the phrasing "shall" rather than "may" in the first sentence of this rule. Maintaining the "shall not" language in the rule is consistent with the language used in the federal CWA exemption for oil and gas activities, and Ohio EPA has not provided any explanation of the intended purpose for this change. To the extent Ohio EPA intends to change "shall" to "may" for the purpose of reducing the scope and applicability of the CW A federal exemption for oil and gas activities, OOGA urges Ohio EPA not to make those changes for the reasons highlighted above in this letter. (OOGA) Response 5: The Agency does not intend to make this change, as this change is taken directly from the corresponding federal regulation that is being mirrored 40 C.F.R (a)(2). Comment 6: (A)(2)(b) Both the Fact Sheet and CSI Business Impact Analysis accompanying this rulemaking state that these rules are being updated to mirror the corresponding

4 November 2018 Page 4 of 5 federal regulations. The Fact sheet also states that rules in "are equivalent to the federal regulations" and that "mirrors the federal regulation in 40 CFR " Similarly, the CSI Business Impact Analysis also includes statements that "OAC was "developed to incorporate federal requirements into the state administrative code" and that "as a delegated state, Ohio EPA is required to implement the storm water NPDES permit program in accordance with federal regulations." Despite the statements above regarding consistency with the federal requirements, the current language in (A)(2)(b) regarding the exemption for storm water discharges from Oil & Gas activities omits the second sentence of the corresponding federal regulation at 40 CFR (a)(2)(ii) which provides important language related to discharges of sediment from Oil & Gas construction activities. To ensure consistency with the federal regulation, the second sentence of 40 CFR (a)(2)(ii) should be included in (A)(2)(b), as follows: "(b) All field activities or operations associated with oil and gas 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, except in accordance with paragraph (C)(1)(c) of this rule. Discharges of sediment from construction activities associated with oil and gas exploration, production, processing, or treatment operations or transmission facilities are not subject to the provisions of paragraph (C)(1)(c)(iii) of this rule. " (API Ohio) Response 6: The Agency will not include this sentence in the rule. Based on the Ninth Circuit Court of Appeal s decision, NRDC v. U.S. EPA, Case No (2008) regarding U.S. EPA s decision on the NPDES storm water exemption for the oil and gas industry made pursuant to statutory changes in the Energy Policy Act of 2005, this sentence has been vacated from the rule and remanded to U.S. EPA for further rulemaking. Below is an excerpt from U.S. EPA s website: On June 12, 2006, EPA published a final rule to address the new provision added by the Energy Policy Act of This regulation specifically exempted from NPDES permit requirements stormwater discharges containing sediment (the pollutant most commonly associated with construction; a consequence of the Office of Management and Budget s inter-agency review) from construction activities associated with oil and gas exploration, production, processing, or treatment operations or transmission facilities unless the relevant facility had a discharge of stormwater resulting in a discharge of a reportable quantity of oil or hazardous substances or caused/contributed to a water quality standards exceedance. Shortly thereafter, the Natural Resources Defense Council (NRDC) petitioned the Ninth Circuit Court of Appeals for review of EPA's action. On May 23, 2008, the Ninth Circuit issued an opinion in Natural Resources Defense

5 November 2018 Page 5 of 5 Council v. United States Environmental Protection Agency, 526 F.3d 591 (9th Cir. 2008), vacating and remanding EPA's 2006 oil and gas construction stormwater regulation. Since EPA s 2006 Oil and Gas Stormwater Rule was vacated, the regulations in place prior to 2006 have been in effect. As a result, the regulations and statutory language currently in effect are: 40 CFR (a)(2) 40 CFR (c)(1)(iii) Revised (e)(8): For any storm water discharge associated with small construction activities identified in paragraph (b)(15)(i) of this section, see (c)(1). Discharges from these sources require permit authorization by March 10, 2003, unless designated for coverage before then. CWA 402(l)(2) CWA End of -