WEST VIRGINIA AIR QUALITY BOARD WEST VIRGINIA OIL NATURAL GAS ASSOCIATION, Appellant, v. Case No. 16-02-AQB DIRECTOR, DIVISION OF AIR QUALITY, DEPARTMENT OF ENVIRONBIENTAL PROTECTION, Appellee. FINAL ORDER The West Virginia Oil Natural Gas Association ?led this appeal on January 15, 2016 with Air Quality Board (?Board?). The appeal challenges the West Virginia Department of Environmental Protection Division of Air Quality's Class II General Permit G35-C ("the permit"), issued on December 18, 2015. WVONGA is an association of West Virginia oil and gas producers and transporters, as well as ancillary businesses in the state that support the industry. (Notice of Appeal, 2.) Its members apply for air emission permits such as the G35-C Class II General Permit for the Prevention and Control of Air Pollution in regard to the construction, modi?cation, relocation, administrative update and operation of natural gas compressor and/or dehydration facilities. The following issues were before the Board and the Findings of Fact and Conclusions of Law are addressed in each section: Request to Intervene The West Virginia Surface Rights Owners? Organization (WVSORO) requested to ?le a brief as an intervenor (or alternatively, as an amicus brief). However, the request and brief was ?led 105 days after Notice of Appeal was ?led and 31 days after the evidentiary hearing. The relevant law states as follows: person affected by the matter pending before the board may by petition intervene as a party appellant or appellee.? w. Va. Code Ann. 22B-1-7(e) ?Upon timely application anyone may be permitted to intervene in an W. Va. R. Civ. P. 24 The Board ?nds that WVSORO failed to ?le a motion to intervene and therefore failed to timely ?le its Brief. The Board DENIES its motion to intervene and/or ?le an amicus brief. and Noiise Permit Condition WVONGA members challenge permit condition 3.2.8, which requires WVONGA members to avoid generating an unreasonable amount of light and noise to a surrounding community. (Certi?ed Record, 12.) WVONGA members argue on behalf of its member that they carmot comply with the condition because it cannot know what amount of light and noise is unreasonable. (WVONGA Brie}: 1.) Also, WVONGA members argue that the DEP can only regulate solids, liquids, or gases, which does not include light and noise. DEP counters that the general permit is voluntary WVONGA members do not have to use the permit and can pursue other permitting options), citizens often complain about light and noise, the light and noise conditions has not been a problem in other general permits, and there is legal authority to support inserting the condition in the general permit. (DEP Brief: 4-6. The relevant law states as follows: The Secretary may impose any reasonable condition as part of a granted administrative update, construction, modi?cation, and existing stationary source operating permit or relocation permit. Such condition may include, but not be limited to, the submission of periodic progress, operation or emissions reports, the provisions for suitable emissions sampling site and the installation of air pollutant monitoring devices. The Secretary shall impose or incorporate, consistent with all applicable rules, enforcement conditions which assure that all emission limitations contained within the permit are quanti?able, permanent and practicably enforceable. The Secretary may, on the basis of information provided in a permit application or with the agreement of the permit applicant, impose source-speci?c emission limitations, limits on the hours of operation or production rates, or other constraints to minimize air pollutant discharges or establish enforceable emission caps for a stationary source not otherwise Speci?cally required by a rule of the Secretary promulgated pursuant to W. Va. Code 22?5-1 et seq. Any portions of the permit application, other than plans and speci?cations, that are to be made permit conditions must be speci?cally identi?ed in the permit itself. W. Va. Code R. 45?13-5. The applicable facts are as follows: WVONGA members were issued a general permit to operate a natural gas compressor station on December 18, 2015. (Certi?ed Record, 1.) In section 3.2.8, there is a condition that WVONGA members re?ain from producing ?unreasonable noise and light?: 3.2.8. The registrant shall not create a nuisance to the surrounding community by way of unreasonable noise and light during operation. Appendix, .12 The permit is ?general? which means it is pre-drafted with default terms. WVONGA members and other applicants can voluntarily accept the pre-drafted permit and its default terms, or seek an item-by?item permit under 45 CSR 13 et. a1. WVONGA