‘Better and better and better and better’
From an Article by Ken Ward, Jr., Charleston Gazette-Mail, February 11, 2017
Commenting in his speech about the state’s natural gas industry, Justice said, “We need to do everything we can to exploit that to make it even better and better and better and better.” The governor also offered his support for some version of a controversial “forced pooling” bill that could make holdout mineral owners sign leases.
As natural gas production in the Marcellus Shale region of North Central West Virginia and the state’s Northern Panhandle has increased over the last decade, so have complaints and concerns from residents in those communities about all manner of impacts on their lives.
When lawmakers and the Tomblin administration passed a new state law to try to better regulate modern horizontal drilling and hydraulic fracturing, many concerns of local citizens were not addressed. Tomblin’s bill was weaker than one recommended by a legislative committee that spent months reviewing the issue.
An earlier Tomblin executive order on the issue was also weakened after private discussions with oil and gas lobbyists, and the governor’s office later refused to make public correspondence with the industry about that order.
In the final legislation, action on some key issues for citizens — concerns about air quality, noise and excessive light, questions about whether jobs were going to local residents and about the safety of waste disposal practices — were put off while additional studies of those matters were conducted.
The DEP later fell behind on getting those studies finished, and, even after extensive briefings on the eventual findings, lawmakers have declined to take additional actions to address problems the studies identified. Instead, lawmakers have tried to push several bills that would erode permit requirements for drilling operations and take away the rights of citizens to file certain types of lawsuits against those activities. Those bills have so far failed, at least partly because of opposition from Huffman while he was DEP secretary.
When she returned as the DEP’s environmental advocate in June 2014, one of the issues Wendy Radcliff worked on was the flood of complaints the DEP was receiving from residents near various operations of the oil and gas industry. The advocate office worked with others in the DEP to schedule public meetings and to plan visits to the area so Huffman and other top agency officials could get a first-hand look at what residents were concerned about.
Doddridge County resident Tom Bates attended some of those meetings to tell DEP officials about what it was like for his family when a large natural gas compressor station moved in across the road. Compressor stations use large engines — in the case of the one near Bates, 11 of them — to keep natural gas constantly pressurized while it is moved for many miles through various types of pipelines.
“We were trying to get them to do something about the noise,” Bates recalled last week. “At night it lights up our front yard, and we can hear the engines inside our house.”
Bates described watching a potted plant vibrate across a nightstand in his bedroom because of the shaking from the rumble of the engines. “We are for oil and gas as far as energy independence and local jobs,” Bates said. “We just think it needs to be done the right way.”
Bates was disappointed to hear the new DEP leadership had deleted the noise and light protections. “I wasn’t aware of that at all,” Bates said. “That’s very discouraging. I think there should be rules and regulations.”
‘This uncertainty is unacceptable’
While the legislatively mandated study of the issue did not find clear violations of noise or light standards, it did recommend the industry pay more attention to such matters.
So, in August 2015, the DEP proposed a change in one of the types of permits it issues for compressor stations and dewatering facilities associated with the natural gas industry.
Such facilities would normally have to obtain a standard DEP air pollution permit, one that is applied for and reviewed individually. But to save the industry time in getting approval, the DEP also offers companies the ability to have such facilities authorized under a general permit. The general permit spells out standard construction and operating restrictions, and if companies agree to them up front, they avoid the most time-consuming individual permit process.
The change the DEP proposed was to simply insert a line into the general permit — called G35 — that said any facilities authorized under that permit “shall not create a nuisance to the surrounding community by way of unreasonable noise and light during operations.”
When the DEP sought public comment on that proposal, local residents and citizen groups turned out to support it, and industry officials spoke up to oppose it. For example, Lyn Bordo described what it was like to live near a compressor station along the Doddridge-Ritchie county line.
“Most days, especially mornings, I feel like I am living on an airport runway,” Bordo told the DEP, according to an agency response to public comments.
On the other hand, Antero Resources Inc. complained that the DEP’s proposed language did not really provide a standard for what constitutes a nuisance.
“Absent a standard, the permittee and the agency have no tangible means of measuring compliance,” Antero said. “This uncertainty is unacceptable.”
On Dec. 18, 2015, the DEP finalized the changes to the general permit, which then became known as G35-C, because it was a revision of the original G35.
About a month later, on Jan. 15, 2016, Charleston lawyer David L. Yaussy, appealed the changes to the state Air Quality Board on behalf of the West Virginia Oil and Natural Gas Association. Yaussy challenged a variety of changes the DEP had made to the general permit, including the addition of the language about noise and light.
Board members held a hearing in March 2016. Jerry Williams, a DEP air quality engineer who wrote the permit, testified that the noise and light language was added because, “Historically, we’ve had issues from citizens who live nearby these facilities, who have provided objections to these facilities based on those issues. If a citizen comments on things, we take those issues very seriously.”
On Aug. 26, 2016, the air board issued a 14-page final order. The board ordered the DEP to make some changes in other parts of the general permit, but upheld the noise and light language.
Board members noted gas companies didn’t have to use the general permit and could avoid the noise and light language by going through the process of seeking an individual permit for compressor stations or similar facilities.
Regarding the industry argument that the DEP’s air office did not have any legal authority to regulate noise or light, the board ruled language in state law giving the agency the authority to “impose any reasonable condition” as part of the general permit gave the DEP the authority it needed.
The oil and gas organization had the right to appeal the air board’s decision to Kanawha Circuit Court within 30 days, but it did not do so.
(Part 3 of this Article to be posted here tomorrow).