905R79012
i
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
BEFORE THE
U. S. ENVIRONMENTAL PROTECTION AGENCY
x
In the Matter of:
PUBLIC HEARING - PROPOSED
CONSOLIDATED PERMIT REGULATIONS
North Ballroom
North Park Inn
Dallas, Texas
Tuesday, July 17, 1979
Wednesday, July 13, 1079
Met, pursuant to adjournment, at 9:00 a.m
BEFORE :
ALAN ECXERT, Chairman
Attorney
Office of General Counsel
Environmental Protection Agency
Washington, D. C. 20460
PANEL :
DAVID SCHNAPF
Attorney
Permits Division
Environmental Protection Agency
Washington, D. C. 20460
HEATHER STRUCK
Attorney
Permits Division
Environmental Protection Agency
Washington, D. C. 20460
JIM UEIGOLD
Chief
New Source Review Office
Environmental Protection Agency
Research Triangle Park, North Carolina
-------
1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
1,: (continued)
ALAN LEVIN
Director
State Programs Division
Office of Drinking Water
Environmental Protection Agency
Washington, D. C. 20460
PAUL 3ALTAY
Deputy Director
State Programs Division
Office cf Drinking Water
Earlrrn-i.ital Protection Agency
•733hi.iyton, D.C. 20460
F^Al-I PETERSON
Environmental Protection Specialist
Aquatic Protection Branch
Office of Criteria and Standards
Environmental Protection Agency
Washington, D. C. 20460
D?.. JOHN ST
-------
1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
INDEX
STATEMENT 3Y
A. W. Dillard
President
Pernian Basin Petroleum Association
Francis C. Wilson, II
Chairman, Environment & Safety Committee
Independent Petroleum Association of America
Richard L. Stamets
Technical Support Chief
New Mexico Oil Conservation Division
George A. Anderson
Manager, Forest Improvement Department
Brunswick Pulp Land Company
Joseph Crockett
Manager of Forest Technology
Westvaco
Paul Seals
Assistant General Counsel
Texas Department of Water Resources
Robert Silvus
Head, Industrial Waste Water Unit
Texas Department of Water Resources
Dr. James Miller
Assistant Director of Environmental Affairs
Freeport Minerals Company
• testifying on behalf of
American Mining Congress
Committee on Underground Injection
Control Regulations
John Robinson .
Manager, Environmental Services
Kirby Forest Industries, Inc.
M. C. White
Manager, Forest Environment
International Paper Company
PAGE NO.
24
43
52
83
88
93
102
110
123
123
25
-------
•
1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
STATEMENT BY;
Charles Farmer .
Petroleum Engineer
Wyoming Oil and Gas Commission
William Deville
Special Assistant to Secretary's Office
Louisiana Department of Natural Resources
T. E. Griffith
Professional Engineer and Consumer
Jeff T. Eughes, Jr.
Louisiana Forestry Association
C. Michael Harbordt
Director, Environmental Affairs
Temple-Easte:c Incorporated
Ken Hanby
Assistant Supervisor
Alabama Oil and Gas Board
Karen Shewbart
Texas Chemical Council
D. V. True
Pollution Control Manager
City Service Company
'PAGE I JO.
132
139
149
150
157
ISO
201
215
-------
TUESDAY MORNING SESSION ••
2 . 9 :0 0 a. m.
3 • MR. ECKERT: Come to order, please.
4 Good morning. My name is Alan Eckert. I'm the
5 Deputy Associate General Counsel for Permits at EPA Head-
quarters in Washington, D. C.
This is the hearing to consider the consolidated
permitting regulations which were published in the FEDERAL
9 REGISTER on June 14, 1979.
10 I'd like to introduce—to begin this morning's
session—the Deputy Regional Administrator for EPA's Regional
12 Office, Region VI, Fran Phillips.
13 Fran.
14 MS. PHILLIPS: Thank you.
15 Good morning, and welcome to Dallas, for those
16 of you who were not here with us yesterday. For those of
17 you who were with us yesterday, I hope you had a pleasant
18 evening.
19 First of all, I'd like to start out with a cor-
20 rection. I am the recently appointed Assistant Regional
21 Administrator in Dallas, not the Deputy Regional Administrate:
22 I am here on behalf of Ms. Adelene Harrison, the
23 Regional Administrator, who, unfortunately, was not able to
24 be with us this morning.
25 Today's public hearing covers two parts of EPA's
-------
1 recent initiative to streamline and consolidate the" permit
2 programs. •
3 The proposed consolidated permit regulations and
4 grant permit application materials were published for public
5 comment in Parts II and III of the June 14, 1979 FEDERAL
6 REGISTER.
7 Part II of the June 14, 1979 FEDERAL REGISTER con-
8 tains proposed consolidated permit regulations covering five
9 EPA permit programs, the hazardous waste management program
10 under the Resource, Conservation and Recovery Act, the under-
11 ground injection control program under the Safe Drinking
12 Water Act, the national pollutant discharge elimination act
13 systems program under the Clean Water Act, State Section 404
14 programs under the Clean Water Act and prevention of signi-
15 ficant deterioration program under the Clean Air Act.
16 Part III contains draft permit application forms,
17 instructions and accompanying proposed regulations covering
18 the NPDES permit program and the hazardous waste management
19 program, an umbrella permit application form to collect
20 standard information required under eight EPA permit pro-
21 grams.
22 This umbrella form will be accompanied by program
23 specific attachment forms to collect information for each
24 individual permit program. The umbrella form and attachment
25 forms for the IIPDES and RCRA permit programs were published
-------
1 for comment on June 14 as the consolidated permit r-egs.
