This is an update to CEC’s blog posting of February 27, 2017, that described upcoming changes to Ohio’s Bureau of Underground Storage Tank Regulations’ (BUSTR’s) rules in the Ohio Administrative Code (OAC) 1301: 7-9-01 et. seq. (https://blog.cecinc.com/2017/02/27/bustr-proposes-rule-revisions-for-ohio-usts/). Since then, the draft rules underwent additional revision and have been through review and approval of the Joint Committee on Agency Rule Review (JCARR).
The new rules were issued final on July 31, 2017, and became effective September 1, 2017. Most of the changes described in our February blog were maintained; however, there were some changes to the proposed rules – some minor, some more significant – that were incorporated into the final rules. The more significant changes include:
- Rule 02, Definitions: BUSTR did not include work on spill prevention equipment and cathodic protection in the definition of a “modification.” These activities are included under “routine maintenance or normal operational upkeep.” The definition of “free product” as used in prior rules was retained in the new 2017 rule.
- Rule 04, System Registration: A 10% late fee was added to UST registrations that are filed after June 30 of each year.
- Rule 06, Design, Construction, Installation and O&M: BUSTR retained requirements from previous rule sets pertaining to internal linings added in the field to USTs and containment systems for new dispensers. October 13, 2018, was established as the final compliance date for performing spill and overspill prevention equipment testing and walkthrough inspections. BUSTR removed the requirement to obtain a modification permit to perform a change of product, and clarified the acceptable “codes of practice” that apply to installation, modification, and repair of UST systems.
- Rule 07, Release Detection: Rule language was modified to allow owners and operators of UST systems that store fuel for use by emergency power generators to request approval of an alternative method of release detection in lieu of installing automatic line leak detectors on pressure lines. BUSTR removed requirements for a “qualified person” to evaluate automatic tank gauging equipment. Language was added that pertains to manufacturers who are no longer in business. Record retention requirements were reduced from the proposed three years to one year for sampling, testing, or monitoring, and reduced from five years to three years for calibrations, maintenance, and repair of release detection equipment.
- Rule 12, Closure Rule: The time period for actions required for UST systems that are out-of-service for more than twelve months was relaxed from 30 days to 90 days. Specifications were added for inert material used to fill a UST to have a density that is greater than the density of water. They also specified that the installation of monitoring wells was only required if groundwater is encountered around a UST system or portion of a UST system that was permanently removed, closed-in-place, or underwent a change-of-service on or after September 1, 1992, where a closure assessment was not conducted in accordance with the rules effective at that time.
- Rule 13, Corrective Action Rule: The previous definition of “free product” was retained consistent with the Rule 2 definition.
- Rule 15, Delegated Authority: A provision was added to allow a certified inspector to be employed by the owner or operator.
In our opinion, one of the more significant shifts from the 2012 rules to the 2017 rules occurred in the Corrective Action Rule (OAC 1301:7-9-13, or Rule 13) with the inclusion of additional chemicals of concern (COCs) for Analytical Group 1 – Light Distillates. Naphthalene and 1,2,4-Trimethylbenzene (1,2,4-TMB) were added to the list of aromatic hydrocarbon analyses for all release investigations. Two other chemicals, 1,2-Dibromoethane (ethylene dibromide, or EDB) and 1,2-Dichloroethane (ethylene dichloride, or EDC), were added to the list of additives. These constituents are to be analyzed only for release sites where the USTs were in service prior to January 1, 1996, and where the USTs contained aviation gasoline (“av-gas”), racing fuel, and used oil. This change in COCs will not only have implications for UST owners currently performing corrective actions, but also for former UST sites undergoing Phase II Environmental Site Assessments for property transfers.
If you would like to learn more about how the new BUSTR rules may impact your operations or if you would simply like further information, contact Brent Smith (email@example.com) or Andy McCorkle (firstname.lastname@example.org) at (614) 540-6633.
Requirements for the Final TSCA Inventory Notification (Active/Inactive) Rule – (40 CFR Part 710), published August 11, 2017
On June 22, 2016, the Frank R. Lautenberg Chemical Safety for the 21st Century Act, which amends the Toxic Substances Control Act (TSCA), was signed into law, making it the nation’s new primary chemicals management law.
