Civil/Site

Ohio EPA’S Draft Rules for Landfills and Transfer Facilities Accepting Oil & Gas Production Waste

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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:

APPLICABILITY

  • 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.

DEFINITIONS

  • 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:
    • ROBS;
    • 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.

PROHIBITIONS

  • 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.

NOTIFICATION

  • 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.

OPERATIONAL CRITERIA

  • 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 (michelle.mountjoy@epa.ohio.gov).

QUESTIONS/CONTACT INFORMATION

If you have any questions regarding the proposed Draft Rules, please contact Ababu Gelaye at agelaye@cecinc.com or (614) 917-3247, and/or Roy Stanley at rstanley@cecinc.com or (614) 545-1260 in CEC’s Worthington, Ohio, office.

Ohio’s Draft Rules for Oil and Gas Waste Facilities

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Background

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.

Summary

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 agelaye@cecinc.com or (614) 310-2079, or Roy Stanley at rstanley@cecinc.com or (614) 425-6324.

Accelerated Remediation Catalysis (ARC) – An Emerging Water Treatment Technology for the Treatment of a Wide Range of Dissolved Phase Organic and Inorganic Contaminants

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The Accelerated Remediation Catalysis (ARC) system is a process that can be applied to reduction or oxidation. For reduction, hydrogen gas and an inexpensive, proprietary catalyst are used to perform a chemical reduction of appropriate contaminants. The application of shear forces that can be achieved by using certain pumps is also a feature that dramatically accelerates reaction times.

On the reduction side, there is data supporting the degradation of 1,4-dioxane (1,4-D), perfluorocarbons (PFCs), chlorinated hydrocarbons, and oxyanions (nitrate and perchlorate). With respect to metals and metalloids such as selenium, these species are precipitated and collected for disposal. ARC is also applicable to oxidative processes for appropriate organics like petroleum hydrocarbons, as well as metals/metalloids that precipitate under high redox conditions. In this application, the oxygen is provided by dilute hydrogen peroxide or peracetic acid with a different catalyst.

To help reduce start-up costs, the ex-situ process uses common tankage, pumps, valves, and process controls that can be obtained from standard vendors. If the process handles low levels of contaminants, it can be constructed of common thermoplastics such as polyvinyl chloride (PVC), polyethylene, and fiberglass.

ARC can operate in either batch or continuous mode. In batch mode, the reaction tank is filled at start-up and the total reaction time is allowed to reach the predetermined level to assure destruction of the constituents of concern (COCs). After this point has been achieved, the process switches to continuous mode, and the reaction tank functions as a single-stage plug flow reactor. The process can be made to be continuous at start-up by simply filling the reactor tank with clean water. The overall retention time for completion of most reactions has been on the order of 10 to 15 minutes. Using reduction, hydrogen used in the catalyst vessel is generated electrochemically at the site, reducing the need to handle compressed gas. Depending on the COC, the reaction will either cause manageable gas evolution, or precipitate out of the water and be recovered by a variety of methods. The insoluble catalyst can be recovered by filtration and recycled back to the reactor vessel.

Case studies where ARC has been used for chemical reduction include:

  • The conversion of 1,4-dioxane to ethanol. Water with 100 μg/l of 1,4-dioxane was reduced to <1 μg/l.
  • The complete destruction of perfluorocarbons to non-detectable concentrations with a fluorine residue of low concentration, as the initial concentrations of perfluorocarbons are generally low.
  • Chlorinated ethenes are easily reduced to ethene and ethane.
  • Trihalomethanes have been reduced from a typical 80 μg/l level to <10 μg/l in 10-15 minutes.
  • Perchlorate levels as high as 100 mg/l are reduced to chloride.
  • Nitrate is reduced to nitrogen gas.
  • Selenium in the form of selenate can be reduced to selenite and removed as a precipitate. Selenate was reduced from 200 mg/l to <1 mg/l.
  • Chlorobenzene at ppm levels is reduced to benzene that is then collected on the low-cost catalyst.

The ARC system can be designed for a wide range of process flow rates. Design of the system is only limited by the required retention time for the reaction. In essence, the system was brought into focus because of the emerging contaminants issue, and it is applied to pump-and-treat systems. This is important because the nature of 1,4-dioxane and PFCs makes in-situ treatment challenging. It is expected that there will be both an increase in the use of pump-and-treat systems and a need for more efficient water treatment technologies, especially since conventional methods of treatment (such as those that use carbon) are limited.