2 Additional attachment forms for other programs will
3 be drafted later on this year and in early 1930.
4 The June 14 FEDERAL REGISTER represents the first
5 product of EPA's efforts to streamline the permit program to
6 remove the inefficiencies and excess costs. This endeavor
7 was highlighted at President Carter's 1979 State of the Union
8 message.
9 And I quote, "The nation's investment in environ-
10 mental clean-up must have the incentives and flexibility to
11 allow our most important environmental goals to be achieved
12 at the lowest cost. Unnecessary requirements which cause
13 delays and increase costs will be removed. EPA will simplify
14 and consolidate its permit programs to reduce paperwork, red
15 tape and delays", this being similar to the recent announce-
16 ment of the Energy Production Board whose major message also
17 is to reduce red tape and delays.
18 And I think it's significant that when the Presi-
19 dent did announce the creation of this Board, he did not an-
20 nounce a change in the standard, but just a change in the pro-
21 cess.
22 And I think that if we can accomplish anything at
23 the public hearing and as an effort here today, if we can
24 change the process to be more responsive to your needs and to
25 our needs and cut through some of this red tape, then we will
-------
1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
have accomplished something. I put that as our goal for our
meeting today. '
In addition, these regulations and application
materials are important for a number of other reasons. They
establish uniform requirements wherever possible for each of
the five programs.
Permits will be processed according to a standard
permit issuance process that follows the same steps for any
kind of permit. A standard permit application will be used
to initiate this process.
The regulations have also enabled us to clarify and
address various overlaps or conflicts among the programs.
In addition, these regulations provide the basics for con-
solidating both the timing and review of multiple permits
that are required for the same facility.
Let_me jggintout that this consolidated review of
all permits for the same facility is not required by the
regulations. This is because of the many differences in the
timing of implementation of the five covered programs and
because of the difficulties in coordinating permit review
where the state operates the program.
But, significantly, the regulations do provide a
process for combining review permits and consolidating EPA's
permit issuance procedures where such consolidation is ap-
orooriate.
-------
1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
We do anticipate a number of benefits froft these
regulations. In the area of environment! benefits, v;e expect
that consolidation of the permit programs will result in a
more comprehensive management and control of waste and
elimination of overall program gaps in management.
Secondly, as an economic benefit to our permit
scheme, we expect that by increasing coordination among EPA's
permit programs, we will avoid and prevent overlapping or
inconsistent control imposed by different programs on acti-
vities of the regulated community or regulated industry.
Thirdly, in the application form and uniform prograr
regulations, it should provide a greater predictability, re-
duce paperwork and greater consistency among the EPA pro-
grams .
We are also planning to provide, where possible, a
single point of contact within the Agency for the processing
of permits. This should expedite the permit issuance process
particularly when an applicant may require multiple EPA per-
mits .
And, lastly, the resource benefits. Even though we
are into a process of implementing new permit activities
which will require additional resources to issue permits, we
expect that the consolidation will hold down the increase in
resources which would otherwise be needed to implement sepa-
rate programs on a consolidated basis.
-------
O
1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
10
f
EPA13 consolidated1, permits initiative is an innova-
tive and challenging effort which I think can benefit all
of us. Your comments and suggestions on the June 14 package
can assist us greatly in making this effort a working reality.
The 90-day comment period on the consolidated pernit
regulations and the application materials is open until
September 12, 1979. As you can tell, we're making an official
transcript of this hearing for the record.
In addition, any other written comments or any writ-
ten comments may be submitted by writing to Edward Kramer,
K-r-a-m-e-r, Office of Water Enforcement. And the mail code
there is EN-336. Environmental Protection Agency, 401 "M"
Street, Southwest, Washington, D. C. 20460.
Thank you.
MR. ECKERT: Thank you, Fran.
Now, before we go on, I'd like to introduce the
members of the panel this morning.
Starting from my far right we have John Skinner
who's the Director of the State Programs, Office of Solid
Waste, Washington, D. C.
Sam Morekas, who is the Program Manager, Hazardous
Waste State Program, Office of Solid Waste.
Fran Peterson, Environmental Protection Specialist,
Aquatic Protection Branch, Office of Criteria and Standards,
Washington, D. C.
-------
11
1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
Jim Weigold, Chief, New Source Review Office,
•
Environmental Protection Agency, Research Triangle Park,
North Carolina.
You've met Fran Phillips, to my immediate right.
To my left is Al Davis, Director, Air and Hazardous
Materials Division, Region VI, Dallas.
Paul Baltay, Deputy Director of the State Programs
Division, Office of Drinking Water, Washington, D. C.
David Schnapf, an attorney in the Permits Division, j
Washington, D. C.
And Heather Struck, also an attorney in the Permits
Division, Washington, D. C.
I don't know all of the members of the supplementary
panel. I would like you to stand starting from the left of
the panel and introduce yourselves to the audience, please.
MR. GLAZER: Arthur Glazer, Office of Solid Waste.
MR. HANNESSCHLAGER: Bob Hannesschlager, PSD program
here in Dallas.
MR. FERGUSON: Jack Ferguson with NPDES program,
Region VI.
MR. GORDON: Mark Gordon, Office of General Counsel,
Washington, D. C.
MR. PETERS: Dave Peters with the 404 program in
Region VI.
MS. ALLEN: Erlece Allen with the Water Supply
-------
12
1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
Branch, Region VI.
•
MR. SEVER: Charles Sever, Office of VJater Supply,
Washington.
MR. ECKERT: Thank you.