According to the EPA, the new law, which received bipartisan support in both the U.S. House of Representatives and the U.S. Senate, includes much needed improvements such as:
- Mandatory requirement for EPA to evaluate existing chemicals with clear and enforceable deadlines;
- New risk-based safety standard;
- Increased public transparency for chemical information; and
- Consistent source of funding for EPA to carry out the responsibilities under the new law.
One year later, on June 22, 2017, EPA announced the required implementation activities. Those activities included finalization of a rule to require industry to report chemicals manufactured, imported, or processed in the U.S. over the past 10 years. This reporting will be used to identify which chemical substances on the TSCA Inventory are active in U.S. commerce and will help determine the chemicals EPA prioritizes for risk evaluation. Read more: https://www.epa.gov/tsca-inventory/tsca-inventory-notification-active-inactive-rule.
The Final Rule (TSCA Inventory Notification (Active/Inactive) Rule) was published on August 11, 2017. Supplier companies will have 180 days to report all chemicals manufactured or imported during the past 10-year period. (See further below for specifics applying to processing companies.) A number of chemical substances are excluded, such as naturally occurring substances, mixtures, exempt polymers, articles, R&D substances, etc. There is a section of the standard 40 CFR 710.26 outlining Chemical substances for which information is not required: https://www.epa.gov/tsca-inventory/list-active-substances-exempt-tsca-inventory-notifications-active-inactive-rule#download.
EPA has published the interim Active TSCA Inventory using reporting from the 2012 and 2016 Chemical Data Reporting cycles: https://www.epa.gov/tsca-inventory/how-access-tsca-inventory.
The regulated community is required to add all other active Chemical Abstract Service (CAS) registration numbers that were manufactured or imported during the 10-year retrospective period to the active list. Companies are responsible for identifying all chemical substances that are known or reasonably ascertainable.
Companies that are only chemical processors have an additional 240 days to review the interim Active TSCA Inventory and report any additional chemicals that may have been overlooked by their suppliers. The Notice of Activity Form A will be used for retrospective reporting and the Notice of Activity Form B will be used for forward-looking reporting. Forms will need to be submitted via the EPA’s Central Data Exchange (CDX).
Companies that fail to report are in violation of TSCA Section 15 and may be subject to penalties (40 CFR 711.1(c)).
If you would benefit from having someone examine this new Rule and how it may affect your reporting requirements for the substances you manufacture, import, or process, please contact the author, Scott K. Wilson, MS, CIH, CSP, CHMM, at email@example.com; 630-963-6026.
Are you buying a property in the city? Have you been informed that the property is being sold at a reduced rate, but were not given a reason why? Is it possible that there was a release from a facility near your property? Depending on the concentrations and site conditions, volatile substances in the subsurface could potentially result in vapor-phase intrusion of these substances into inhabited buildings at a level that poses a threat to human health.
PADEP’s updated Vapor Intrusion (VI) Guidance, entitled “Land Recycling Program Technical Guidance Manual (TGM) for Vapor Intrusion into Buildings from Groundwater and Soil under Act 2,” became effective January 18, 2017. The TGM provides guidance for implementing the Pennsylvania Code Chapter 250 regulations (Pennsylvania’s Voluntary Cleanup Program, commonly known as Act 2). As a property owner (referred to as “remediator” in the TGM), you will be expected to implement the new VI Guidance in order to satisfy the requirements of Act 2 for any Act 2 reports submitted after January 18,2017.
The VI Guidance outlines significant changes to the process for addressing VI that include new/clarified key terms and more options to comply with the Act 2 Statewide Health and Site-Specific Standards. Some benefits of the new VI Guidance include separate approaches for petroleum versus non-petroleum constituents, additional alternative assessment options (near-source and sub-slab soil gas screenings), and details regarding addressing VI under the Act 2 Site-Specific Standard.
In general, the VI assessment process under the new VI Guidance initially includes development of a Conceptual Site Model (CSM) and delineation of concentrations of soil and groundwater constituents, followed by screening of potential VI sources via identification of preferential pathways and application of proximity distances as described in the TGM.
Mitigation (elimination of the complete pathway between the contamination source and the receptor) may be used at any time during the process, and it can be used in lieu of a complete evaluation of the VI pathway.
