Public Comment on PADEP Draft Guidance for Performing Single Stationary Source Determinations for Oil and Gas Industries

The Pennsylvania Air Quality Technical Advisory Committee (AQTAC) met on Thursday June 14, 2012 at the Pennsylvania Department of Environmental Protection (PADEP or the Department) Rachel Carson building in Harrisburg, Pennsylvania.  At the meeting PADEP presented a summary of comments that they had received on their interim final technical guidance DEP ID: 270‐0810‐006 entitled Guidance for Performing Single Stationary Source Determinations for Oil and Gas Industries.  Notice of this guidance was published in the Pennsylvania Bulletin on October 22, 2011 (41 Pa.B. 5719) with a public comment period that officially closed on November 21, 2011.  PADEP reported that they had received comments from 366 commenters including the U.S. EPA, industry, the general public and environmental groups.

Industry was very concerned with how the Department will ensure that the implementation of the guidance is consistent across the various regions, and generally supported the Department’s effort to develop guidance that would create consistency and predictability relative to determinations of single stationary source PSD and NSR permitting for the oil and gas industries.  One industrial commenter requested that PADEP remove the statement that “interdependence” may be used by the DEP permit reviewers.

The U.S. EPA was concerned that the guidance did not stress the “case-by-case” nature of the applicability determinations that the Agency always cites in its determinations.  PADEP presented the following concerns as commented by the U.S. EPA:

1. That sources in Pennsylvania may be aggregated as a single source regardless of their major or minor source status.
2. They considered the “common sense notion” of a plant when developing the three‐prong test for “source” in the 1980 Preamble for NSR permitting, which has been stressed by PADEP in their guidance, but that the U.S. EPA did not include this term as a separate and distinct regulatory criteria.  Further analysis of the “common sense notion” may be instructive while evaluating the facts of a particular case but should not be given the weight of an added criterion.
3. That the meaning of “contiguous and adjacent” must be evaluated on a case‐by‐case basis, applying specific facts to the regulatory definition to determine the scope of the source.  PADEP may be able to establish a presumption that sources located within a quarter mile of each other should be aggregated to the extent that PADEP can better justify this position.
4. Disagreed with the use of the statement by the Department that facilities should not be “daisy-chained”, since the guidance document does not define what that term means.
5. Indicated that PADEP must assure that a full aggregation analysis is carried out for sources located outside the quarter mile radius.
6. Stated that the plain meaning of regulatory and non‐regulatory terms are not to be used in making source determinations.

Some public and a number of environmental groups believe PADEP was attempting to use the quarter mile “presumptive” aggregation distance as the distance beyond which aggregation determinations would not be made.  A number also expressed concern that the guidance would be used in a manner similar to regulatory provisions.

The final technical guidance documents, including the final guidance, comments received and the response to those comments are currently under development and review by PADEP’s Executive staff.  The Department will issue the final Guidance Documents by publication as a notice in the Pennsylvania Bulletin and expects this to be completed sometime this summer.