One of the things that we have announced that we
would do in the FEDERAL REGISTER notice of these hearings is
to inform the public briefly about sone of the issues with
which we're concerned in these consolidated permit regula-
tions on which we're interested in hearing comments.
I would like to introduce Heather Struck, who per-
haps more than anyone else in Washington, was responsible for
putting these regulations together in their final form,
and who is singularly well equipped to tell you about what
the issues are.
Heather.
MS. STRUCK: VThat I want to do is just highlight
some of the areas in which we're particularly interested in
receiving your comments and some that we know are contro-
versial at this point that might help direct your attention a
we review the regs..
I want to emphasize that multiple permits from the
same source is something that we're moving toward, and we're
very interested in working on. They're not required in every
case. I think this point has been made earlier.
But I just wanted to emphasize it again.
-------
1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
13
The second point, in terms of state program re-
quirements Part 123 does cover requirements for the state pro-
grams. We are not requiring that a state obtain approval undeji
one of the programs in order to receive approval under
another program.
The consolidation doesn't move that far. Nor do we
require that states reorganize any of their permit functions
to have them all in the same agency, as EPA does. What we
have tried to do, however, in terms of state program require-
ments is make the elements of the state program as consistent
as possible and make sure that there are no conflicts in our
requirements for the various different state programs.
A little note on how these regulations relate to
other regulations. You'll find that these regulations are
primarily procedural in nature. There are a number of tech-
nical regulations, such as those covered in the hearing yes-
17 terday.on the UIC program that are very.much related to
18 these, but are not located in Parts 122 through 124 of the
19 June 14th proposal.
20 Some of you may be a little bit confused about how
2i the NPDES regulations that were finalized on June 7th fit
22 into these regs. Those requirements have, for the most part,
23 been incorporated xvithout significant change into these regu-
24 lations.
25 The June 7th final regs will be effective until
-------
14
1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
these regulations go final, so those are the operating regu-
lations for NPDES. When these go final» they will take the
same parts, 122, three and four in the FEDERAL REGISTER and
will be incorporated along with the requirements for the
other programs.
A couple of the issues that you may want to look at
more closely as you read the regulations further. In Part
122, one of the issues that was considered during the draft-
ing was how to bring the reviews- of multiple permits for the
same source together.
What we are proposing is that any time a permit for
the same s-ource is modified or renewed or terminated, all
other permits for that source subject to these regulations
should be reviewed to determine whether or not the change
in the other permit would require an appropriate change in
the various other permits under these regulations for the
same source.
This is something that as the regulations are pro-
posed right now would apply to both EPA and the states. Vie
already recognize some logistical problems, particularly in
the.state/federal relationship.
But we would especially like your views on how this
concept of pulling together the permit reviews for the same
source could be implemented, whether what we've proposed will
work, or whether you have other suggestions for that general
-------
15
problem. That's in 122.9. '"
Another area that you may want to look at, whether
£
you are representing a state or industry or some other af-
3
fected group, is the reporting requirements in 122.14 and
4
122.15.
5
Some of the requirements for state programs that
6
we'd especially like your views on, look over the elements
of the state program in 123.4. Another area is enforcement.
8
This came up yesterday.
9
What we are proposing in 123.10 is that a state
program have at least the same maximum civil and criminal
11
oenalities as EPA does under the various different federal
12
statutes, the RCRA (Resource Conservation Recovery Act), the
13
Safe Drinking Water Act on which the hearing was held yester-
14
day, the Clean Water Act for 404 programs and the IIPDES pro-
15
16 5rair"
This has been a controversial area. What it es-
17
sentially requires is that the maximum penalty be the same
18
for the state program as for SPA, and that you would havs the
\<3
same array of enforcement options under a state program.
We're particularly interested in finding out whether
21
this would conflict with existinc state law. J'.r.c for those cf
22
you who are writing in comments, we would like to get as much
23
detailed information on that subject as possible.
24
Another key requirement that those of you who are
£v
-------
1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
16
t*
working with the state programs should look at is 123.S.
That contains a list of requirements from Parts 122 and 124
that apply to state programs, as well as to EPA. It's a very
important list that involves looking at the list itself,
then reading the requirements from the other parts.
One of the major areas that is applicable to state
programs is the basic public participation requirement in
the permit issuance process of 124. The requirement that
there be a draft perrr.it, a 30-day notice, a comment period
for draft permits, 30-day notice before public hearings,
etc.
So I suggest that you look at that list in 123.3.
We've also proposed criteria for the withdrawal of
state program if the state would like to give up the program
that has been approved, that these procedures would apply
where EPA decides that there is appropriate cause to try and
withdraw the state.
That's again very important for those of you in-
volved in the state programs.
In Part 124, which covers the permit issuance, we
have a provision that is aimed at trying to consolidate the
reviews of multiple permits for the same source. What we're
doing is proposing that permit application dates, with a
couple of exceptions, can be relaxed up to 120 days so as to
permit the consolidation of permit applications for the same
-------
17
•0
1 source.
2 That decision under the proposal would be made by
3 the applicant without any required consent by the EPA region.
4 If there's up to 180 days delay, there's also a provision,
5 with the permission of the Regional Administrator delaying th<
6 application up to two and a half years.
7 There are a couple of exceptions to this, the PSD
8 permit applications that are excepted, as well as the Part A
9 applications for the RCPvA program.
10 But we'd especially like your views on this pro-
11 posal and whether you think it w,ould work or not.