The remediator chooses from the following options if potential VI sources are identified: (1) alternative VI assessment options (near-source soil gas screening, sub-slab soil gas screening, indoor air screening, or VI modeling); (2) mitigation with an Environmental Covenant; (3) remediation and re-evaluation of the VI pathway; or (4) selection of the Act 2 Site-Specific Standard.
Some of the new/clarified terminology in the VI Guidance that may be important to consider during your building design phase and/or when evaluating existing on-site buildings include Potential VI Source, Preferential Pathway, External Preferential Pathway, Significant Foundation Opening (SFO), Point of Application (POA), and Proximity Distance.
Preferential pathways considered in consort with POA and proximity distance as it relates to the horizontal and vertical location of the potential VI source could be utilized to address potential VI when siting and designing future buildings at the site. When identified, SFOs in existing buildings at the site could be sealed to inhibit vapor entry. Depending on your proposed plans, mitigation may be a more favorable option for your particular scenario with regards to schedule.
PADEP’s new VI Guidance provides a more-detailed process for satisfying Act 2 requirements and additional options for addressing VI to those who wish to obtain a release of environmental liability from the PADEP. Understanding how to apply the process and evaluate options could possibly save you time and/or money.
Please contact Jennifer A. Ewing, P.G., (firstname.lastname@example.org) or Mary A. King, P.G., (email@example.com) at 800-365-2324 if you have any questions about the new VI Guidance and how it may influence an upcoming project, or about Act 2 in general.
Ohio EPA’s new Multi-Sector General Permit (MSGP) for Industrial Stormwater Discharges (Ohio EPA (OEPA) General Permit Number OHR000006) was issued final on May 8, 2017. The effective date of the permit is June 1, 2017. OEPA’s fifth-generation MSGP (OHR000005) expired on December 31, 2016, and its replacement has incorporated changes that clarify allowances and exceptions and ensure that Ohio’s MSGP is consistent with its U.S. EPA counterpart. This post describes some important dates for associated submittals and summarizes new provisions of the permit.
Companies with facilities currently covered by OHR000005 should expect to receive a letter from OEPA in the next few weeks. No action is required of current permit holders until this letter is received.
Important dates to keep in mind:
- Effective permit date: June 1, 2017
- Permit expiration date: May 31, 2022
- Notice of Intent (NOI) submittal deadline date for existing permit holders: within 90 days of the OEPA’s written instructions (letter) to re-notify. Per Jason Fyffe, Supervisor, OEPA Central Office Stormwater Permitting, renewal letters will be mailed late the week of May 22, at the earliest.
- Stormwater Pollution Prevention Plan (SWPPP) update timeframe for existing permit holders: within 180 days of the effective date of the permit (i.e., November 28, 2017)
- Facilities not covered under a prior NPDES permit (new dischargers) must prepare a SWPPP prior to submitting an NOI. NOIs for new dischargers are to be submitted at least 180 days prior to discharge.
It is important to note that as of February 1, 2017, OEPA has instituted an all-electronic NOI filing policy, and facilities must use eBusiness to prepare and submit the form. If you prefer, the NPDES application utility (Surface Water Tracking, Reporting, and Electronic Application Management System or STREAMS) allows consultants to prepare the NOIs on behalf of their clients and delegate the forms to the appropriate individual for electronic signature and final submittal. CEC can assist you with this matter. Online payment is also available.
Notable changes to the current MSGP compared to OHR000005 include the following:
- Clarifying language was added that defines conditions when pavement wash waters and routine external building washdown are an allowable non-stormwater discharge authorized by the permit. MSGP Part 1.1.3.
- A list of the stormwater discharges subject to effluent limitation guidelines under 40 CFR, Subchapter N that are not eligible for coverage under the general permit and would require authorization to discharge under an individual NPDES permit is now included in MSGP Part 184.108.40.206.
- A reduction in required frequency for routine facility inspections and quarterly visual assessments is now allowed for facilities recognized under the Gold and Platinum levels by OEPA’s Encouraging Environmental Excellence (E3) Program. MSGP Parts 4.1.3 and 4.2.3.
- The requirement for a comprehensive annual site inspection has been eliminated in order to match the U.S. MSGP and to “eliminate redundancies and reduce burden” on facilities. The requirement for routine facility inspection remains, and required procedures are listed in MSGP Part 4.1.1 (no change from OHR000005).
