Stewards of the Lower Susquehanna, Inc.

Transcription

1 Stewards of the Lower Susquehanna, Inc. RIVERKEEPER VIA ELECTRONIC MAIL Mr. Joseph Adams Department of Environmental Protection Office of Oil and Gas Planning and Program Management P.O. Box 8765 Harrisburg, PA /20/2012 Mr. Adams, Re: Comments on Draft Erosion and Sediment Control General Permit for Earth Disturbance Associated with Oil and Gas Exploration, Production, Processing or Treatment Operations or Transmission Facilities (ESCGP- 2) Noticed in 42 Pa.B. 442 Stewards of the Lower Susquehanna, Inc. (SOLS) and the Lower Susquehanna Riverkeeper submit these comments in response to the pubic notice provided by the Department concerning the Draft Erosion and Sediment Control General Permit for Earth Disturbance Associated with Oil and Gas Exploration, Production, Processing or Treatment Operations or Transmission Facilities (ESCGP- 2). We have submitted these timely comments pursuant to that notice s deadline for submission of 60 days post publishing of March 21, SOLS is a nonprofit environmental protection organization with hundreds of members throughout the Susquehanna Watershed. We are dedicated to improving the ecological integrity of the Lower Susquehanna Watershed and the Chesapeake Bay. In recent years the boom in unconventional shale gas production has created substantial direct, indirect, and cumulative impacts to waterways and communities of the Susquehanna Watershed. These impacts include, among others relevant to the ESCGP- 2, increased sedimentation and discharge of substances to waterways, increased fragmentation of landscapes, and increased construction of infrastructure related to oil and gas development and appurtenant environmental impacts. For these reasons we actively assess and comment upon the Department s efforts managing oil and gas operations in the Commonwealth such as this new permit. SOLS and the Lower Susquehanna Riverkeeper have concluded that the Department s new ESCGP- 2, in its current form, provides inadequate conditions and standards for the effective 1

2 protection of human health and the environment from the detrimental environmental impacts of oil and gas development and related activities. SOLS has identified three particularly deficient areas that should be addressed in the Department s final permit: Inadequate Buffer Requirements, Deficient Application of CWA Standards, and Insufficient Monitoring and Reporting Requirements. I. The Proposed ESCGP- 2 Inappropriately Relaxes Buffer Setbacks Under Ch. 102 Under the proposed permit Section 6 Notice of Intent Submittal (NOI), subsection (l), a permittee is not authorized to conduct well site preparation or drilling within 100 feet measured horizontally from any stream, spring, or body of water as identified on the most current 7 ½ minute topographic quadrangle map of the United States Geologic Survey (USGS) or within 100 feet of any wetlands greater than once acre in size. Subsection (l) goes on to provide an exception to this clause by allowing applicants to request a waiver from the Department in accordance with Section of the Oil and Gas Act. To begin, the Department has not explained why the NOI contemplates a smaller buffer setback for oil and gas development covered by the permit than for any other industrial activity regulated under laws of the Commonwealth. The importance of buffers and wetlands in providing valuable ecological functions is well documented. 1 In fact, a substantial impact of oil and gas development et al covered by the proposed permit is increased sedimentation to waterways from inadequate control of sheet- flow during precipitation events, an impact that adequate riparian buffers are particularly effective at mitigating. For this very reason the United States Army Corps of Engineers recommends buffers on the order of 2x greater than the Pennsylvania s statutorily mandated With the highly probable occurrence of stormwater discharges from oil and gas sites covered by the permit, and the importance of the aforementioned scientific principles in mind, we believe that the proposed permit should at minimum require a baseline of 150 rather than 100. This is in keeping with all other buffer requirements for other industries and would promote proper consistency in regulatory application. Likewise, the proposed permit should require applicants who intend to seek permission to conduct earth disturbances within 150 via the waiver exemption to demonstrate that such activity would utilize best available technology not best practicable technology to ensure that existing buffers are undisturbed and remain effective in their ecological functionality. Allowing a cost- benefit weighing puts discretionary permitting of activities economically benefiting private entities ahead of the ecological well- being of a shared public resource waterways - a policy choice we do not support in principle or practice. Similarly, buffer protection and maintenance should be explicitly required in both post- 1 See David Welsch, Forest Resources Management, USDA Forest Service, Riparian Forest Buffers: Function and 2 Army Corps of Engineers WRAP, Technical and Scientific Considerations for Upland and Riparian Buffers Strips in the Section 404 Permit Process, ERDC- WRAP- 01-6, May 2002, citing DeBano and Schmidt 1990; O Laughlin and Belt