members and other Applicants often apply for the pre?drafted permit and its default terms because of its approval speed and ef?ciency. According to the DEP, noise and light are the biggest complaints from citizens. (Transcript, 12. Also, the DEP believes that its authority to regulate noise and light stems from the above regulation that allows ?any reasonable condition? in a permit. (DEP Brie? 12.) The Board ?nds that section 3.2.8 of the permit regarding limits on light and noise is lawful and reasonable. The statute permits DEP to impose ?any reasonable condition? in permits. Thus, the decision of the DEP with regard to the permit is AFFIRMED. See: W. Va. Code The parties have a right to appeal this decision to the Kanawha County Circuit Court. See: W. Va. Code Impact of 40 CFR 60 Subpart 0000 WVONGA members challenge multiple permit conditions that relate to Leak Detection and Repair (LDAR). (WVONGA Brie]? 2.) WVONGA argues that the condition is not needed because the same federal rule will be enacted any day now and can create con?ict with the rule. On the other hand, the DEP counters that it will change its rule to match the federal rule when it is enacted, including removing inconsistent/con?icting provisions. (Transcript, 25.) The law considered by the Board is as follows: (4) To promulgate legislative rules in accordance with the provisions of chapter twenty?nine-a of this code not inconsistent with the provisions of this article, relating to the control of air pollution: Provided, That no rule of the director shall specify a particular manufacturer of equipment nor a single speci?c type of construction nor a particular method of compliance except as speci?cally required by the ?Federal Clean Air Act,?1 as amended, nor shall any such rule apply to any aspect of an employer- employee relationship: Provided, however, That no legislative rule or program of the director hereafter adopted shall be any more stringent than any federal rule or program except to the limited extent that the director ?rst makes a Speci?c written ?nding for any such departure that there exists scienti?cally supportable evidence for such rule or program re?ecting factors unique to West Virginia or some area thereof; W. Va. Code Ann. The applicable facts are as follows: The general permit contains Leak Detection and Repair (LDAR) terms. Currently, there are no federal LDAR requirements. However, a federal LDAR rule has been drafted. epa. Walrulepd? It is expected to be ?nal and enforceable any day. Once the rule is ?nal, the DEP expressed that it would adjust its rule to match the federal rule as soon as possible. (Transcript, 25.) Nevertheless, WVONGA members worry that it will not know how to comply with the permit during the time between the enactment of the federal rule and the time it takes DEP to adjust its rule. (WVONGA Brief 3.) Also, WVONGA members believe that the DEP rule unlawfully creates a more stringent regulation than the federal counterpart. The Board ?nds that the rule is not unlawfully more stringent than a federal counterpart. There is not federal counterpart. Similarly, the Board does not believe that WVONGA members have provided suf?cient evidence that there will be problems complying with LDAR rule and the federal rule during the time the rules overlap. This is evidenced by the continual willingness to update its rule to match the federal rule once it becomes ?nal. Thus, the decision of the DEP with regard to the permit is AFFIRMED. See: W. Va. Code The parties have a right to appeal this decision to the Kanawha County Circuit Court. See: W. Va. Code ?223?2-3 Testing Holding Tanks with 90% Brine or Water WVONGA members challenge permit condition 5.0 which requires samples of holding tanks that contain 90 percent or more water or rine. (WVONGA Brief 3.) WVONGA argues Ihat these tanks hold a small amount of Volatile Organic Compounds (VOCs) that are dif?cult to detect and would cost $800.00 to $1,000.00 per tank. Also, WVONGA members argue that the permit requires multiple tanks to be tested that are linked to a single stream of water or brine when testing a single tank would be suf?cient. DEP counters that it has authority to regulate these tanks and implied that inspectors often discover VOCs in tanks when owners believe they are ?lled with just water or brine. (DEP Brief,? 