- Language has been added to clarify that documents incorporated into the SWPPP by reference may be maintained on site electronically (i.e., satisfies “available on site” requirement). MSGP Part 220.127.116.11.
- Permittees are now required to make their SWPPP available to the public when requested, excluding any confidential or restricted business information. MSGP Part 5.3.
- Language has been added to clarify that, for monitoring purposes, an outfall can include a discrete conveyance (i.e., pipe, ditch, channel, tunnel, or conduit) or a location where sheet flow leaves the facility property. MSGP Part 6.1.1.
- Language has been added to clarify that permittees obtaining coverage in years 4 and 5 of the general permit must complete benchmark monitoring requirements to the extent of remaining monitoring periods available before the general permit expires. (Permittees obtaining coverage before this time are to complete the benchmark monitoring requirements within the first three years of permit coverage. This has not changed from OHR000005.) MSGP Part 18.104.22.168.
- Provisions have been added for permittees who are exceeding a benchmark due to neighboring facility run-on to account for this situation. MSGP Part 22.214.171.124.
- Provisions have been added for a facility to default to a different benchmark value if a parameter’s water quality standard is less restrictive than the permit benchmark value. MSGP Part 126.96.36.199.
- Provisions have been added for permittees to consider pollutant concentrations (contributions) from the facility structures (roofs, walls, fencing, etc.) when determining whether it is available, practical, and achievable to implement additional control measures when a benchmark has been exceeded. MSGP Part 188.8.131.52.
- The annual report requirements have been revised to be consistent with the federal MSGP. (The frequency and recordkeeping requirements have remained the same.) MSGP Part 7.2 and Appendix I.
- Language has been added to clarify that the discharge of leachate (defined in OAC 3745-27-01(L)(1)) is not authorized under the MSGP. MSGP Part 8.C.2.1.
- Composting fertilizer mixing facilities (SIC 2875) have been removed from Subsector C1 and located in a newly created Subsector C6, which provides more appropriate benchmark monitoring parameters for this industry. Table 8.C-1 and Appendix D to Sector C have been revised to specify that SIC 2875 (non-composting fertilizer mixing facilities) will be subject to Subsector C1 and SIC 2875 (composting fertilizer mixing facilities) will be subject to Subsector C6.
- Language was added to Sector N (Scrap Recycling Facilities) to clarify that references to secondary containment under this part are referencing stationary outdoor equipment and not mobile equipment. MSGP Part 8.N.3.1.7.
- Marinas have been added to Sector Q (Water Transportation) of the MSGP. The current OEPA Marina stormwater general permit (OHRM00002) expires on January 21, 2018, and will not be renewed. Marinas with coverage under OHRM00002 will remain covered under that general permit until it expires, and at that time, will be instructed to renew their coverage under OHR000006. NOTE: the current Marina Stormwater general permit authorizes the discharge of boat wash water if no detergents or other chemical cleaning agents are used. OHR000006 does not authorize boat wash water. Such discharges would require proper collection and disposal (i.e., sanitary sewer) or be permitted by a separate NPDES permit. MSGP Part 8, Subpart Q – Sector Q
- Appendix B, “Standard Permit Conditions,” has been updated to reflect the “Standard Permit Conditions” language found within OEPA general permits.
For additional information regarding OHR000006, including fact sheets and a copy of the permit, visit OEPA’s Industrial Stormwater General Permit website.
If you have any questions on how the requirements of OHR000006 may affect your facility, or if you would like assistance with NOI submittal and/or updating the SWPPP for your facility, contact Amy Ritts (firstname.lastname@example.org) or Andy McCorkle (email@example.com).
MiProbe Environmental Sensing Technology for the Continuous Real-Time Management of Redox, Microbial Degradation Rates, and Metabolic Gases
CEC has collaborated with Burge Environmental of Tempe, Arizona, in the development and deployment of a sensor system called MiProbe that was supported by a series of grants from the U.S. Department of Energy.
