WV11611

WEST VIRGINIA OIL AND NATURAL GAS ASSOCIATION

January 23, 2017

By e-mail to DEPG80A0wv.gov
Mr. Jerry Williams, P.E.
Division of Air Quality
West Virginia Department of Environmental Protection
601 57th Street, SE
Charleston, WV 25304

Re:

Comments on Draft Class II General Permit G35-D

Mr. Williams:
The West Virginia Oil and Natural Gas Association ("WVONGA") appreciates the
opportunity to provide the following comments on the West Virginia Department of
Environmental Protection Division of Air Quality's("WVDAQ") proposed Class II General
Permit G35-D for the Prevention and Control of Air Pollution in regard to the Construction,
Modification, Administrative Update and Operation of Natural Gas Compressor and/or
Dehydration Facilities (the "Draft General Permit"). Chartered in 1915, WVONGA is one of
the oldest trade organizations in the State, and is the only association that serves the entire
oil and gas industry. The activities of our members include construction, environmental
services, drilling, completion, production, gathering, transporting, distribution and
processing. WVONGA members operate in almost every county in West Virginia and
employ thousands of people across the State, with payrolls totaling hundreds of millions of
dollars annually. Our members have cumulative investment of nearly ten billion dollars in
West Virginia, account for 80% of the production and 90% of the permits, operate more
than 20,000 miles of pipeline across the state and provide oil and natural gas to more than
300,000 West Virginia homes and businesses. As such, WVONGA's members have a keen
interest in all aspects of environmental regulation associated with oil and gas activities,
including the Draft General Permit.

 Mr. Jerry Williams, P.E.
January 23, 2017
Page 2

A. Specific Comments on Draft General Permit
a. Facility-Wide Requirements(Section 3.0)
Section 3.2.8. The West Virginia Division of Air Quality("DAQ") has no authority to
regulate noise and light, and it cannot impose limitations in the Draft General Permit that
purport to regulate noise and light. Even if it could, the prohibition of a "nuisance" and
unreasonable light and noise" is too vague to enforce, as it gives the permittee no guidance
as to what constitutes permitted behavior. This section should be eliminated from the
General Permit.
The West Virginia Air Pollution Control Act("WVAPCA") only gives the DAQ the
authority to regulate air pollutants, and air pollutants are defined as "solids, liquids, or
gases which, if discharged into the air, may result in statutory air pollution." W. Va. Code §
22-5-2(1). Statutory air pollution is "limited to the discharge into the air by the act of a man
of substances (liquid, solid, gaseous, organic or inorganic)..." W. Va. Code § 22-5-2(6).
Neither noise nor light is liquid, solid, or gas and, thus—under the explicit language of the
WVAPCA—neither noise nor light can be regulated by the DAQ. The statutory language
explicitly includes solid, liquids, and gases and does not contain any language that allows
the DAQ to regulate anything other than physical substances.
When interpreting a possibly ambiguous statute "where general words follow an
enumeration of persons or things, such general words are not to be construed in their
widest extent but are to be held as applying only to persons or things of the same kind,
class or nature as those specifically mentioned." West Virginia Dept. ofHighways v. Farmer,
159 W. Va. 823,826-27(1976)(citations omitted)(holding that when a statute specifically
enumerated oil and gas, the term "other minerals" only included minerals that are of the
same kind, class, or nature as oil and gas and, thus, limited the application of the statute to
other petroleum products). This doctrine of statutory interpretation is known as "ejusdem
generis" or "of the same kind, class, or nature." See id.
Under this doctrine, the noise and light restrictions in the Draft General Permit must
be eliminated because the language in the WVAPCA has limited, even in its broadest
possible interpretation, the DAQ's authority to regulate air pollutants in the form of
substances discharged into the air by the act of man. While the WVCAPCA does not define
"substance," the generally recognized definition of substance is "matter of particular or
definite chemical constitution." Substance, Merriam-Webster Dictionary, https://www.
merriam-webster.com/dictionary/substance (last visited January 16, 2017). Thus—even if
the DAQ chooses to interpret the definition of statutory air pollutant to include other

2

 Mr. Jerry Williams, P.E.
January 23, 2017
Page 3

discharged, man-made substances—noise and light still do not fall into the realm of DAQ
control because noise' and light2 are not substances.
Furthermore, the DAQ has never developed a rule that would identify harmful levels
or under what conditions noise and light can be lawfully generated. If the DAQ believed it
had authority to regulate noise and light, it would have drafted such a rule before imposing
noise and light restrictions in the Draft General Permit. Permits are not intended as a
substitute for rule making.
Even if the DAQ had the authority to regulate light and noise, Section 3.2.8 in the
General Draft Permit is impermissibly vague because it provides no standard to apply.
Neither oil and natural gas companies, nor members of the Air Quality Board, nor the
inspectors for the DAQ,are provided the specificity necessary to determine what
constitutes a violation. There is no guidance, structure, or clarification regarding what
levels of light or noise constitute a "nuisance" or even what process will be used to measure
noise and light levels. Such undefined limits on noise and light are unlawfully vague and
unenforceable.3
Importantly, eliminating Section 3.2.8 does not leave the public without protection
against excessive noise and light, regardless of the source. There is already a definition of
nuisance under common law, and a place (the court system) for applying that definition.4 In
part, because there is an avenue to pursue issues of excess noise and light in the court
system, the vague restrictions imposed by Section 3.2.8 are not reasonable. Rather, not only
do noise and light restrictions fall outside the authority of the DAQ but they are also
unreasonable and impermissibly vague. Thus, Section 3.2.8 should be eliminated from the
General Draft Permit.

Noise is generally defined as a sound, and a sound is not a substance since it is not matter and does not have a
definite chemical constitution. Noise, Merriam-Webster Dictionary, https://www.merriam-webster.com/
dictionary/substance (last visited January 16, 2017).
2 Light is also not a substance because light is defined as "something that makes vision possible...[,] the sensation
aroused by stimulation of visual receptors...[, or] electromagnetic radiation of any wavelength that travels in a
vacuum with a speed of 299,792,458 meters(about 186,000 miles) per second." Light, Merriam-Webster Dictionary,
https://www.merriam-webster.com/dictionary/substance (last visited January 16, 2017). Thus, like noise, light also
does not meet the definition of a substance.
3 45 CSR 13-5.11 requires that all emission limits in permits be "quantifiable, permanent and practically
enforceable." Section 3.2.8 is not quantifiable, permanent, or practically enforceable.
4 Although it is not clear whether Section 3.2.8 is an attempt to prohibit a public or private nuisance, it is assumed
that the DAQ is concerned with public nuisance since, like municipality, the DAQ's interest in preventing a
nuisance is in the context of harm to the general public or public interest.

3

 Mr. Jerry Williams, P.E.
January 23, 2017
Page 4

B.

Conclusion

WVONGA appreciates the opportunity to provide these comments on the Draft
General Permit, and would be happy to discuss any of the issues raised above with the
agency. Again, WVONGA commends WVDAQ on its efforts to ensure that the Draft General
Permit promotes operational flexibility for the regulated community while minimizing the
administrative burden for both industry and the agency. WVONGA believes that the Draft
General Permit represents a significant step forward in this regard. Please do not hesitate
to contact me at(304)343-1609 should you have any questions.

Respectfully submitted,

Anne C. Blankenship, Executive Director

4