6. The law considered by the Board is as follows: ?The Secretary may impose any reasonable condition as part of a granted administrative update, construction, modi?cation, and existing stationary source operating permit or relocation permit. . . W. Va. Code R. 45-13-5 The applicable facts are as follows: There are holding tanks at compressor stations that hold 90 percent water and/or brine. (Transcript, 25 28.) Nevertheless, many of the tanks have small amounts of Volatile Organic Compounds (V OCs). The general permit contains provisions that require operators to test the tanks for VOCs. (Transcript, 26.) Each tank has to be individually tested. That is true even in situations where a chain of tanks are connected to a single stream of ?uid brine and/or water). The Board ?nds that this permit condition is lawful and reasonable. The DEP has authority to test emitting tanks and there is no question that the watered down tanks contain at least some VOCs. There is no justi?cation for ignoring them. In addition, the Board will permit the DEP to require testing of every tank if connected to a single stream of ?uid. Given the weight differences between water/brine and VOCs, there is potential for the tanks to have differing quantities of VOCs as each tank ?lls and drains. The Board AFFIRNIS the action to require the condition in the permit. Control Devices WVONGA members challenge permit condition 7.1 which assumes redundant/backup control devices operate year around when calculating the Potential to Emit (PTE) pollutants. (WVONGA Brief 4.) WVONGA members argue that the condition unnecessarily increases the PTE because the redundant/backup control devices only Operate when the primary device fails. (Id. 0n the other hand, the DEP counters that a general permit is not intended to be a case-by- case permit and that there is no way of knowing how long a redundant/backup control device may operate in any given year. (DEP Brie? 8.) Thus, DEP contends that the PTE should be calculated assuming that the backup operates year around. (Tr. 30 42) The law considered by the Board is as follows: The Secretary may impose any reasonable condition as part of a granted administrative update, construction, modi?cation, and existing stationary source operating permit or relocation permit. W. Va. Code R. 45-13-5 The applicable facts are as follows: A stream of gas passes through a control device that reduces emissions. Backup control devices are placed in the circuit in case the primary control device fails. (Transcript, 34.) The general permit requires WVONGA members to calculate each device?s Potential to Emit (PTE) as if it operates year around (8,760 hours). 35. The Board ?nds that this is not reasonable. Thus, it is ORDERED that the permit be modi?ed so that WVONGA is required to calculate the PTE based on the highest emission from a control device that could handle the stream, plus any intrinsic emission such as those ?om pilot ?ames. See: W. Va. Code The parties have a right to appeal this decision to the Kanawha County Circuit Court. See: W. Va. Code It should also be noted that thermal oxidizers are ORDERED to be considered as control devices. It did not appear the DEP objected to this classi?cation. See: Transcript, 30?31. The parties have a right to appeal this decision to the Kanawha County Circuit Court. See: W. Va. Code F1ares WVONGA members challenge permit condition 7.1.2 which requires gas ?ares to operate at all times, effectively preventing downtime for maintenance or emergencies. (WVONGA Brief 4.) DEP argues that it is constrained by federal law, which does not permit downtime for ?ares. (DEP Brie? 9.) The law considered by the Board is as follows: Federal laws preempt state laws. See: Altria Group v. Good, 555 U.S. 70 (2008). The federal law in question is 40 CFR 60.18(e) which states that ?ares ?shall be operated at all times when emissions may be vented to them.? The applicable facts are as follows: WVONGA members want the permit to allow downtime for ?ares for the purpose of maintenance and/or emergencies. (WVONGA Brief 4.) The DEP states ?iat they cannot allow downtime because it is prohibited by federal law. (DEP Brief 9-) The Board ?nds that the DEP is unable to allow downtime in the permit. Any deviation from federal law by the DEP would be preempted. Thus, the decision of the DEP with regard to the permit is AFFIRMED. See: W. Va. Code The parties have a right to appeal this decision to the Kanawha County Circuit Court. See: W. Va. Code ?223-2-3 Routing Overhead and Vapors Through Condensers WVONGA members challenge permit condition 7.1.8.a which establishes emissions for vapors and overheads from the still column and requiring that they be routed through a condenser at all times. (WVONGA Brie? 4.) WVONGA members argue that the condition is unreasonable. (Id. at 5.) DEP counters that this condition was originally established with the help of WVONGA. map Brief: 9?10.) The law considered by the Board is as follows: The Secretary may impose any reasonable condition as part of a granted