The sensor is part of a full package of environmental sensors and data management tools that incorporates telemetry, the Cloud, and computer-generated graphics to bring the dynamics of contaminated site management to life. The system is unique in many ways, but one feature that makes it truly special is its use of biofilm as the sensor itself. The sensor also has a metabolic gas capture capability that gives it a second level of application in line with the current interest in Natural Source Zone Depletion (NSZD). Taken separately, the system’s features include:
Microbial Sensing Capabilities
The microbes and the associated electrode-support structure comprise a revolutionary redox sensor that is both instantaneous in reporting to the Cloud and robust to the point where, for all practical purposes, it has an operational life of several years.
A brief explanation of how it works: a biofilm/electrode combination with associated circuitry generates a steady-state voltage that is held by the electrode, noting that every redox state has an associated voltage. For example, the voltage is highest in an anaerobic environment, but it drops upon the encroachment of aerobic conditions because electrons are drawn away; this change is then recorded and transmitted. The system can work in reverse with voltages rising as anaerobic conditions develop. The sensor data may allow for better management and cost control associated with use of reagent applications (e.g. for providing oxidizing or reducing conditions in the subsurface).
It is also possible to understand the metabolic turnover rate in the environment. Based on the voltage output for the sensor (turning it on and off via remote control and allowing the voltage to drain and recover), a rate of substrate consumption can be calculated. This then factors into natural attenuation petitions or the progress of remedial intervention with oxidative or reductive processes as noted.
Metabolic Gas Capture Capabilities
The application targets a growing interest in documenting NSZD as a means of more enlightened management of complex sites with non-aqueous phase liquids (NAPLs). At present, the focus is on Light NAPLs (LNAPLs) like petroleum hydrocarbons. Depending on the subsurface conditions, LNAPLs will naturally attenuate through aerobic and anaerobic pathways while generating carbon dioxide and methane as metabolic gas end products. Capturing representative samples of these metabolic gases can be useful in calculating the Time of Remediation (TOR) of palpable contaminant masses in the subsurface. Of course, overlaying intervention activities such as oxidants or temperature inputs on this process can accelerate the TOR, and this will be recorded.
Other Applications and Features
Because MiProbe is sensitive to microbial activity, it can detect an uptick in electron flow as a function of a change in substrate availability. This would manifest when, for example, a dissolved-phase hydrocarbon plume impacts the sensor, which has major applications in managing UST sites or accidental releases. Conversely, a lack of electron flow could indicate a lack of bioavailability of contaminants.
The bioavailability application is important in sediments work in support of Monitored Natural Recovery (MNR) strategies. In effect, if a contaminant is unavailable, a case can be made for limited environmental impacts. Additional sediment and landfill management applications include the use of the redox sensor components to allow for characterization and modeling of the water exchanges between capped sediments or landfills and surrounding sources of water. Applications for ecological monitoring are also of interest and are ripe for further exploration by interested parties.
All of these analytical results have been obtained with extremely high reproducibility. The MiProbe system can be deployed several ways, including direct insertion into the subsurface or into monitoring wells, or as part of a floating deployment configuration. Also, the system is solar powered with real-time data transmitted using either cellular or satellite communications. In locations where communications are difficult, a data logging option is available.
This information on the MiProbe System is also available as a downloadable brochure on the Environmental Site Investigation and Remediation page of CEC’s website: http://www.cecinc.com/enviro_site_redevelopment.html.
The Ohio Environmental Protection Agency (EPA) Division of Materials and Waste Management (DMWM) is in the process of finalizing rules, under OAC 3745-515 (Draft Rules), for the disposal of oil and gas (O&G) production waste, specifically for the receipt, acceptance, processing, handling, management, and disposal of radioactive material, including technologically enhanced naturally occurring radioactive material (TENORM). The official title of the regulation is “Oil and Gas Production Waste Rules,” and a summary of the Draft Rules is as follows:
- Applicable to sanitary landfills and solid waste transfer facilities subject to OAC 3745-27 (municipal solid waste regulations) and 3745-29 (industrial waste regulations).
- Excluded from the Draft Rules are:
- Residual waste landfills;
- O&G production operations (including temporary storage adjacent to point of origination);
- Re-used material from horizontal wells;
- Injection well sites; and
- Material that is not TENORM and has not contacted refined oil-based substances (ROBS).
- If TENORM or ROBS are comingled with other drilling operation material, the mixed material is subject to the Draft Rules.