Additionally, because of the low concentrations of reactants in the process, there is typically no detectable heat gain in the reaction vessel. Therefore, cooling of the process is generally not required prior to releasing the treated effluent. Then there are other applications in traditional wastewater treatment, such as removal of selenium from scrub water at coal-fired power plants. The ARC system’s inherent simplicity allows it to be easily scaled so that dealing with the large flow rates encountered in industrial settings is feasible. While the endpoint for ARC treated water is generally to be discharged, a supplementary feature called Advanced Regenerative Process (ARP) can be added as a further polishing step so that beneficial reuse, including human consumption, is an option.

ARC targets those applications where more complicated and expensive systems, such as conventional Advanced Oxidation Processes (AOP), are being used. The chemical usage, energy, and safety features of AOP systems, combined with their operational footprint, suggest they will eventually be replaced by better remedial options like ARC. There are other developing technologies that have similar objectives to displace AOP systems, such as resin-based operations, but ARC presents distinct advantages in cost, efficacy, physical layout, and scalability.

For additional information, please contact Chris Hortert at (800) 365-2324 (chortert@cecinc.com); Steve Koenigsberg at (949) 262-3265 (skoenigsberg@cecinc.com); or Thom Zugates at (602) 644-2163 (tzugates@cecinc.com).

Revision to Minimum Standard Detail Requirements for ALTA/NSPS Land Title Surveys

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American Land Title Association® (ALTA®) and the National Society of Professional Surveyors (NSPS) have released the 2016 revision of the Minimum Standard Detail Requirements for ALTA/NSPS Land Title Surveys, effective date February 23, 2016. (The NSPS is the legal successor organization to the American Congress on Surveying and Mapping (ACSM).) This new version has replaced the 2011 Minimum Standard Detail Requirements for ALTA/ACSM Land Title Surveys.

The official redline edits to the 2011 standards are available for viewing. The redline edits formed the 2016 revision. To help you interpret the redline edits, CEC provides a marginal notation within this PDF for your convenience.

It is anticipated that the 2016 revised standards will resolve past questions and communication issues that have occurred between surveyors, title companies, clients, and lenders. As with all previous versions, the standards of the state in which the property is located may require additional items. To view the 2016 revised standards in their finalized version, click here.

Changes to Table A, Optional Survey Responsibilities and Specifications

The 2016 version will revise and clarify a number of items in Table A, Optional Survey Responsibilities and Specifications. These are the aspects that directly affect the processes of the survey companies you might engage to perform the work. Highlights of the revisions include:

  • A zoning report (Item 6) must be provided by the client before the surveyor can list or identify setback requirements, height and floor space restrictions, and parking requirements. As long as the zoning restrictions do not require interpretation by the surveyor, the surveyor will graphically show building setback requirements.
  • Parking striping (Item 9) has been clarified to specifically identify disabled spaces.
  • The 2011 standards gave two options for the location of utilities: by observed evidence (11a) and by observed evidence together with evidence of provided plans and markings combined to develop a view of the underground utilities (11b). For the 2016 standards, option 11a has been eliminated, and 11b is now identified as Item 11. Therefore, if selected, this option will require underground utilities to be depicted on the survey. It is further clarified that underground utilities shown on the survey must be considered approximate and may be incomplete as a result of the lack of response from the One Call Notification and should be noted accordingly. Since the depiction of underground utilities is now required under this option, the opening of manhole structures may be necessary to confirm underground connections in some cases.
  • The use of property (formerly Item 18) as a solid waste dump, sump, or sanitary landfill has been removed.
  • The location of wetlands (formerly Item 19, now Item 18) has been clarified to “a field delineation of wetlands conducted by a qualified specialist hired by the client.”
  • Setting survey monuments for off-site easements (formerly Item 20b) that may benefit the surveyed property has been eliminated.

A copy of the new 2016 Table A, Optional Survey Responsibilities and Specifications is provided here.

If you have any questions or would like further interpretation on any of the 2016 revisions to the ALTA survey requirements, please contact the authors, Jim Bruggeman (jbruggeman@cecinc.com) can be reached at (800) 365-2324, or Jeff Miller, Survey practice lead, at jmiller@cecinc.com; (888) 598-6808 ext. 3339.