3 construction and pre- construction contexts. A plain reading of Ch. 102 provides the Department appropriate discretion to require such controls and, in circumstances like the instant proposed permit, the Department should exercise that authority to best protect water resources from impairment or degradation. Lastly, the permit should also require that all requests to perform actions covered by the permit in watersheds currently impaired for siltation should universally, and without question, undergo antidegradation review per se, regardless of whether the instant waterway or wetland is a qualifying special protection water. We believe the same precautionary principles should apply, but with more stringent standards, for requested coverage under a waiver for earth disturbances within 150 of an exceptional value or high quality waterway or wetland. The proposed permit should require that any existing riparian buffer or wetland in such a protected waterway or wetland not only undergoes antidegradation review prior to any oil and gas related earth disturbance activities and conforms to any relevant standards, but specifically mandate that a zero discharge standard for sediment is tolerated for watersheds currently impaired for sediment. This stringent standard s purpose is explained more infra in Part II. Mandating a most stringent level of protection, minimum 150 setbacks for buffers and wetlands, and exceptionally rare circumstances in which earth disturbance activities are allowed by waiver for special protection waters is a rational step that the Department should take to ensure it effectively prevents new, or further, impairment or degradation of water quality and designated uses pursuant to the intent of the Clean Water Act. These noted issues are especially important in light of the regulatory strictures of the Clean Water Act imposed on portions of the Susquehanna Watershed within the Commonwealth via the Chesapeake Bay TMDL, as well as the binding rationale of the 9 th Circuit Court of Appeals in NRDC v. EPA, 526 F.3d 591 (9 th Cir. 2008). These requirements are discussed next in Part II. II. The ESCGP- 2 Should Cover Construction Activities Associated with Oil & Gas Operations and Ensure that Any Permit Issued Will Not Cause or Contribute to a Violation of Water Quality Standards a. Construction Activities Related to Oil and Gas Exploration, Production, Processing or Treatment Operations or Transmission Facilities Disturbing Greater than 1 Acre of Earth Should Be Covered By the ESCGP- 2 and Potentially Require NPDES Permitting As Well The 2008 decision of the 9 th Circuit Court of Appeals in NRDC v. EPA stands for the principle that any unpermitted oil and gas facility engaging in construction activities for 1 acre of greater that is discharging contaminated runoff which causes or contributes to a violation of water quality standards is in violation of the Clean Water Act. Such facilities must obtain an NPDES permit pursuant to 40 C.F.R (e)(8). This mandate is controlling on the Department s proposed permit here because EPA s stormwater phase II rules implemented prior to the vacated 2006 rule, as well as a clause from the 2005 Energy Policy Act amendments that expanded the definition of oil and gas operations to include construction activities, apply to the permit s 3