12 Also, note that the draft permit—the fact sheet,
13 the public hearing, public notices, etc., that's the basic
14 core of permit issuance can be consolidated. It's not re-
15 quired to be consolidated, but it can be consolidated, where
16 you have different permits for the same source. That re-
17 quirement is in 124 and 125 of the regulations.
18 Those are pretty much—oh, another one. Look at
19 the public hearing requirements in 124.13. T-That we tried tc
20 do there is provide some minimal due process protection in
21 the public hearing.
22 They will be more on the line of the panel hearings
/
23 that some of you have experienced in the past. These public
24 hearing requirements apply only to EPA, in terms of the fcrr
25 of the public hearing as it's held.
-------
1
2
3
4
5
6
7
8
9
10
11
12
13^
14
15
17
18
19
20
21
22
23
24
25
13
That's one 124.13.
Those are pretty much the major areas that I'd like
to direct your attention to. I'm sure you'll find others as
you review the regulations .
Thank you.
MR. ECKERT: Thank you, Heather.
Before we go any further, I would like to set out,
just very briefly, what are the general ground rules that we
operate under.
This is not a formal type of hearing, but we do have
a few general procedures that we'd like to follow. First,
all you smokers please sit over there on my left. There are
ashtrays provided. There are none on the right.
We will have tonight an additional session. Today's
session covers the consolidated permit regulations. Tonight's
w-irHr-cover— both-the eons o-1-idated— and- -the— ffl€ regulations. -----
The consolidated is primarily for those who couldn't attend
during the day and for those who couldn't attend yesterday's
session on UIC.
There will be registration from 7:00 to 7:30 tonight
out here — the front desk outside, and the hearing will begin
promptly at 7:30.
The docket, that is the public record on these regu-
lations is available in Washington, D. C. for inspection. Tha
I believe is Room ... I'll have to get the room number and giv
-------
1
2
3
4
5
6
7
8
9
10
U-
12
13
14
15
16
17
18
19
20
21
22
23
24
25
19
r
it to you later. I'm not quite certain about that.
•
There will be transcripts of this hearing available
within two weeks of the close of the hearing. Those
transcripts will be available in the reading rooms or
libraries at each of the regional offices, including the of-
fice here in Dallas. A list of the addresses of the regional
offices should be available at tiie registration table.
What we're here for is to listen to you. The focus
of this is how the public has responded and what they think
about the proposed regulations. We are soliciting comments or
not only the issues that Heather just discussed, but on all
issues that seem important to you with respect to these con-
solidated permitting regulations.
It's not primarily designed to inform the public,
nor to define the proposed regulations, but rather to get the
information and the advice and views that we need in order
to make intelligent revisions to the regulations when we issue
them in final form.
All major comments that are made during this hear-
ing today, during all of the hearings yesterday and tomorrow
and this evening, and written comments, whether or not a stat<
ment is made at the hearing, will be addressed by the Agency
in issuing the final regulations.
The way that we do this is publish a preamble to
the regulations in which we discuss the issues that were
-------
20
•G
1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
brought up by the comments and our disposition of the issues.
•
This is our way of assuring you that we have lis-
tened and taken it into account and to explain how we have
come to the final regulations.
This hearing is not an adjudicatory hearing. There
will be no cross examination as such. The idea is to listen
to members of the public present their views on the regula-
tions to the panel.
The panel will be asking questions of the witnesses
in order to primarily clarify ambiguities in the presenta-
tions and to explore alternatives which might meet some of
the concerns that the speakers raise.
Speakers are not under any obligation to answer
questions. I will try to remember, as each speaker comes up,
to ask you whether or not you're willing to entertain
questions from the panel. If you are, then I think that will
be a very useful dialogue that we can engage in. We think
that that's the way that we can really get at some of the
issues and mutually explore possible alternatives.
We won't entertain questions from the floor. The
object is not for us to talk to you, but to hear from you.
However, if there's time left ever, we --.-ill try to deal with
questions that are submitted in writing.
At the front desk outside there should be 3x5
cards. You may write your questions on 3x5 cards and leave
-------
21
V.y
1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
them with whoever is manning the table. They'll be presented
to the panel. And when the presentations by the speakers are
over, we'll try to deal with the questions as best we can.
That will be an off-the-record session. We'll just engage in
the frankest dialogue with you that we can and try to clear
up any questions.
We would like to have speakers limit themselves, if
they're going to make an oral presentation, to ten minutes.
And as chairman of the panel, I will cut off speakers who
utilize an inordinate amount of time.
It's important to emphasize here that we want to
hear from a variety of different people, and that the com-
ments will be fully considered—as fully considered if
they1 re submitted in writing as if they were submitted
orally.
So you do not lose anything by saving your last
points for written comments and submitting them later. I can,
assure you personally that they will be carefully and
seriously considered.
If you do have a copy of your statement with you,
please give that statement to the court reporter at my right,
so that she can make an accurate record.
If you don't plan to make an oral presentation,
but you do have a written statement that you'd like to submit
for the record, please give that to the hearing ccorc.ir.atcr,
-------
22
r
1 Sharon Gascon—would you raise your hand, please—at the back
2 of the room; and she will take any written statements where
3 you dcn'.t wish to make an oral presentation.
4 If you haven't filled out a speaker registration
5 card and you'd like to make a statement, you may go back to
6 the front desk and fill out one at any time, and we'll try to
7 work you in.
8 As I call upon someone to make a statement, please
9 come up to the lectern here and first identify yourself, so
10 that we can get an accurate record—the court reporter can gel
11 who you are; and be sure to give her any written statements
12 that you have so that she can follow it.