administrative update, construction, modi?cation, and existing stationary source operating permit or relocation permit. W. Va. Code R. ?45~13-5 The applicable facts are as follows: There are two types of gas streams that can be routed from a glycol dehydrator to a reboiler unit. (Transcript 9] 94.) They are the ?ash drum vapors and still vent vapors. (Id. The ?ash drum vapors can travel straight from the glycol dehydrator to the reboiler. (Id) The still vent vapors must ?rst travel through a condenser before entering the reboiler. (Id. The overall system can be con?gured for multiple routing combinations of these gases. For example, the reboiler can be con?gured to I) accept ?ash drum vapors (straight from the glycol dehydrator), 2) accept still vent vapors (after traveling through a condenser, or 3) accept both in the same operation. (Id) The Board ?nds that there is no evidence indicating that any of the three con?gurations would create emission issues. Thus, the BOARD orders that the permit be modi?ed to allow WVONGA members to use any of the three con?gurations or both. See: W. Va Code The parties have a right to appeal this decision to the Kanawha County Circuit Court. See: W. Va. Code ?223_2?3 Bypass Reports for Emission Control Device WVONGA members challenge permit condition 7.5.2 which requires a written report anytime a control device is bypassed. (WVONGA Brie? 5.) On the other hand, the DEP counters that the condition is designed to prevent operators ?'om circumventing the rules and any bypass would likely lead to emission exceedance. @1513 Brief 10.) The law considered by the Board is as follows: The Secretary may impose any reasonable condition as part of a granted administrative update, construction, modi?cation, and existing stationary source operating permit or relocation permit. W. Va. Code R. 45-13?5 The applicable facts are as follows: there are instances where an emission control device, such as a ?are, is bypassed. It can occur without allowing emissions to increase because, for example, an automatic shutdown of the ?ow occurs and/or a redundant backup) control device takes over. (Hausa-1p: 100 103. In these instances, the permit requires a written report regardless even if there is no increase in emissions. 49 50.) WVONGA believes that a written report is excessive if there is no increase in emissions as a result of the control device being bypassed. (WVONGA Briejf 15.) WVONGA members believe it is suf?cient to simply report the bypass in an operation?s log. (Id. The Board ?nds that allowing a bypass to be reported in an operations log is reasonable when there is no emission increase as a result of the bypass. A full report under those circumstances is not reasonable. Thus, the Board ORDERS the permit to be modi?ed to require a full report only when an emissions increase occurs as a result of bypassing a control device. Otherwise, WVONG members must report a bypass in an operation log. See: W. Va. Code 223-]- 10 The parties have a right to appeal this decision to the Kanawha County Circuit Court. See: W. Va. Code ?223-2-3. ?51 ORDERED and ENTERED this day of Aug?; ,2016. ?aw/14m J. M??hael Koon, Chairman 11 AIR QUALITY BOARD WEST VIRGINIA NOTICE OF RIGHT 0 APPEAL FINAL ORDER In accordance with ?22B?1?7(i) of the West Virginia Code, you are hereby noti?ed of your right to judicial review of this FINAL ORDER in accordance with ?22B-1-9(a) and of the West Virginia Code. Ifappropriate, an appeal of this ?nal order may be made by ?ling a petition in the appropriate circuit court within thirty (30) days from your receipt of this ?nal order in the manner provided by of the West Virginia Code. AIR QUALITY BOARD WEST VIRGINIA OIL NATURAL GAS ASSOCIATION, Appellant, v. Appeal o. 16-02-AQB DIRECTOR, DIVISION OF AIR QUALITY, DEPARTNIENT OF ENVIRONMENTAL PROTECTION, Appellee. CERTIFICATE OF SERVICE This is to certify that 1, Jackie D. Shultz, Clerk for the Air Quality Board, have this day, the day of August, 2016, served a true copy of the foregoing Final Order to all parties in Appeal No. by mailing the same via United States Mail, with sufficient postage, to the following address: via certi?ed ?rst-class mail: David L. Yaussy, Esquire Certified Mail "13? 1? "?135 ?all James D. Elliott, Esquire Spilman Thomas Battle PLLC 300 Kanawha Blvd., E. Charleston, WV 25301 via personal service: William Durham, Director Division of Air Quality WV Department of Environmental Protection 23"? ff:- 601 57* Street, S.E. WD Charleston, WV 25304 . . AUG 2015 Jason Wand?ung, Esquire Of?ce of Legal Services WVDEP WV Department of Environmental Protection OFFICE LEGAL SERVICES 601 57th Street, S.E. Charleston WV 25304 Jackie D. Shultz, Clerk