- The Draft Rules do not limit applicability under Ohio Revised Code (ORC) statutes in Chapters 1509 (O&G), 3734 (solid and hazardous waste), and 3748 (radiation control).
- It should be noted that although Ohio Department of Natural Resources (ODNR) has sole and exclusive authority to regulate the permitting, location, spacing, and related O&G activities in Ohio, Ohio EPA also has regulatory authority for sanitary landfills and solid waste transfer facilities that accept and process O&G production wastes.
- In addition, the Ohio Department of Health (ODH) Bureau of Environmental Health and Radiation Protection (BEHRP) provides guidance for field scanning, sampling, and laboratory testing for Ra-226/228, which Ohio EPA is adopting under the Draft Rules.
- Drilling operation material (DOM) means material that results from drilling operations, including waste substances from exploration, development, stimulation, operations, or plugging, and TENORM associated with an injection well.
- DOM is considered a solid waste.
- Source-separated drill cuttings generated while advancing through the underground source of drinking water are not DOM.
- TENORM is defined by reference to ORC 3748.01 and does not include drill cuttings with de minimus liquids; however, there are additions to the ORC 3748.01 definition, including:
- Used frac sands;
- Tank bottoms;
- Pipe scale;
- Used injection-well filter media; and
- TENORM mixed with other materials.
- For comparison, TENORM defined in ODNR’s Draft O&G Facility Rules also includes seven (7) “add-ons” to the ORC 3748.01 definition that are similar to those proposed by Ohio EPA above.
- Drill cuttings, drilling operation, and horizontal well have the same meaning as the ORC definitions.
- The Draft Rule definitions do not override OAC 3745-500-02 (Ohio EPA General Administration definitions).
INCORPORATED BY REFERENCE
- The “Solid Waste Disposal Facility Radioactive Material Detection Program” (amended June 14, 2016) issued by ODH BEHRP is incorporated by reference.
- Sanitary landfills and solid waste transfer facilities cannot:
- Accept TENORM with Ra-226/228 greater than five (5) pCi/g above background concentration (non-exempt TENORM) without authorization from ODH BEHRP. In Ohio, background concentration is considered to be two (2) pCi/g, making the threshold seven (7) pCi/g.
- Accept DOM that has not been stabilized with material other than Portland cement or quicklime or anther material authorized by ODNR under ORC Chapter 1509.
- Accept DOM that is bulk liquids or sludges without authorization from ODNR under ORC Chapter 1509 and shall not commingle solid waste or any other material not authorized in the Draft Rule during the solidification process.
RESOLUTION OF CONFLICTS AMONG AUTHORITIES
- Compliance with the Draft Rule is required when there is conflict with another authorizing document.
- Compliance with an Order is required when there is conflict with the Draft Rule. Once the Order is terminated or ceased, compliance with the Draft Rule is required.
- The Draft Rule shall not infringe upon ODH BEHRP authority statute, including issuing orders, inspections, and enforcement standards.
PERMIT TO INSTALL (PTI)
- Sanitary landfills and solid waste transfer facilities shall obtain a permit from Ohio EPA to accept and process non-exempt TENORM under the solid waste (OAC 3745-27) and industrial waste (OAC 3745-29) regulations.
- A permit to install (PTI) from Ohio EPA is required prior to construction of sanitary landfills and solid waste transfer facilities to process DOM and/or TENORM.
- Sanitary landfills and solid waste transfer facilities are required to have authorization for DOM transfer or disposal from ODH BEHRP.
- If not accepting DOM upon the effective date of the Draft Rule, a notice of intent to Ohio EPA is required.
- If already accepting DOM, a notice of intent to continue accepting DOM is required within 30 days following the effective date of the Draft Rule.
- Sanitary landfills and solid waste transfer facilities cannot accept non-exempt TENORM until Ohio EPA approves any required modification to the facility PTI.
- Implementation of a written radiation protection and detection program is required.
- Analysis for Ra-226/228 is required for TENORM material.
- A daily log is required documenting the waste type and amount received.
- Leachate will be tested for Ra-226/228 annually.
- Groundwater monitoring wells will be tested for Ra-226/228 semi-annually.
- State disposal fees will be levied on DOM.
