DEP Eliminates Protections for Noise, Light from Natural Gas Facilities

Ken Ward Jr.

Less than two weeks after taking office, Gov. Jim Justice’s administration quietly deleted permit language intended to protect residents in West Virginia’s natural gas regions from excessive noise and bright lights from compressor stations and other facilities that are springing up across those communities.

On Jan. 27, the state Department of Environmental Protection removed from a streamlined permit for compressor stations and some other facilities language that stated such operations “shall not create a nuisance to the surrounding community by way of unreasonable noise and light during operations.”

The DEP, now headed by Justice appointee Austin Caperton, made the change in direct response to a request from the West Virginia Oil and Natural Gas Association, according to agency records.

The DEP’s action comes just five months after agency lawyers, under the Tomblin administration, successfully defended the language against a legal challenge from the industry trade association. The reversal by the new leadership at DEP was noted on a posting buried on the agency website, and it emerged publicly only when mention of it showed up in one of Caperton’s emails, included as part of a collection of documents obtained under the Freedom of Information Act.

Environmental groups and citizen organizations were shocked when they heard from a reporter about the DEP’s action, saying agency officials had not consulted them or even informed them of the move despite citizens having played a central role in 2015 in convincing then-DEP Secretary Randy Huffman the additional protections were needed for residents who live in the middle of the Marcellus Shale boom.

“To say we are disappointed in this decision is an understatement,” said Julie Archer, project manager for the West Virginia Surface Owners’ Rights Organization, a group of landowners in the gas-producing counties of the state. “We feel completely ambushed. Eliminating these provisions is a huge disservice to those living near these facilities, and it’s shameful that we are going to allow their lives, health and property to be ruined simply because the industry doesn’t want to put adequate protections in place.”

Fred Durham, the DEP air quality director who signed the permit change, did not return repeated phone calls. Neither Caperton nor the DEP’s acting public information officer, Jake Glance, responded to offers to allow them to explain the agency’s decision. Caperton, on orders from the governor’s office, has declined interview invitations from the Gazette-Mail.

Anne Blankenship, executive director of the West Virginia Oil and Natural Gas Association, indicated her organization was pleased with the DEP decision, citing in an email the same legal arguments her group raised about the permit language — and that the state Air Quality Board rejected in a unanimous decision in August.

“Not only were the noise and light conditions vague and unclear, which made compliance with them very difficult, such conditions are outside the jurisdiction of the Division of Air Quality as noise and light are not air pollutants,” Blankenship wrote in her email message.

Last week, during his State of the State address, Justice said he had ordered Caperton and the DEP to stop saying “no” to business and industry. Justice did not offer any examples of the DEP doing so, but he used part of his televised speech to blast the agency’s inspectors, saying they needed to stop wearing T-shirts and old jeans and looking like they “maybe haven’t shaved forever.”

“Now listen, I think they ought to look like something,” Justice said of the DEP’s inspectors. “And they will look like something, or we’ll have them tending to Grizzly Adams.”

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.”

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.

During a series of interviews before he left the DEP last month, Huffman talked about his belief that the agency needed to continue to do more to help address the on-the-ground effects of the natural gas boom on residents in those communities — and about how the standard agency inspectors should apply to what is acceptable for industry to do really wasn’t that complicated.

“When we run into issues out there that are subjective in the regulatory world, like the noise and light and mud on the road, the degree of a lot of that is subjective,” Huffman said. “I tell my folks there’s an easy standard here. The easiest one is to say if you lived in that house, how would you do it? Use your mother, if your mother lived in that house.

“If you approached every person who had an issue out there with an activity that we regulate, if you approached them with the same sensitivity you would if it were your mother, because that is somebody’s mother, and they don’t need to be subjected to these kinds of inconveniences and nuisances in their lives. I have this notion that we need to be very sensitive to that.”

In late December, Huffman’s DEP had put out for public comment a revised version of the general permit, this time called G35-D. The new version was simply to include the changes the air board had ordered the DEP to make. Because those didn’t include the noise and light language the board had upheld, citizen groups didn’t really pay much attention to the issue.

Huffman’s last day on the job was Jan. 13, the Friday before Justice’s inauguration, on Jan. 16. The Justice transition team announced Caperton’s appointment on Jan. 13. Caperton visited the DEP office and Huffman introduced him to some of the senior staff.

Jan. 23, a week after the inauguration, was the final day of the public comment period on the revisions to the general permit.

That day, Blankenship sent the DEP a letter on behalf of the oil and gas association. Among other things, Blankenship urged the DEP to reverse itself and get rid of the noise and light language. The letter raised the same issues the industry group brought up in its appeal before the air board.

“The West Virginia Division of Air Quality 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,” Blankenship wrote. “Even if it could, the prohibition of a ‘nuisance’ and ‘unreasonable noise and light’ 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.”

Four days later, on the morning of Jan. 27, it was the end of Caperton’s second week on the job at the DEP. Before noon, he fired Radcliff from the agency’s environmental advocate office and also dismissed Kelley Gillenwater, DEP communications director.

Later in the day, Durham signed the revised general permit, but not before removing the noise and light language. In a letter to Blankenship, the DEP said it was now the agency’s opinion that state law “does not require this permit condition” and therefore it was removed.

At 5:07 p.m. that Friday, Durham sent an email to Caperton and to DEP general counsel Kristin Boggs. “DAQ removed the noise and light provision contained in section 3.2.8 and issued the Natural Gas Compressor general permit G35-D today. It will be posted on the website Monday.”