Ohio Well Site Construction Rule Takes Effect

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Introduction/Summary

Sweeping changes are in store for the Exploration and Production Industry in Ohio with the adoption of the Ohio Horizontal Well Site Construction Rule (Rule).  The Rule, which took effect on July 16, 2015, requires that operators obtain a permit from the Ohio Department of Natural Resources (ODNR) to construct a well pad for horizontal drilling in the State of Ohio.  While similar requirements have been in place in neighboring Appalachian Basin states for several years, this is a first for Ohio.  All sites constructed or modified after the effective date of the Rule will be subject to its requirements.  Sites already under construction prior to July 16, 2015, do not require permit coverage.

What are the requirements?

The Rule serves to regulate well site construction activities from project planning through construction and site stabilization.  Requirements are specified for the permit application, supporting documents, review procedures, construction activities, permit modifications, certification, and permit transfer.

The application process will involve the completion of forms developed by ODNR and the preparation of a variety of plans and reports to characterize the well site, describe the proposed construction activity, and demonstrate the considerations made for the protection of the health, safety, and welfare of the public and the environment.  Required attachments to the application package include:

  • Detailed Site Development Drawings
  • Emergency Release Conveyance Map
  • Sediment and Erosion Control Plan
  • Well Site Boundary GIS Files
  • Dust Control Plan
  • Geotechnical Plan
  • Stormwater Hydraulic Report

Application review under the Rule consists of a completeness screening, an on-site field review, and a detailed review of the permit documents.  The Rule outlines timeframes for each stage of review and the procedure for addressing deficiencies identified by ODNR.  Following permit issuance, construction may begin following 48-hour advance notice to ODNR.  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 Rule also includes procedures for addressing permit modifications, general requirements during construction activities, requirements for certification of the constructed site, and provisions for ownership transfers.

What it means to industry

In short, the enactment of the Rule means that it will take longer and cost more to build a well pad in Ohio than it had previously.

Operators will need to account for time in their schedules to develop additional plans, conduct more extensive field investigations, and navigate the permit application, review, and certification processes.  Additional costs will be incurred for plan preparation and for management of the process.

Some of our key observations:

  • The requirement for a geotechnical investigation exceeds the requirements of similar permitting processes in neighboring Appalachian Basin states. In some cases, the specification of safety factors for slope stability and bearing capacity could restrict options based on professional judgment. The safety factor specification could result in more earthwork, more disturbed area, and additional materials and structures being needed.
  • The review process will not only add time, but also complexity to well site construction projects. Overall, the process could span from as little as 12 weeks to as many as 29 weeks. Thorough, well-organized applications and timely response to inquiries from ODNR during the review process will be essential to minimizing approval timeframes. This can only happen if the numerous disciplines involved with site planning and permit preparation are effectively coordinated.
  • Construction oversight and inspection will be important activities during construction to ensure projects are built in accordance with the approved permit materials and that modifications, if necessary, are well documented. The certification requirements included in the Rule will make this necessary to minimize the risk of encountering unexpected delays just before mobilization of drilling equipment.

Conclusion

The implementation of any new regulation results in evolving processes as grey areas and uncertainties are identified and subsequently resolved.  The Ohio Horizontal Well Site Construction Rule will be no different in this respect.  It will be important for the industry and ODNR to work together to develop an efficient process, one that will support the construction of well pads that enable safe drilling and production while protecting public health, safety, and the environment.

If you have questions about how this new regulation may affect your business, please contact Dustin Kuhlman in CEC’s headquarters office at dkuhlman@cecinc.com or by calling (412) 249-1617 or Ababu Gelaye in CEC’s Columbus office at agelaye@cecinc.com or (614) 310-2079.

Proposed Waters of U.S. Rule and Implications for Site Planning and Stormwater Management

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On April 3, The U.S. Environmental Protection Agency (EPA) and U.S. Army Corps of Engineers (Corps) submitted a proposed rulemaking for final interagency review to revise the definition of “waters of the U.S.” (WOTUS) in the Federal Clean Water Act (CWA). The revisions will affect the circumstances in which permits are needed to disturb and discharge fill material into streams, wetlands, or other waters. The EPA and the Corps jointly released the proposed rule in April 2014 and have since received almost one million public comments. The proposed WOTUS rule expands the types of waters that will be considered jurisdictional and subject to CWA permitting requirements through the use of various opinions from past Supreme Court decisions regarding the connections of drainageways and wetlands to downstream waters, as well as by proposing new WOTUS categories and definitions.

