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PA Bulletin, Doc. No. 06-2270

NOTICES

Erosion and Sediment Control and Stormwater Management for Oil and Gas Exploration, Production, Processing, Treatment Operations or Transmission Facilities

[36 Pa.B. 7071]
[Saturday, November 18, 2006]

   On June 12, 2006, the United States Environmental Protection Agency (EPA) published final amendments to the National Pollutant Discharge Elimination System (NPDES) regulations for stormwater discharges associated with oil and gas exploration, production, processing or treatment operations or transmission facilities (see 71 FR 894) to implement new provisions of the Clean Water Act, established by the Energy Policy Act of 2005. In the rulemaking, the EPA acknowledged that its rule does not prohibit states from regulating oil and gas earth disturbance activities under state authority, to prevent violations of a state's water quality standards.

   By this notice, the Department of Environmental Protection (Department) invites public comment on its plan, established under EPA's rulemaking at 71 FR 894, to continue to regulate erosion, sediment and stormwater runoff associated with earth disturbance at oil and gas exploration, production, processing or treatment operations or transmission facilities (oil and gas facilities). The Department's plan is proposed under the authority of The Clean Streams Law (35 P. S. §§ 691.1--691.1001) and the Oil and Gas Act (58 P. S. §§ 601.101--601.605).

Background

   ''Erosion and Sediment Control Plans'' and implementation of best management practices (BMPs) have been required of oil and gas operators in this Commonwealth since 1972. The purpose of the plans and BMPs are to minimize the potential for erosion and sedimentation and protect the waters of this Commonwealth. This is a long standing practice under the The Clean Streams Law, 25 Pa. Code Chapter 102 (relating to erosion and sediment control), the Oil and Gas Act, 25 Pa. Code Chapter 78 (relating to oil and gas wells) and is one of the core elements of the Department's program for regulating oil and gas activities. The Department's first Erosion and Sediment Control Manual for earth disturbance at oil and gas wells was published in 1981. It is now incorporated into the Department's ''Oil and Gas Operators Manual.''

   In 1990, EPA promulgated the NPDES Phase I Stormwater rule. This rule established permit requirements for certain stormwater discharges, including stormwater discharges associated with construction activities that disturb 5 acres or greater or that disturb less than 5 acres when part of a larger common plan of development or sale that disturbs 5 acres or more. The Commonwealth responded in kind and required NPDES permits for construction activities when they triggered the permit threshold. Earth disturbance activities at oil and gas wells were included.

   On January 1, 2000, 25 Pa. Code Chapter 102 was revised to incorporate a requirement to obtain a NPDES Permit for Stormwater Discharges Associated with Construction Activities. On March 17, 2001, the Department issued the ''Policy for NPDES Permits for Stormwater Discharges Associated with Construction Activities at Oil and Gas Wells'' (Document #550-2100-008). This document sets forth the Department's policy for determining when earth disturbances at oil and gas wells trigger the permit requirement. The policy was updated and reissued on July 26, 2003.

   On August 8, 2005, President Bush signed into law the Energy Policy Act of 2005. Section 323 of the Energy Policy Act of 2005 added a new paragraph (24) to section 502 of the Clean Water Act (CWA) to define the term ''oil and gas exploration, production, processing, or treatment operations or transmission facilities'' to mean ''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.'' This term is used in section 402(l)(2) of the CWA to identify oil and gas activities for which the EPA shall not require NPDES permit coverage for certain storm water discharges. The effect of this statutory change makes construction activities at oil and gas sites eligible for the exemption established by the CWA section 402(l)(2).

Department Plan

   Under the authority of the The Clean Streams Law and the Oil and Gas Act, the Department has developed a plan to continue regulating erosion, sediment and stormwater runoff associated with oil and gas activities. Components of the plan include the following activities:

   *  Issuance of a General Permit for Erosion and Sediment Control: The Department plans to develop and issue a general ''Erosion and Sediment Control Permit'' specific to earth disturbance at oil and gas well activities so that proper permit coverage is available to operators who trigger the permit threshold. The Department has found that an effective strategy for minimizing the potential for erosion and sedimentation from oil and gas activities is keeping the unstabilized area of earth disturbance below 5 acres. Requiring a permit for earth disturbance activities that exceed 5 acres provides an incentive for the operator to minimize the disturbed area and restore the disturbed area promptly after completion of the well. When the unstabilized disturbed area for the project exceeds 5 acres, the added protection gained through an Erosion and Sediment Control Permit is beneficial. The Department expects to issue public notice for the General Permit in 2007.

   *  Development of Revised Regulations: 25 Pa. Code § 102.5 (relating to permit requirements) states that a permit must be obtained from the Department when the disturbed area for the project is 5 acres or more. This is also consistent with 25 Pa. Code § 92.2(c) (relating to incorporation of Federal regulations by reference. Section 102.5 uses the term ''NPDES Permit for Stormwater Discharges Associated with Construction Activities.'' The Department will be proposing revised regulations to change the name of the permit to an ''Erosion and Sediment Control Permit'' for oil and gas activities similar to the term currently used for timber harvesting and road maintenance. The Department expects to propose the revised rule to the Environmental Quality Board in 2007.

   *  Revision of Existing Policy: The existing ''Policy for NPDES Permits for Stormwater Discharges Associated with Construction Activities at Oil and Gas Wells'' (Document #550-2100-008) will be revised to be consistent with EPA rules and to explain the Commonwealth's specific permit program for earth disturbance associated with oil and gas activities. It is expected that the proposed revisions will be published for public comment in 2007.

   *  Continued Enforcement: Since 1972, the requirements of 25 Pa. Code Chapter 102 ''Erosion and Sediment Control'' for ''Erosion and Sediment Control Plans'' and implementation of best management practices (BMPs) have applied to earth disturbance at oil and gas activities. The Department intends to continue its enforcement of 25 Pa. Code Chapter 102.

Public Comment Period:

   The Department invites public comment on its plan to continue to regulate erosion, sediment and stormwater runoff associated with earth disturbance at oil and gas facilities. Interested persons may submit written comments on the Department's proposed plan by December 18, 2006. Comments submitted by facsimile will not be accepted. The Department will accept comments submitted by e-mail. A return name and address must be included in each e-mail transmission. Written comments should be submitted to Chief, NPDES Construction and Erosion Control, Department of Environmental Protection, Bureau of Watershed Management, Division of Waterways, Wetlands and Stormwater Management, P. O. Box 8775, Harrisburg, PA 17105-8775. Comments may also be sent to ep-oilgaspermit@state.pa.us.

   Questions regarding this notice should be directed to Kenneth Murin, Bureau of Watershed Management, at (717) 787-6827, or Ronald Gilius, Bureau of Oil and Gas Management, at (717) 772-2291.

KATHLEEN A. MCGINTY,   
Secretary

[Pa.B. Doc. No. 06-2270. Filed for public inspection November 17, 2006, 9:00 a.m.]


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