PROHIBITED MATERIALS – RADIATION PROTECTION PROGRAM
The radiation protection program shall include:
- Implementation of the written radiation protection plan.
- Monitoring of incoming waste with radiation portal monitors (RPMs).
- Pre-acceptance screening procedures that include:
- Identification of sources;
- Generator profiles;
- Well pad name and location;
- DOM description;
- Processes used to remove fluids and stabilization agents used;
- Procedures for the collection of representative samples;
- Procedures for pre-acceptance screening, acceptance, and record keeping;
- Refusal of material procedures; and
- Detections by RPMs require laboratory testing and must be below non-exempt Ra-226/228 concentrations prior to disposal.
COMMENTS ON THE DRAFT RULES
Ohio EPA is accepting comments from stakeholders regarding the Draft Rules until May 12, 2017. Comments may be submitted to Michelle Mountjoy (firstname.lastname@example.org).
If you have any questions regarding the proposed Draft Rules, please contact Ababu Gelaye at email@example.com or (614) 917-3247, and/or Roy Stanley at firstname.lastname@example.org or (614) 545-1260 in CEC’s Worthington, Ohio, office.
Significant changes are on the way for oil and gas waste management facilities in Ohio with the upcoming Oil and Gas Waste Facilities Rules (Draft Rules, OAC 1501:9-X, revised 12/9/16). Oil and gas waste facilities, as currently defined in the Draft Rules, are operations that store, recycle, treat, or process brine and other waste substances associated with oil and gas exploration and production operations but are not part of well operations that are otherwise permitted by Ohio Department of Natural Resources’ (ODNR’s) Division of Oil and Gas Resources Management (such as a production well or Class II brine disposal well). The purpose of these Draft Rules will be to prevent injury or damage to public health, safety, and the environment and to ensure that brine and other waste substances are properly managed and disposed. The Draft Rules include definitions for oil and gas waste substances, treatment, recycling, storage, repurposing, stabilization, and processing. While the statutory definition of Technologically Enhanced Naturally Occurring Radioactive Material (TENORM) is retained, the Draft Rules appear to expand TENORM materials to include seven (7) specific waste types. The Draft Rules also require that the permit applicant shall be responsible for all utility connections of the facility. ODNR issued the Draft Rules asking that written comments from the industry be submitted by January 20, 2017, and held an industry meeting on January 30, 2017.
Until the Draft Rules are finalized, such facilities have been granted temporary authorization via a Chief’s Order from ODNR. At this point, it is not known as to when these Draft Rules will be final and effective; however, oil and gas waste facilities that currently have a Chief’s Order will be required to re-submit a permit to construct and/or a permit to operate once the Oil and Gas Waste Facilities Rules are promulgated. Constructed/operating facilities will be required to meet the location restrictions and construction specifications in the final rules.
Are the Draft Rules Requirements Similar to the Ohio Horizontal Well Site Construction Rule?
The Draft Rules are very similar to the Ohio Horizontal Well Site Construction Rule with respect to surface location and siting criteria, permit application/form and supporting documents, review procedures, construction activities, permit modifications, and certification. A significant difference is the definition of secondary containment, including tanks, vessels, berms, dikes, pipes, liners, vaults, curbing, drip pans, sumps, etc. The definition of material modification is equivalent to the definition in the Ohio Horizontal Well Site Construction Rule with the exception of substituting the name “Oil and Gas Waste Facility” for “Horizontal Well Site” and “Oil and Gas Waste Facility Boundary” with “Well Site Boundary.” The Draft Rules outline processes for permit modifications, requirements during construction activities, and construction certification, all of which are similar to requirements in the Ohio Horizontal Well Site Construction Rule.
The following exhibits will be required with the applications:
- Design and construction drawings,
- Containment integrity document,
- Emergency release conveyance map,
- Stormwater hydraulic report,
- Sediment and erosion control plan,
- Geotechnical report/plan,
- Oil and gas waste facility boundary GIS files, and
- Dust control plan.
These exhibit requirements are very similar to the requirements stipulated under the Ohio Horizontal Well Site Construction Rule, with the exception of the Containment Integrity requirement in the Draft Rules.
What Does the Oil and Gas Waste Facility Permitting Process Look Like Under the Draft Rules?