The proposed rule will allow the EPA and the Corps to assert CWA jurisdiction on a categorical and regional basis in cases where jurisdiction is currently questionable (e.g., ephemeral or discontinuous streams, isolated wetlands, and ditches), instead of requiring a case-by-case Significant Nexus Determination (SND) process. This SND process is a result of the 2006 Rapanos v. U.S. Supreme Court (Rapanos) case, which enables EPA and Corps staff to use the SND logic (or just the threat of a formal Jurisdictional Determination) to lay a de facto claim to any tributary streams or adjacent wetlands, including the uppermost extent of dry ephemeral channels and wetlands near, but lacking direct connections to, WOTUS. In most cases, when jurisdiction is in question for a project, applicants relent to the EPA and Corps opinions before the case is subjected to a SND, because the SND process can be time-consuming, cumbersome, and expensive. Therefore in practice, the new rule may have less impact on streams than on ditches, artificial drainageways, and isolated wetlands.

EPA claims that the rule would improve clarity and certainty regarding CWA jurisdiction, and stated in press releases that “confusion has led some people not to apply for permits where in fact they must” and that the rule would extend CWA jurisdiction to an additional 20 million acres of wetlands and more than half of our nation’s streams. However, the inclusion of drainageways and “other waters” into the rule on the basis of any hydrological or ecological connections, not just “significant” connections, would depart drastically from the Rapanos plurality decision that only channels with “relatively permanent” flow should be jurisdictional under the CWA.

The Ditch Issue and CWA Exemptions

Once a ditch or other area is under federal CWA jurisdiction, modifications or disturbance (including routine maintenance) may be subject to CWA Section 404 permitting requirements.  Unless the rule is revised and clarified, even constructed drainageways, swales, and similar surface flow conveyances would be considered jurisdictional unless it can be demonstrated that they are not connected to a WOTUS, and that they do not meet the definition of wetlands.  This is problematic considering that in many non-arid regions, the recently revised methodology for wetland determination makes it relatively easy to classify even very small, seasonally saturated areas with opportunistic hydrophytic vegetation as wetlands.

The rule appears to lay the burden-of-proof on the applicant to prove a feature is not jurisdictional.  Ditches are exempt from regulation under the rule and past Corps regulatory guidance letters if they: 1) are excavated in uplands, drain only uplands, and have less than perennial flow; and 2) do not contribute to flow, either directly or indirectly, to a WOTUS.  Since most ditches are constructed to collect and transport runoff to a discharge point at a stream or wetland, only ditches that are wholly disconnected from a watershed  and remain dry during most of the year are likely to qualify for these exemptions.

The original CWA also provided conditional exemptions for other activities, detailed at the links below, which are preserved with the new rule.  However, use of these exemptions can be contentious in practice and subject to case-by-case evaluation that differs based on the regulatory climate within each Corps District and EPA Region. For more information, see:

For example, many Corps reviewers have been apt to reject an exemption for “maintenance of drainage ditches” if vegetation and sediment had accumulated in a constructed channel or basin, on the rationale that this infrastructure was abandoned because of lack of routine maintenance, or if the ditch is in the vicinity of protected wildlife species habitat.  The Corps Regulatory Guidance Letter 07-02 discusses ditch maintenance exemption in more detail.

Stormwater and Green Infrastructure Jurisdictional Claims

Stormwater treatment systems and other constructed water treatment systems were traditionally not claimed by the Corps because these systems are designed and maintained to satisfy Section 402 of the CWA (regarding point and non-point discharges and NDPES permitting), thus considered impractical to be regulated as jurisdiction WOTUS under Section 404.

Recently, however, some Corps Districts have already begun claiming stormwater channels and basins on the basis that they are either not regularly maintained or convey flow to/from a wetland or stream, and are thus de facto jurisdictional tributaries.  This is a slippery slope; if the mere connection to a stream or wetland is sufficient to claim jurisdiction, rather than considerations of function and form, then most stormwater facilities could be subject to CWA Section 404 permitting requirements.

Additionally, green infrastructure (bioretention basins, rain gardens, vegetated swales, constructed wetlands, etc.) have been widely promoted by EPA and others as an effective solution for stormwater control, water quality, and other issues.  Despite appeals by many stakeholders, the EPA and the Corps have declined so far to provide an explicit exemption for green infrastructure—which may have a chilling effect on its use.

What You Can Do to Reduce Exposure to the CWA Proposed Rule

Maintain your drainage ditches…or else!  Maintain artificial drainageways by removing accumulated sediment and colonizing vegetation, and controlling fugitive runoff or seepage to prevent the area from meeting the definition of wetlands.

