All WMGR123 permit holders open to public comment

This article by Teresa Irvin McCurdy of TD Connections, Inc. appears in the March 2021 issue of The PIOGA Press.

The Waste Management General Permit WMGR123 was developed in 2010 by the Department of Environmental Protection as a general permit to provide a consistent framework to permit the treatment and storage of Marcellus/Utica fracturing fluids for beneficial reuse. In less than two years, the permit was revised to clarify sections of the conditions as well as to broaden some definitions to treat other materials generated by the industry.

Like other general permits, the permit expires in 10 years unless it is renewed. In the beginning of 2020, DEP began the process to renew the general permit. DEP held stakeholder meetings with industry, environmental groups and its own regional departments across the state. It also held a 60-day public comment that was published in the Pennsylvania Bulletin.

On December 19, the department published a notice in the PA Bulletin outlining a summary of the changes that were made to the WMGR123 and that those changes would become effective January 4, 2021.

On February 4, the Center for Coalfield Justice, Mountain Watershed Association, Clean Air Council, Environmental Integrity Project, Earthworks and PennFuture, along with two concerned citizens, questioned the procedures used to provide public notice for the renewed coverage of 49 existing facilities operating under WMGR123. In addition, several news stories appeared in the Pittsburgh Post-Gazette on the issue. In response, although DEP believes it properly gave public notice, the department entered into a stipulation of settlement with these parties on February 16 to hold a 60-public comment period for the renewed coverage of the existing 49 facilities that hold a WMGR123 permit. The public comment period will NOT consider changes to the WMGR123 permit itself but rather on the individual facilities. DEP has furthermore agreed to respond to any public comments within 180 days of the close of that comment period. Based on the public comments, and if it deems appropriate, DEP will make modifications to the previously approved WMGR123 authorizations.

The original WMGR123 language listed the “Registration Requirements” which did not require a public comment period and its Permit Decision Guarantee only provided the department 45 days to complete its review. However, due to the complexities of applications and bonding requirements, DEP wanted a longer timeframe to complete the review. Therefore, the department changed the permit from a simple “Registration” to a “Determination of Applicability” (DOA).

During the public comment, several commentators had requested a public comment period for all applications and renewals so that people in the communities affected by these facilities would have a chance to provide comments. In the department’s comment response document, it outlined that no additional public comment was needed as the DOA change already requires a 60-day public comment period to be published in the PA Bulletin for individual permittees.

In DEP’s comment response document, it specifically responded to requests for additional public comment, stating: “Pennsylvania’s residual waste regulations set forth requirements for public involvement when a person or municipality requests coverage under a general permit for the beneficial use of waste. WMGR123 requires applicants to submit a Determination of Applicability (DOA) prior to processing or beneficially using oil and gas liquid waste pursuant to the terms and conditions of WMGR123. The DOA includes submission of a robust application in which operating plans, facility maps, documentation of insurance, bonding calculations, and other records documenting the proposed facility’s compliance with the residual waste regulations are submitted for DEP’s review and approval. In accordance with 25 Pa. Code § 287.642 (relating to determination of applicability), DEP publishes a notice in the Pennsylvania Bulletin for administratively complete applications that provides instructions for interested persons or municipalities to submit comments, recommend revisions to, or advocate approval or disapproval of the application. Interested persons may also request that DEP hold a public meeting or public hearing on a DOA under a general permit. The Pennsylvania Bulletin can be accessed electronically anywhere there is internet access, or for smart phone users, where a cellular signal exists, and citizens can sign up to receive emails that notify them when an application is pending in their county location.”

Furthermore, DEP explained, “In addition, 25 Pa. Code § 287.641(g) (relating to inclusion in a general permit) states that a person or municipality that applies to DEP for a DOA under a general permit, shall submit a copy of the application to the host municipality and the appropriate county, county planning agency and county health department, if one exists, at the same time that the person or municipality files the DOA with DEP. The host county, municipality, or applicable county planning agency and county health department can also opt to provide information regarding the application to individuals within their respective jurisdictions.”

Additionally, DEP acknowledged that there is a list of renewals that are being appealed by the environmental groups, but not on the basis of lack of public notice. (If you are interested the list of renewals being appealed, please contact the author at teresa@tdconnections.com.) To date only one appeal has been docketed on the Environmental Hearing Board’s website.

What does this mean for industry? More public scrutiny and most likely more delays in obtaining needed permits. It is important to note that industry should make their voices heard during the upcoming public comment period to support these WMGR123 facilities that it relies on to operate. It is not enough for an association to make comments on behalf of industry but rather employees and vendors need to be heard as individual citizens as well.

Furthermore, some are asking if this creates a dangerous precedent by possibly opening up more general permits to more public scrutiny.