13 T'Te will continue through for lunch and break about
14 12:00 o'clock. If xvre're not through, we'll reconvene at
15 1:30. Depending on our progress, we'll either conclude the
16 session or break for dinner at 5:00 p.m.
17 Phone calls are to be posted at the registration
18 table at the entrance.
19 And I'm sure you all saw the restrooms that are
20 downstairs to the left on the outside.
21 If you wish to be added to our mailing list for
22 future regulations or other material, please leave your busi-
23 ness card or your name and address on the 3x5 cares at the
24 registration desk.
25 I have a list here of tseonle who have asked to
-------
•D.
23
r
1 make presentations. If this list is not complete, please let
2 me know.
3 I will be calling on the speakers in the order in
4 which I read off their names.
5 A. W. Dillard, President, Permian Basin Petroleum
6 Association.
7 Francis C. Wilson, Chairman, Environment and Safety
8 Committee, Independent Petroleum Association of America.
9 Richard L. Stamets, Technical Support Chief, New
10 Mexico Oil Conservation Division.
11 George A. Anderson, Manager/Rarest Improvement De-
12 partment, Brunswick Pulp Land Company.
13 - Joseph Crockett, Manager of Forest Technology,
14 Westvaco.
15 Paul Seals, Assistant General Counsel, Texas De-
~16partment~of Water Resources. -
17 Robert Silvus, Head/ Industrial Waste Water Unit,
18 Texas Department of Water Resources.
19 Dr. James Miller, Assistant Director of Environ-
20 mental Affairs, Freeport Minerals Company, testifying on be-
21 half of American Mining Congress.
22 John Robinson, Manager, Environmental Services,
23 Kirby Forest-Industrie's, Incorporated.
24 M. C. White, Manager, Forest Environment, Inter-
25 national Paper Company.
-------
24
1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
I have one additional name: Mr. Charles Farmer.
Are you here? *
MR. FARMER: Yes.
MR. ECKERT: Mr. Farmer, you indicated that you
xvanted to speak on the UIC regulations.
MR. FARMER: This is on 122.
MR. ECKERT: Very well, we'll have your statement
this morning then, and you'll be last in the order.
For our first statement, Mr. A. W. Dillard, Presi-
dent, Permian Basin Petroleum Association.
MR. DILLARD: Thank you, Mr. Eckert.
MR. ECKERT: Mr. Dillard, are you willing to enter-
tain questions?
MR. DILLARD: Yes, sir, I will.
MR. ECKHSRT: Thank you very much.
STATEMENT
BY
A. W. DILLARD
MR. DILLARD: For the sake of brevity, I will skip
part of these first two pages, but only certain portions of
them.
I want to thank you for this opportunity to speak
to the problems involved. I'r. addressing basically the UIC
Class II wells, oil field operations.
My name is A. W. Dillard, Jr., and my office is
-------
25
1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
at 1001 wiico Building, Midland,- Texas.
t
Currently, I an president of the Permian Basin
Petroleum Association, representing almost 1500 members
located in West Texas and Southeastern New Mexico. The
Permian Basin is the largest single producing area of oil and
gas in the lower 48. It produces about 1/5 of the crude oil
and 1/6 of the natural gas in the United States.
I'm speaking today not only for myself, but as
president of my association, but also representing the Pan-
handle Producers and Royalty Owners Association and the
West Central Texas Oil and Gas Association.
The EPA apparently has ignored the degree of risk.
Oil field produced brines in no way present the same danger
to life and health as most of the common chemicals to be
disposed of from other industries.
The rules, as promulgated, indicate great effort
to be fail-safe and do not consider that a risk free society
is -not possible. We commend their worthwhile dream and laud-
able theoretical goal.
The fourth part, the EPA regulations for injection
wells do not reflect the statement that the EPA has, in
truth, interfaced with ccr^oetent, experienced state agencies
in either the oil and gas producing states, or the 3LM, who
have been for years learning about underground waters, and
developing operating rules to protect them.
-------
26
1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
This seemed to come out in testimony yesterday from
i
various people representing the state agencies.
Also, in addressing Section 122, 123 and. 124 it
was very difficult to get any more than just the highlights
since we didn't receive these regulations until just the
other day.
So I will have just a brief highlight of these.
Section 122.5, page 34273. In cases where a
corporate vice-president has not had an opportunity to per-
sonally inspect each phase of the drilling and completion
of a Class II well, it would be difficult for that person to
execute your application, in view of the certification part.
This part should be amended to delete in the first
sentence"under penalty of law". The last sentence should be
deleted all together.
These certifications worded as proposed are stupid
at best. Affidavits in courts of lav/ and things such as
that do not require such requirements as you all are making.
Again, more persecution than cooperation. Is
this type of certification required of federal employees
signing documents?
Section 122.23(b), page 34273. It would appear
that until RCPA and UIC get this act together, the applicant
will be submitting permit requests 180 days before starting a
well.
-------
«J
1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
27
This section provides no time limit on approving
an application. Therefore, what is an applicant to expect
in time to be able to drill and complete and put into opera-
tion a disposal well.
Section 122.26(a), page 34231. Special waste,
such as oil and gas produced brines, should be completely re-
moved from 40 CFR 250.46 until EPA has a better understanding
of this and proof positive that it is indeed a hazardous
waste. Please read your first comment included in this
section.
Page 34269. Under paragraph "Major Hazardous Waste
Management Facility", the use of 5000 metric tons per year
would be extremely low, if this applies to-a- disposal well
oil and gas produced brines.