The permit application process will require the completion of a Permit to Construct (PTC) and a Permit to Operate (PTO). The Draft Rules state that the permits are not transferable and are issued only for a specific location. Thus, mobile facilities cannot be permitted in the current version of the Draft Rules. Application forms, prescribed by ODNR, will require specific facility and/or owner/industry information. Completeness and pre-construction site review time frames are also outlined, and those may take between fifty (50) and seventy (70) business days under normal circumstances.
One of the most contentious components of the Draft Rules is the public notice requirement once the permit application is deemed complete. Written objections to the permit application, if deemed relevant by ODNR, will require a public hearing. The Draft Rules stipulate that ODNR’s Division of Oil and Gas Resources Management provide public notice of the application by posting the application on the division’s website. The question regarding this public notice requirement has to do with its timing and/or its order with respect to the Technical Review Procedure (i.e., whether it is appropriate for the public notice to happen before Technical Review is completed).
A pre-construction site review will be completed by ODNR within fifteen (15) days of notification of a complete PTC application. ODNR is required to complete its technical review of the PTC application within 60 days following the completion of the public notice process. The PTO application will be reviewed within 60 days following the pre-construction site review.
The permittee shall notify ODNR at least forty-eight (48) hours prior to commencement of construction, following permit issuance. Red-line drawings must be kept on site to document deviations from the approved plans, and inspection and maintenance activities must be performed to demonstrate compliance.
The Draft Rules outline processes for addressing permit modifications, requirements during construction activities, and requirements for certification of the constructed site to be operated, similar to what are included in the Ohio Horizontal Well Site Construction Rule.
No later than two (2) years after the effective date of the PTC, the permittee is required to submit a signed and sealed certification from the Ohio-registered professional engineer to ODNR, certifying that the oil and gas waste facility was constructed in reasonably close conformity with the approved application and documented modifications.
What are the Impacts and Implications?
Obviously, finalization and implementation of the Draft Rules will result in higher costs for permitting, construction, and operation of oil and gas waste facilities in Ohio due to increased regulatory requirements.
Oil and gas waste facility owners/operators will need to plan longer lead-times for site selection, plan development, field investigations, and compliance with the permitting, construction, and operation requirements. Increased costs for oil and gas waste facility permits, construction, and operations will likely trickle down through the Exploration and Production industry.
Clear and timely communication and clarifications to ODNR inquiries, along with well-structured and assembled plan sets and application materials will all be critical to navigating the permitting and review process and in securing permits to construct and operate oil and gas waste facilities.
Implementation of an effective construction quality assurance and quality control (QA/QC) program will be critical for facility construction in accordance with the permit conditions, site design plans, and specifications. The Draft Rules also require that all modifications (material or application) are well documented and communicated with ODNR.
Critical Items Requiring Further Consideration:
- The baseline environmental assessment, containment integrity, dust control plan, and geotechnical investigation requirements are more prescriptive than requirements in West Virginia and Pennsylvania rules for similar facilities.
- There is no distinction in the factors of safety requirements for slope stability between cut slope and fill slope. The Draft Rules require the same factor of safety of 1.5 for both types of slopes and a factor of safety for bearing capacity of not less than 3.0. These restrictive factors of safety and bearing capacity requirements are likely to increase the effort and costs for site selection, limiting the options for site development.
- The application and technical review procedures will extend the time frame for permitting, design, construction, and operation of oil and gas waste facilities. The overall permitting process could range from ten (10) weeks to as many as nineteen (19) weeks, depending on relevant objections during the public notification process.
Promulgation and execution of Oil and Gas Waste Facilities Rules will result in additional procedures and requirements for the Oil and Gas industry. The rules will not address all site-specific design, construction, and operational issues; thus, anticipation of permitting issues and optional solutions must be effectively communicated to the owner for a complete and compliant permit application. The planning and permitting process will require assembling effective and well-coordinated environmental, ecological, civil/geotechnical engineering, and land surveying teams. During the ODNR rule-making process, CEC will continue to be actively involved, representing industry and stakeholder concerns.
If you have any questions or concerns regarding how these Draft Rules may affect your business, please contact Ababu Gelaye at email@example.com or (614) 310-2079, or Roy Stanley at firstname.lastname@example.org or (614) 425-6324.