Retain documentation (e.g. design plans, permits, and maintenance records) for water conveyance systems, especially green infrastructure.  This documentation may be proof to refute jurisdictional claims in the future and prove that features were excavated in, and drain only, uplands.

Where possible, design drainage controls so that they are “off-line” from the local watershed, and avoid controls that channelize or detain surface flows (e.g., curb/gutter elimination, infiltration, bioretention), to reduce exposure to CWA jurisdictional claims.

Remember, even though you design a system or have a permit, the EPA and the Corps may reevaluate in the future and determine that conditions have changed and your infrastructure is now subject to regulation.

If you have questions on if/how the new WOTUS rule may affect your facility, contact Jonathan Farrell at 412-977-1456 or jfarrell@cecinc.com.   If you require assistance inspecting and maintaining your stormwater system, contact Rick Celender at (412) 249-2309 or rcelender@cecinc.com.  The EPA has established a website dedicated to public outreach at http://www2.epa.gov/cleanwaterrule.  We recommend more reading at http://www.naco.org/legislation/Pages/WOUS.aspx.

New CCR Rules Require Engineering Evaluations of Existing CCR Surface Impoundments

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Recently, the USEPA provided a prepublication copy of standards for the disposal of coal combustion residuals (CCR) in landfills and surface impoundment.  Section 257 of the federal code will be modified to include new measures covering the location, design, operation, and closure of existing and proposed CCR disposal units.

Owners of existing CCR surface impoundments will be required to provide assessments of the “structural integrity” of their facilities shortly after publication of the final rules.  Owners must obtain a certification from a qualified professional engineer stating that each of these assessments meets the requirements of the stipulated CCR regulations.

Within 18 months of publication, owners or operators of a CCR impoundment must provide the following initial engineering assessments:

Hazard Classification (§257.73(a)2) – The owner is required to document the hazard potential of the impoundment based on the potential loss of human life, economic loss, environmental damage, disruption of lifeline facilities, or other impacts resulting from failure or mis-operation.   The hazard classification uses a scale of low, high, or significant, and directly impacts spillway capacity, emergency action planning, and response requirements.

History of Construction (§257.73(c)) – The owner must compile documentation of the physical condition of the impoundment, including information on foundation and abutment soils, embankment and staging information, detailed drawings of the impoundment (including drainage and outlet structures), and normal and peak pool operating elevations.

Structural Stability Assessment (§257.73(d)) – The owner must document the adequacy of the impoundment design, construction, operation, and maintenance.  The assessment must document the condition of the impoundment foundation and abutments, slope protection, vegetation, spillway condition and capacity, and associated hydraulic structures.

Safety Factor Assessment (§257.73(e)) – The owner must document the calculated factors of safety for critical cross sections of the impoundment embankments.  The safety factor assessment must include stability calculations for operating and loading conditions (such as seismic loading) typical for dam design and construction.

These engineering assessments must be updated every five years following the initial assessment.

Within 24 months, a written Emergency Action Plan (§257.73(a) 3) must be prepared for any CCR surface impoundment classified with high or significant hazard potential.  The EAP must contain information on procedures to detect a safety emergency, define responsible persons and notification procedures, provide contact information, include a map delineating the downstream area potentially impacted by a failure, and provide for meetings between the owner and local emergency responders. The written EAP must be reevaluated, at a minimum, every five years.

Longer term (42 months after publication), owners must demonstrate that existing surface impoundments comply with location restrictions for fault areas (§257.62) and seismic impact zones (§257.63).  Facilities located within these areas will require site-specific evaluations of the performance of the facilities under seismic (earthquake) events.  These evaluations must demonstrate that all structural components (including liners, leachate collection systems, and surface water control systems) are designed to function under the impacts of maximum horizontal ground motion.  This task will include performing liquefaction, slope stability, and deformation analyses of waste, foundation, and embankment soils.

Any existing impoundment not demonstrating compliance with these requirements must cease placement of CCR and non-CCR waste streams into the unit within 6 months and commence closure operations in accordance with §257.102.

If you have questions about the proposed changes to the federal rules governing CCR disposal and the engineering assessments discussed, please contact Doug Clark (dclark@cecinc.com; 800-365-2324) or Steve Dixon (sdixon@cecinc.com; 800-365-2324). More information on the proposed rule changes is available at EPA’s website.