This figure xvould represent 81 barrels a day of
8.8 pounds per garioir~o"f~warEe3r; This is d uiiuor disposal
operation. Most disposal wells are drilled to accommodate
hundreds of barrels per day.
Section 122.36 (b) (2). What is a reasonable time?
How long does the agency, if federally operated, expect to
take to issue a permit to drill a Class II well? And, again,
this is referring to 122.23(b) in regard to disposal well
application time which is also too long. Ten days is all it
should take for such an application approval.
And we can get those application approvals through
-------
28
1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
IS
17
18
19
20
21
22
23
24
25
state agencies in that length of time or less, and it's a
very simple procedure. *
Section 122.36(d). How can mechanical integrity be
proved on a permit application before the completion of a
Class II well? Please refer also to this under 146.03 and
146.25 (p).
Section 122.42(a)(7). To my knowledge, Texas, New
Mexico and Oklahoma have either plugging bonds or a method
to get to the operator's assets to force compliance.
The Texas Railroad Commission has the authority to
sever an operator's pipeline connection, and thus force the
operator to properly perform what is required before the con-
nection is reinstated.
The requirement of a plugging bond on each of the
45,000 injection wells in the state of Texas would be a large
and unnecessary economic burden to the operators, and could
lead to the plugging of many deep marginal and stripper
type wells, with a loss of untold reserves and present pro-
duction which we can ill afford.
Section 123.10. And I believe Ms. Struck was just
talking about this.
Most states have some penalty assessment and pro-
secution features for the state's regulatory bodies, but
probably none have, or require, the degree of severity that is
established by the EPA.
-------
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
It is doubtful any legislative body of a'" state
would pass such laws to conform. Thus,«it would appear that
this is a back door approach for the federal government to
have complete control, instead of the established state
agencies, to continue to operate a successful on-gcing pro-
cedure .
Injunctive relief by our government to shut down
operations that are demonstrated to be potentially hazardous
to public health or public safety should be quite adequate.
The EPA appears to be more prosecution oriented
than interested in cooperating with successfully operated
state agencies with a better knowledge of the state's needs,
plus the vast quantities of information acquired and
developed.
Section 124 (b), page 23742. Current rules and
practices of the Railroad Commission of Texas provide for
notification of interested parties (surface owner and offset
mineral owners) prior to the issuance of the injection per-
mits .
Also, all proposed hearings before the Commission
are a matter of public record. Any additional public
hearings and/or public advertisement of notification would
be redundant and an undue economic burden on all parties in-
volved.
And I'm wondering here at this point if the Z?A has
-------
30
1 in truth really interfaced and studied the state1s'procedures
2 in these public hearing notices and how*they're conducted.
3 The time elements involved are short and. don't need
4 to be drug on endlessly 30 to 60, to 90 or 120 days.
5 General comments with regard to the EPA's economic
6 impact statement. The economic impact statement for Class II
7 wells is probably understated by 300 percent. I'm being very
8 kind here.
9 The mechanical integrity test, by simple pressure
10 test alone, on approximately 45,000 injection wells in Texas
11 would cost roughly $33,750,000. If you have to have a pull-
12 ing unit to move the packer around, you can add another
13 $1000 per well to do this.
14 And if you take 45,000 wells, you're going to
15 add another $45 million to the cost.
16 This amount would drill quite a few oil and gas
17 producers which are sorely needed. It is admirable that the
18 EPA has grants for the various states for their operation,
19 but it would be nice if the operator had some.
20 The economic impact is great on the oil and gas
21 industry as it diverts monies for non-essential spending that
22 is more needed in exploration and development.
23 On paga 23758, preamble to Section 146, the state-
24 ment is made that the Agency estimated these 'regulations may
25 result in the loss of 12,000 barrels a day of oil production
-------
31
r
1 or 1/10 of one percent of the total annual production.
2 Examine these figures and explain to the public the
3 daily loss of the following:
4 268,000 gallons of gasoline ^
5 58,800 gallons of diesel or number two fuel oil
6 23,800 gallons of jet fuel
7 16,300 gallons of LPG
8 25,200 gallons of solvents
9 58,800 gallons of number six fuel oil
10 16,800 gallons of plant fuel at the refinery
11 Most every past experience of industry in dealing
12 with a federal agency, we find that the impact on industry
13 is many times greater than that stated by the agency prior tj
14 implementation of rules and regulations and much less pro-
15 ductive.
16 Under Subpart C of the UIC program, it should be
17 emphatically stated here that the EPA has not presented any
18 facts relative to the on-going pollution of sub-surface fresh
19 water due to injection practices in the state of Texas.
20" This can apply also to the states of New Mexico and
21 Oklahoma. Apparently the EPA has totally ignored the IOCC
22 report covering the states of Arkansas, Oklahoma, Mew Mexico,
23 Texas and Louisiana.
24 Apparently, the EPA insists upon promulgation cf
25 rules to correct a problem which does not exist.
-------
«b
•o
1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
"16"
17
18
19
20
21
22
23
24
25
32
i-
Thank you, gentlemen.
MR. ECKERT: Thank you, Mr. Dillard.
Before we go into the questions, I would like to
reiterate that the purpose of this hearing is to cover the ™
consolidated regulations and not specifically the UIC pro-
gram.
If you wish to comment specifically on the UIC pro-
gram, then I suggest that you submit, Mr. Dillard, a copy of
your comments in response to the proposal of the Part 146
regulations to make sure that it becomes a part of the re-
cord of the UIC program.
MR. DILLARD: The 146 was testified to yesterday,
and a written copy was presented already.
MS. ECKERT: All right, thank you.
