Residual Waste General Permit WMGR163, mandated by the General Assembly, allows “temporary” oil and gas liquid waste processing, storage and transfer facilities for unconventional oil and gas operations to “pop-up” within 300 feet of dwellings with no advanced public notice was published in the June 25 PA Bulletin as final. (formal notice)

Now, the only way landowners can determine if an oil and gas waste processing and transfer facility is locating next to them is to become an avid reader of the Pennsylvania Bulletin.

Mandated By Law

A provision requiring DEP to publish the general permit was included in the Administrative Code bill that passed along with the budget in 2021 with no prior warning or consideration by any committee or in any legislation publicly available in the General Assembly.

In fact, watch out this week for what the oil and gas industry might slip into this year’s budget-related bills.

Purpose

DEP said in its comment/response document [Comment #11]-- “The purpose of this general permit is to encourage the reuse of oil and gas liquid waste generated on oil and gas well sites and associated activities (such as compressor stations) through a closed loop process that allows for the return of processed liquid waste to well sites for reuse, minimizing freshwater withdrawals and reducing impacts to Pennsylvania’s water resources with no greater threat of environmental harm than the use of the fresh hydraulic fracturing fluid that it replaces.

“Without WMGR123 and WMGR163, it stands to reason that oil and gas operators would then rely solely upon freshwater withdrawals and non-waste derived chemicals which would ultimately lead to a substantial increase in the amount of oil and gas liquid waste and increased usage of the chemicals used in the oil and gas industry.

“The increased amount of waste generated by oil and gas activities in the Commonwealth would still need to be properly managed.”

Scope

The General Permit covers liquid wastewater generated by any oil and gas operation defined under the Unconventional Oil and Gas Regulations in Chapter 78a, including well sites, water withdrawals, residual waste processing and treatment operations, construction of pipelines, natural gas compressors and natural gas processing plants.

The General Permit gives the oil and gas industry approval for transferring, storing and processing liquid drilling wastewater through the  new General Permit for “temporary” facilities in operation for no more than 180 days at one time.

However, the operator can repeat the 180 day cycle for an unlimited amount of times during the life of the General Permit-- up to two years.

Public Notice

In response to a comment on the need for public notice submitted during the public comment period on the draft General Permit [Comment #5], DEP said--

“Receipt of applications for coverage under WMGR163 will be noticed in the Pennsylvania Bulletin. These notices will include instructions by which interested persons may request copies of application materials for review.

“While a formal comment period is not required for applications for coverage under WMGR163, the Department will still accept and consider comment(s) from interested individuals on an informal basis at any time, regardless of whether or not a formal public comment period occurs.

“Further, [the] Department always retains the authority to amend, suspend or revoke coverage under a general permit if the waste or activity is not covered by the terms and conditions of the general permit, in accordance with 25 Pa. Code § 287.643(e).”

Setbacks

The waste facilities approved under this General Permit can be located as close as 300 feet of an occupied dwelling or within 50 feet of a property line without notice to neighboring landowners. Even closer if a property owner waives those distances.  [Operating Condition #3]

These waste facilities can be located as close as 900 feet from a school building, park or playground. [Operating Condition #3]

Reused Liquid Waste Not Waste

WMGR163 specifically says,”Oil and gas liquid waste that has been processed or stored under the authority of this general permit is not considered a waste as defined in 25 Pa Code Section 287.1” and “beneficially used to develop or hydraulically fracture an oil and gas well.”

“Processed or stored oil and gas liquid waste shall be managed as a residual waste at the well site pursuant to 25 Pa. Code, Chapter 78, or 25 Pa. Code, Chapter 78a, until it is used to develop or hydraulically fracture an oil or gas a well.”  [Operating Condition #2]

After the processed water is used for fracking, DEP says, “The oil and gas liquid waste that is processed or stored and beneficially used under this general permit shall not be mixed with other types of waste materials, including hazardous waste, municipal waste, special handling waste, or other residual waste, unless otherwise approved by DEP in writing.”

Any liquid that comes back out of a shale gas well after using the processed water in well development and fracking is again considered waste and must be managed under the Residual Waste Regulations, according to DEP.

Radiation Monitoring

With respect to concerns about oil and gas liquid waste exceeding radiation protection standards, DEP said in its comment/response document [Comment #14], “WMGR163 facilities receiving oil and gas liquid waste must also develop a Radiation Protection Action Plan (RPAP), in accordance with DEP’s technical guidance document, “Radioactivity Monitoring at Solid Waste Processing and Disposal Facilities,” Document No. 250-3100-001, that contains methods by which a facility will detect the presence of radioactivity, identify the type of radioactivity present, measure the radiation emitted, and determine the actions needed to protect workers, the public and the environment from any radiation contained in the waste it receives. The RPAP also must include procedures for the monitoring of areas where waste is stored at the facility.”

Environmental Rights Amendment

In response to another public comment about the applicability of the Environmental Rights Amendment to the state constitution [Comment #12], DEP said--

“The Department has satisfied Article I, Section 27 of the Pennsylvania Constitution in the development of the WMGR163, in response to the legislative directive of Act 70.

“During the course of developing the WMGR163, in addition to ensuring the general permit satisfied the requirements of the Act 70 and the Solid Waste Management Act, the Department also undertook a thorough analysis of the impacts to public natural resources.

“The Department believes the terms and conditions of WMGR163, in conjunction with the residual waste regulations and the Solid Waste Management Act, all of which permittees under WMGR163 must comply with, are adequate in ensuring protection of human health and safety and the environment.”

Individual Applicability

The law passed by the General Assembly and signed by Gov. Wolf specifically prohibits DEP from requiring any individuals or municipalities using the General Permit from obtaining an individual determination of applicability-- an approval from DEP to use the permit-- and other protections under 25 PA Code Section 287.641(D).

In setting standards for other general waste permits, if DEP thought the determination of applicability was “necessary to prevent harm or a threat of harm to the health, safety or welfare of the people or environment of this Commonwealth,” they could require it.

The General Assembly took away that protection specifically in this case.

WMGR123 Controversy

A controversy erupted in February of last year over the use of the existing General Permit WMGR123 covering dozens of drilling wastewater storage and resume permits that eliminated public review of their individual uses.  Read more here.

In a settlement, DEP agreed to subject the individual uses of the General Permit to public review.  DEP continues this practice.  Read more here.

The shale gas industry sought to avoid this requirement by getting the General Assembly to mandate a new General Permit which resulted in WMGR163.

The theory with General Permits is the public has the opportunity to comment on the specific requirements in the permit and individual uses of the General Permits are then not so important.

However, where oil and gas operations are concerned, the public is very sensitive to what goes on next to them, let alone within 300 feet or less.

Click Here for a copy of the PA Bulletin notice.

Click Here for copies of the final WMGR163 and the Comment/Response Document.

Questions about the General Permit should be directed to Chris Solloway by sending email to: csolloway@pa.gov or call (717) 787-7381.

(Photo: FracTracker Alliance.)

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[Posted: June 24, 2022]

6/27/2022