Author: Ababu Gelaye, CPESC, P.G.
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 (email@example.com).
If you have any questions regarding the proposed Draft Rules, please contact Ababu Gelaye at firstname.lastname@example.org or (614) 917-3247, and/or Roy Stanley at email@example.com 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 firstname.lastname@example.org or (614) 310-2079, or Roy Stanley at email@example.com or (614) 425-6324.
On June 3, 2016, U.S. Environmental Protection Agency (EPA) published a proposed Information Collection Request (ICR) for the oil and natural gas industry in the Federal Register for notice and comment. Once the comment period ends and EPA provides responses to all significant comments, the amended proposal will be sent to the Office of Management and Budget (OMB) for review and approval. If approved, and U.S. EPA is issued a valid OMB control number, U.S. EPA would begin collecting information from oil and natural gas companies. The Agency envisions the collection process to begin in October 2016.
The purpose of the ICR is to collect detailed information to support regulation of existing oil and natural gas stationary sources. This is in contrast with recent regulatory efforts, which have focused (primarily) on new or modified sources. The information from the proposed ICR will be used to develop a pathway for the phase-in of new standards, rather than making those standards become effective for all affected sources at once.
Based on the proposal, the ICR will be divided into two parts. The first part will be sent to all oil and natural gas operators and requires information with respect to the company and its operations. The second part requires more detailed information with respect to specific sources and could involve a significant time investment from environmental and operations teams to complete. In addition, the second part of the ICR may require information that many organizations would consider confidential. Companies with confidentiality concerns may want to involve their legal teams in this process.
Also, keep in mind that this ICR will be issued under U.S. EPA’s authority under Section 114 of the Clean Air Act. This means that the Agency has the legal authority to require all responses to the ICR be certified by a responsible official and establish a deadline for providing a response.
For those interested in reading more about the proposed ICR, the U.S. EPA has a dedicated website here. Civil & Environmental Consultants, Inc. will be following the ICR approval process closely, and plans on updating this post as events unfold. In the meantime, if you have any questions with respect to the ICR or other recent federal air pollution regulatory activity, please contact Ababu Gelaye at 888-598-6808 or firstname.lastname@example.org.