Any questions from the panel?
I' d liJce to o~f"£er~several "points~~b~f~"
clarification, and I do have a question for you.
There's an apparent misinterpretation in your testi-
mony, sir. 122.5, the signatory requirements, if you'll look
at that, we did require that signature by the corporate vice
president for Class II wells did not seem to make a lot of
sense.
There's a specific exception granted in Part B of ™
122.5 for Class II wells for responsible project managers
or field managers.
-------
I
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
33
MR. DILLARD: Well, the way that thing was written,
it appeared to me that he had to—you mi'ght say cross examine
each person that had been working on that operation. Then he
has to sign it to the best of his knowledge. I
This is what really should be done. He can certify
to it, to the best of his knowledge.
Like I say, I just barely got a chance to run throug
these regs.
MR. BALTAY: But we did recognize that difficulty,
and we tried to improve that.
MR. DILLARD: I think you could use some form, just
like you do an affidavit. And you people are lawyers. You
know what I'm speaking of. Just a straight affidavit that
use on our leases or anything else like that. You certify it
that the facts are correct to the best of your knowledge.
MR. BALTAY: The next point was under 122, the per-
formance bond question I think was discussed yesterday. You
stated here that you're not speaking of a performance bond,
you're speaking of financial responsibility.
MR. DILLARD: Well, let me go back then. When
you're speaking of financial responsibility, under the RCRA
program we were looking at a five and ten million dollar
liability, and you can't buy that kind of insurance. A
Secondly, I just got in another stack of regs on an
oil clean-up spill proposition, a maximum of $50 million
-------
34
t*
1 liability and a minimum of eight million liability. How,
2 gentlemen, if I had that kind of money, 'I wouldn't be here.
3 I'd be in Palm Springs all winter and someplace else all sum
4 mer. •
5 MR. BALTAY: The UIC program does not involve those
6 things.
7 Finally, I just wanted to say that you mentioned
8 that EPA has ignored the IOCC report. Again I think we dis-
9 cussed that yesterday. We did consider it very carefully.
10 Unfortunately, we reached the conclusion that it was
11 as much help as we thought it would be.
12 MR. DILLARD: Well, the thing is—I know the State
13 of Texas—and I testified in San Francisco and had a letter
14 from the Texas Railroad Commission that in the past roughly 40
15 years that they could find four cases in which it looked like
16 there was contamination of ground water from some oil field
17 operation.
18 We were dealing at that time with drilling muds and
19 produced brines. We have probably the best program for pro-
20 tecting the ground water. And we have so few cases of any
21 actual damage having ever occurred that I think the thing to
22 do is let the states continue in the operation which they're
23 doing. 4
24 And like I said in here, you don't have the penalty
25 provisions within these various states that meet the federal
-------
u
35
f
1 requirements. I think yo'u all could, lower your requirements
2 to that point and let the states continue with its programs.
3 We have oil-producing states that have been doing
4 this for 40 and 50 years. And I think we have an awfully
5 good record on these things.
g MR. BALTAY: On the last page of your testimony
7 there are some numbers that appear. Would you give us some-
8 thing about the derivation of those, or exactly what these
9 numbers represent?
10 MR. DILLARD: Yes, sir. On the 12,000 barrels—
11 MR. BALTAY: Right below that it says "Examine
12 these figures and explain to the public the daily loss of
13 the following."
14 MR. DILLARD: The 12,000 barrels of crude—that is
15 you estimate.
16 MR. BALTAY: That was an EPA estimate.
17 MR. DILLARD: This is breaking it down into what a
18 refinery in West Texas on their mix would be running of
19 12,000 barrels of crude per day.
20 MR. BALTAY: If there v/ere a 12,000 barrel per day
21 loss of production, this would be the consequences?
22 MR. DILLARD: Yes, sir. If I had 12,000 barrels a
23 day and I publicly announced that I was going to shut it d
24 they'd send the Army down to see me.
25 MR. BALTAY: Thank you.
-------
36
1
2
3
4
5
6
7
S
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
MR. SCHNAPF: I'd like to explore this area of per-
formance bonds and other financial responsibility a little
further.
You state that to your knowledge Texas and New
Hexico and Oklahoma have some kind of mechanism, either plug-
ging bond or otherwise, to assure financial responsibility.
And I wondered if you could describe the methods
that each of those states use in a little bit more detail.
MR. DILLARD: Yes, sir.
I believe in Oklahoma you can have a blanket bond
which covers all of your operations, which is a $10,000 bond.
y
And in Hew Mexico you can have the same thing, a
$10,000 blanket bond that you can operate under.
There are certain bonds that have been required on
some federal lands. They're a little higher than that.
1-Iow, in Texas the Commission finds that you are in
violation, for some reason or another all they have to do is
send a notification to the pipeline company; and they just
send you a carbon copy of it with no notification, no hearing.
They sever your pipeline connection immediately. You cannot
run any oil.
And if you don't run any oil, you haven't got any
cash flow. And you're darn sure going to get out there and
do what's right before you can get your oil running again.
MR. SCHNAPF: Just to recap, you're saying that
-------
37
1 Texas has this pipeline severance which you're saying is
2 equally as effective?
3 MR. DILLARD: Yes, sir. In fact, it's probably more
4 effective. (
5 MR. SCHNAPF: I guess the point is that for a per-
6 son who is abandoning a well and may be bankrupt, there needs
7 to be some method. Ue're not trying to specify exactly what
8 that method should be, but that there would be some method
9 to assure a bankrupt operator would take care of his obliga-
10 tion.