4 intended terms. After the vacature of EPA s impermissible 2006 Final Rule concerning stormwater discharges 40 C.F.R (a)(2) and (e)(8) were again applicable to certain stormwater discharges: 40 C.F.R (a)(2): The Director may not require a permit for discharges of storm water runoff from mining operations or oil and gas exploration, production, processing or treatment operations or transmission facilities, composed entirely of flows which are from conveyances or systems of conveyances (including but not limited to pipes, conduits, ditches, and channels) used for collecting and conveying precipitation runoff and which are not contaminated by contact with or that has not come into contact with, any overburden, raw material, intermediate products, finished product, byproduct or waste products located on the site of such operations. (Emphasis added). 40 C.F.R (e)(8): For any storm water discharge associated with small construction activity identified in paragraph (b)(15)(i) of this section, see (c)(1). Discharges from these sources, other than discharges associated with small construction activity at oil and gas exploration, production, processing, and treatment operations or transmission facilities, require permit authorization by March 10, 2003, unless designated for coverage before then. Discharges associated with small construction activity at such oil and gas sites require permit authorization by June 12, (Emphasis added). Relevant amendments to the Energy Policy Act of 2005 further specified that oil and gas operations include construction activities. See 33 U.S.C. 1362(24). Read together these clauses state that discharges of stormwater from oil and gas construction activities are not susceptible to regulation under an NPDES permit unless runoff from such activities is contaminated by overburden, raw material, intermediate products, finished product, byproduct or waste products located on the site of such operations. See (a)(2). Especially important to the instant proposed permit is the fact that such contamination contemplates sediment- laden runoff. 3 As 40 C.F.R (c)(1)(iii) was not at issue in the NRDC v. EPA litigation it remains in effect. This regulation states that [t]he operator of an existing or new discharge composed entirely of storm water from an oil or gas exploration, production, processing, or treatment operation, or transmission facility is not required to submit a permit application in accordance with paragraph (c)(1)(i) unless the facility... [c]ontributes to a violation of a water quality standard. 40 C.F.R (c)(1)(iii) (emphasis added). The totality of these provisions require delegated states to ensure that oil and gas facilities engaging in any construction activities susceptible to discharging contaminated runoff which will contribute to a violation of water quality standards obtain an NPDES permit. 3 See 55 Fed. Reg. at (Nov. 16, 1990) ( contamination can include disturbed soils ). See also NRDC v. EPA, holding that EPA s 2006 rule was arbitrary and capricious when failing to consider sediment- laden discharges as contaminated. 526 F.3d at

5 In other words, the Department should require each applicant that meets the above criteria to obtain an NPDES permit, not simply perform the proposed NOI certifications. Allowing such a facility or operation to exist without such permitting would be in violation of the Clean Water Act and the Department, as the delegated enforcement authority, would be in dereliction of its duties under the NPDES program. b. The Chesapeake Bay TMDL Applies to Prohibit Any Discharge From An Oil or Gas Operation or Related Activity that May Cause or Contribute to a Violation of Water Quality Standards Within the Susquehanna Watershed Among the many provisions of the CWA, one of the least understood, and least implemented, is the requirement to protect waters that do not meet water quality standards from further pollution the impaired waters provision. 4 The United States Court of Appeals for the Ninth Circuit recently reviewed this part of the CWA and issued a far- reaching decision interpreting the duties of federal and state agencies to prevent further pollution of impaired waters. 5 In Friends of Pinto Creek v. United States E.P.A., the court overturned a water quality discharge permit issued by the federal Environmental Protection Agency (EPA) to a large copper mining project in Arizona. 6 The critical issue in the case was whether a discharge permit could be issued that would add a pollutant to Pinto Creek, a water body that did not meet the applicable water quality standard for that pollutant in that case, dissolved copper. The court vacated and remanded the EPA- issued permit on the ground that such a discharge violated the impaired waters provision of the CWA. 7 Background As the Department is well aware in 2010 EPA Region III implemented its Final Rule limiting the addition of nitrogen, phosphorus, and sediment to the Chesapeake Bay, commonly known as the Bay TMDL. The Bay TMDL categorizes the Susquehanna Watershed as one of 92 segments impaired for the aforementioned pollutants. This impairment designation is in addition to state- based impairment designations that are based upon a state s water quality standards under 40 C.F.R In both the Bay TMDL and state TMDL context when a waterbody fails to meet these benchmarks they are deemed water quality- limited or impaired and placed on the 303(d) list. 8 Total Maximum Daily Loads (TMDLs) are developed and implemented to bring these waterbodies back into compliance with applicable water quality standards. A final TMDL represents a ratcheting down of the pollution sources via their respective 4 33 U.S.C. 1313(d); see also 40 C.F.R (i) (2008). 5 Friends of Pinto Creek v. U.S. E.P.A. (Pinto Creek), 504 F.3d 1007 (9th Cir. 2007), cert. denied, 129 S. Ct. 896 (2009). 6 Id. at Id. at U.S.C. 1313(d) (2006). 5

6 pollutant loading allocations. If TMDLs are properly adhered to, then the result would be restoration of the waterbody to water quality standards. A TMDL reflects an impaired waterbody s capacity to tolerate point source, nonpoint source, and natural background pollution, with a margin of error, while still meeting water quality standards. 9 Two of the leading TMDL decisions have been issued by the United States Courts of Appeal for the Ninth and Eleventh Circuits: Pronsolino v. Nastri, and Sierra Club v. Meiburg. 10 These cases discussed how TMDLs are established, with the goal of reducing both point and non- point source loadings to the level at which stream standards can be achieved. 11 In addition to the federal appellate court opinions in Pronsolino and Meiburg, federal district courts have also recognized the connection between the loading restrictions established in the TMDL and restrictions on new or renewed NPDES permits. In Friends of the Wild Swan, Inc. v. United States E.P.A., the court prohibited EPA and the State of Montana from issuing any new NPDES permits until all necessary TMDLs are established for a particular WQLS [water quality limited stream]. 12 In Sierra Club v. Hankinson, the court ordered that: (b) EPA shall comply with 40 CFR 122.4(i) regarding the prohibition on new sources or new dischargers that will cause or contribute to a violation of water quality standards, requiring new permitees or new dischargers to demonstrate that there are sufficient load allocations to allow for the discharge and requiring that the existing dischargers into that segment are subject to compliance schedules designed to bring the WQLS into compliance with applicable water quality standards. 13 Thus, a state agency is prohibited from issuing an NPDES permit when the conditions of the permit do not provide for compliance with the applicable requirements of CWA, or regulations promulgated under CWA, or when the imposition of conditions cannot ensure compliance with the applicable water quality requirements of all affected states. 14 Indeed, EPA s long- standing regulations prohibit the issuance of an NPDES permit for a new discharge where the discharge may cause or contribute to the violation of water quality standards : Prohibitions. No permit may be issued: (i) To a new source or a new discharger, if the discharge from its construction or operation will cause or contribute to the violation of water quality standards. 15 This is a flat- out prohibition against any new discharge that would cause or contribute to a 9 Pronsolino v. Nastri, 291 F.3d 1123, 1128 (9th Cir. 2002). 10 Pronsolino, 291 F.3d at (holding that TMDLs apply to nonpoint sources); Meiburg, 296 F.3d at (holding that TMDLs are to be established even on streams that have only nonpoint source loadings). 11 Pronsolino, 291 F.3d at ; Meiburg, 296 F.3d at Friends of the Wild Swan, Inc. v. U.S. E.P.A., 130 F. Supp. 2d 1199, 1203 (D. Mont. 1999), aff d in relevant part, 74 Fed. Appx. 718, 2003 WL (9th Cir. 2003). 13 Sierra Club v. Hankinson, 939 F. Supp. 872, (N.D. Ga. 1996) C.F.R (a), (d) C.F.R (i). 6

7 violation of a water quality standard. It has direct relevance to the proposed ESCGP- 2 as that permit is promulgated pursuant to the Department s duties to control discharges of sediment that may impair water quality under both state and federal law. The EPA regulation noted supra allows for one limited exception - contained in 40 C.F.R (i)(1) and (2) - to this prohibition of discharges into impaired waters that already are violating the standard. In order for a discharge of the pollutant in question to be allowed, EPA regulations require strict assurances that (1) the stream can handle the new discharge and still meet the standard and (2) that specific plans are in place to ensure that the stream will be brought back to health i.e., achieve the applicable water quality standard for that waterbody. 16 Specifically, EPA regulations require that: The owner or operator of a new source or new discharger proposing to discharge into a water segment which does not meet applicable water quality standards or is not expected to meet those standards even after the application of the effluent limitations required by sections 301(b)(1)(A) and 301(b)(1)(B) of CWA and for which the State or interstate agency has performed a pollutants load allocation for the pollutant to be discharged, must demonstrate, before the close of the [NPDES permit] public comment period, that: (1) There are sufficient remaining pollutant load allocations to allow for the discharge; and (2) The existing dischargers into that segment are subject to compliance schedules designed to bring the segment into compliance with applicable water quality standards. 17 Thus, a permit applicant has the dual burden of demonstrating that there are sufficient pollutant load allocations to allow for the discharge and that existing dischargers into that segment are subject to compliance schedules designed to bring the segment into compliance with applicable water quality standards. 18 Pinto Creek Prohibits Issuance of Permits in the Susquehanna Watershed Within the Commonwealth if the Discharge from Construction or Operation Will Cause or Contribute to a Violation of Water Quality Standards The Court held in Pinto Creek that no permit may be issued to a new discharger if the discharge will contribute to the violation of water quality standards. 19 Of critical importance to the court s decision there was the fact that the TMDL at issue found that a number of existing sources of copper loading into Pinto Creek needed to reduce their pollutant discharges before 16 Id. 17 Id. 18 Id. 19 Pinto Creek, 504 F.3d at

8 the stream would achieve the relevant copper limitation standard. 20 In that case there were additional sources of the pollutant from point and nonpoint sources as well as other proposed discharges from like the one challenged. The Court s holding reinforced that the relevant inquiry was whether water quality standards would be violated at the point of discharge, and established the basic procedure that must be followed before a new NPDES permit is issued for a discharge into an impaired water: If point sources, other than the permitted point source, are necessary to be scheduled in order to achieve the water quality standard, then EPA must locate any such point sources and establish compliance schedules to meet the water quality standard before issuing a permit. If there are not adequate point sources to do so, then a permit cannot be issued unless the state or [the discharge permit applicant] agrees to establish a schedule to limit pollution from a nonpoint source or sources sufficient to achieve water quality standards. 21 The Court noted that its ruling did not force the permitting authority to take any action requiring existing discharges to reduce pollutant loadings. Rather, [t]he EPA remains free to establish its priorities; it just cannot issue a permit to a new discharger until it has complied with [40 C.F.R (i). 22 Lastly, the Pinto Creek court noted that its ruling does not require that the remediation of all the existing discharges into the impaired stream segment (in order to achieve the water quality standards) be actually completed prior to the issuance of a new NPDES permit pursuant to 40 C.F.R (i). 23 Rather, Pinto Creek required that the compliance schedules mandated by 40 C.F.R (i)(2) and the court s own ruling be established for all the discharges prior to issuance of the new permit. 24 The problem with the NPDES permit in Pinto Creek was that - except for the partial remediation of the old mine - none of the other pollutant sources discharging into Pinto Creek had any schedules established to reduce the overall pollutant loadings into the stream to the point where the stream would achieve the pollutant standard. 25 Applied to the Department s proposed permit Pinto Creek means several things. First, that, based upon NRDC v. EPA, the Department must provide a NPDES permit for oil and gas operations and related construction activities disturbing more than 1 acre that are likely to discharge contaminated sediment to a waterway in a manner that would contribute to a violation of water quality standards. 20 Id. 21 Id. at Id. at Id. at Id. 25 Id. 8

9 Second, like Pinto Creek, some portions of the Susquehanna Watershed of the Commonwealth possess other point and nonpoint source discharges of sediment to the Susquehanna and its tributaries which are deemed impaired for that pollutant and have not entered into a compliance schedule. Thus the Department must assess any current, proposed, or potential NPDES permitted oil and gas operation or related activity to determine if it will discharge to a waterway impaired for sediment. If such a discharge is likely, and the site of the discharge is within the Susquehanna Watershed, a permit cannot issue as it will de facto cause or contribute to a violation of water quality standards under the Bay TMDL. The exceptions to this rule noted by the Court in Pinto Creek are not applicable for oil and gas development or related construction NPDES permits because the Commonwealth has yet to finalize a compliance schedule designed to bring the Susquehanna into compliance with Bay TMDL standards. The Court in Pinto Creek required discrete proof of not only what pollutant load reductions are needed to bring the waterbody back to health, but also to actually show how these reductions will be achieved. 26 As aforementioned, all point sources must be subject to compliance schedules under a TMDL sufficient to meet water quality standards, and if there are not adequate point sources to do so, then a permit cannot be issued unless the state establishes a schedule to limit pollution from nonpoint sources sufficient to achieve water quality standards. These types of allocations have not been ascertained nor compliance schedules set within the Commonwealth. Put another way, only upon completion and implementation of Phase II Watershed Implementation Plans with wasteload and load allocations prescribed in the Bay TMDL will the Susquehanna River and its tributaries meet water quality standards and new permitted discharges of sediment be permissible. The Department must incorporate these requirements as mandatory conditions within its ESCGP- 2. It must account for the discrepancy in its current practices of a) not ensuring applicable NPDES permitting for oil and gas development and related construction activity that disturbs over 1 acre and is capable of discharging sediment to special protection waters and thus contributing to a violation of water quality standards; and b) the Department may not issue any permits pursuant to its duties under (a) until compliance schedules are in place for the Susquehanna Watershed within its borders that ensure any additional discharges of sediment will not violate water quality standards. As explained supra, the proposed ESCGP- 2 fails to account for these mandatory duties and therefore requires appropriate amendment to comply with these rules prior to final publication. III. Strengthen Monitoring, Inspection, and Reporting Requirements Section 8 of the proposed permit contains the Department s monitoring, inspection, and reporting requirements. These requirements can be significantly improved in the following manner. 26 Pinto Creek, 504 F.3d at 1014 n.2. 9

10 In addition to visual site inspections the owner or operator should be required to sample and report stormwater discharges on a quarterly basis. The parameters should have guidelines or thresholds, an exceedence of which would indicate that BMPs are not properly functioning thereby triggering new improved BMPs designed to prevent future exceedences. o Such sampling should occur during the first rain event of the quarter and within 4 hours of the start of such rain event. Should the operator fail to sample during the first rain event, the operator should be required to sample during the next rain event within 4 hours of the start of said event. o Samples should be sent for third party laboratory analysis for the parameters of TSS, turbidity, ph, Oil and Grease, and other constituents relevant to the permittee, determined on a case- by- case basis by category (well pad vs pipeline vs wastewater storage facility, etc). o Reporting should be required within two months of the last day of the quarter. The requirement under Section 8 (a) of inspection after measurable stormwater event should be defined by the Department as a particular measurement and then compared per quarter to USGS precipitation counts by the Department to ensure compliance, similar to DMR inspection of permitted point source dischargers. The Department should clearly define what constitutes a critical stage under Section 8 (c), or require each Conservation District to do so, rather than leave the requirement amorphous and completely discretionary. Clarify what constitutes an increased risk of water pollution under Section 8 (d), and provide a mechanism iterating that inspectors must timely respond to documented evidence of such an occurrence. IV. The ESCGP- 2 Contains Several Vital Terms That Should Be Retained in the Final Permit The inclusion of Section 6 (n) concerns the non- applicability of an expedited permit process for projects located in or with the potential to discharge to special protection waters, for well pads proposed in wetlands, or for earth disturbances on known contaminated lands. This precautionary element should remain in the permit s final iteration as it properly requires investigation and analysis of site- specific concerns prior to issuance of authorization. Similarly, the final permit should continue to require antidegradation analysis for any proposed permit that may entail discharges to special protection waters. While this provision is referenced generally at Section 16, the Department could state this requirement, and the rule that the appropriate time for such review is prior to any potential activity, more clearly. The Department should better define Section 3(b)(6) permit shall not apply to discharges which individually or cumulatively have the potential to cause significant adverse 10

11 environmental impacts. In what manners does the Department contemplate this section s application? Likewise, what is the anticipated indicia of proof showing a discharge will have such an impact? Would such a discharge then trigger automatic remedial activities noted in the permit, or perhaps automatic sanctions? Fleshing out this provision would better allow the public, Conservation Districts, and inspectors to understand circumstances for which they should be alert, and thus best protect water resources of the Commonwealth. Lastly, we urge the Department to specifically note that definition of oil and gas activities includes earth disturbance activities associated with pipeline construction as it is related to transmission facilities. Pipelines and their infrastructure are logically related to transmission facilities and themselves create potentially significant direct, indirect, and cumulative impacts to water resources in terms of their erosion and sediment impacts. Clearly delineating the aforementioned definition will enable more precise and efficient management of earth disturbance activities anticipated as covered by the ESCGP- 2. V. Conclusion We thank the Department for the opportunity to provide this comment and look forward to assessing the final permit. We again urge the Department to improve the draft ESCGP- 2 by amending its provisions consistent with the legal and scientific issues noted supra. Respectfully submitted, /s/ Michael Helfrich Lower Susquehanna Riverkeeper Stewards of the Lower Susquehanna, Inc. /s/ Guy Alsentzer Director of Operations Stewards of the Lower Susquehanna, Inc. 11