11 That's just as a point of clarification.
12 MR. DILLARD: I understand what you're talking
13 about. tfj
14 Let me say that in the last legislative session,
15 we had one legislator who leased his land to a fly-by-nighter
16 Now the Commission knows the people they're working with.
17 If they have any reason to suspect that a person
18 is not going to perform absolutely perfectly, they're going
19 to be looking over his shoulder like a hawk.
20 Now this one legislator did put forth before our
21 state legislature the proposition for a performance bond in
22 Texas. Well, it died aborning. It did not even come out.
23 But he had a fly-by-nighter come in from Korth
24 Carolina, drill a well on his place, did not plug it, walked
25 off and left it, didn't clean up the location or do anytning
-------
38
1 else.
2 And, of course, he was madder than a hornet. Well,
3 these things will happen once in a great while. Now the state
4 has in the past—they have a fund in which they have been (
5 going out and plugging some of these operations that may be
5 a number of years old and they're in certain areas that—I'd
7 say where you had some very small and very, very shoestring
8 operators who will not perform properly.
9 . But you're not going to catch them any more than the
10 state is going to catch them. They can run off and leave you
11 just like everybody else.
12 But we have very, very few problems with these.
13 And I think if you'll check with the gentlemen from the Rail-
14 road Commission that are here today, we don't have too awful
15 many problems with this, because the operators know they're
16 going to get along with the Commission because the Commission
17 is going to cooperate with them.
18 MR. ECKERT: Any further questions?
19 MR. SKINNER: I have a question with respect to
20 your comments on the penalty levels. The penalty levels are
21 set in the various statutes. They're not things that we can
22 change, at least for the EPA program—for the federal program.
23 But also under each of these laws, there's a re-
24 quirement that when EPA approves a state program, that that
25 program be equivalent. Some of the laws you have different
-------
39
1 words, but basically equivalent to the federal program-.
2 One of the issues that we dealt with is how do v/e
3 know whether a state program that had different penalty levels
4 from the EPA penalty levels would be equivalent to the federal
5 program. How would we make that judgment.
6 Clearly if the levels were the same as the EPA
7 levels, we v/ould say it would be equivalent. But what if the
8 levels were half that or quarter that? Would you nake a sug-
9 gestion as to how we would carry out that analysis?
10 MR. DILLARD: I believe that Mr. Chauvierre yester-
11 day from the State of Louisiana mentioned their penalty pro-
12 visions of $1000 a day. The State of Texas also has several
13 penalities of $1000 per day.
14 I believe you have a one-time penalty of $5000, I
15 believe it is. As Mr. Chauvierre pointed out, a man can run
16 up a hell of a penalty if he wants to sit there and do nothing
17 for a week or two weeks at a time.
18 The criminal penalties in the State of Texas, you
19 can be tried under a misdemeanor charge. There are no extreme
20 felony penalties under these.
21 But the $1000 a day is a pretty good whack at you,
22 if you just don't get out there. And of course, when you
23 notify the Commission and you shut down and they're in agree-
24 ment with what you're planning on getting done and they ap-
25 prove of your program, because you go to them immediately and.
-------
1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
40
tell them, "Look, I've got a problem, and we're going out
here and get this corrected; and then I 'want you to inspect
it and put me back in operation."
If they choose not to penalize you, that's up to <
them. They have the jurisdiction to do this.
But if they do want to penalize you, they certainly
have the authority to do it.
I think it's a matter of trying to work in co-
operation and not worry so much about the prosecution of a
person because we're all just as interested.
West Texas is a semi-arid region. And we're all
vitally interested in protecting our water resources. We
know where they are. The state knows where all the water
sources in the state are.
We have those pretty well mapped for the entire
state. They dictate to us what type of casing program we
have, the cementing programs. We follow those.
MR. MOREKAS: I just want to make sure I understand
your comments on Section 122.22(d) and 122.26. Before I ask
the question, let me kind of explain to you what we had in
mind in those requirements, so that we understand each other.
There is no requirement for regular permits for
Class II wells. The only requirement that v/e do have is tha
if, in fact, the Class II well injects these special wastes,
raw brines, that they be considered as having a permit by the
-------
41
rule under RCRA— '"
MR. DILLARD: Well, maybe I misread the thing be-
cause I keep going back to having read all the RCRA rules,
O
trying to come up with that. And then when I run across where
the RCRA part will apply to a certain portion—like this came
5
up yesterday—and the UIC would have jurisdiction of the hole
6
in the ground--the surface application.
If you have a storage tank over here in which you're
pumping produced brines, produced waters into, it would have
10 to have a RCRA permit. That's the way I understand the con-
versation yesterday.
12 MR. MOREKAS: Correct, but not for the injection
portion of the well.
MR. DILLARD: You'd still be subject to two permits,
1K as I see it. You'd have a surface permit from RCRA and an
10
injectipn permit from UIC.
But until something is done on this hazardous waste,
we're still going to be subject to the RCRA to inject—now thi
,g is my interpretation of it. I'm. sorry, I may be off base—
2Q MR. MOREKAS: Not for a Class II well.
21 MR. DILLARD: OK, sir.
22
situation is for Class IV wells.
MR. MOREKAS: The only place where we are in that
e? i 4«n a ^ n s^t*
23
24 MR. DILLARD: Well, I'm strictly interested in
25 Class II wells. That is providing that they fall in where you
-------
42
1 can inject produced brines, and you're also for enhanced re-
2 covery operations. '
3 But I would like to see this RCRA thing cleared up
4 and get this hazardous waste business—
5 MR. MOREKAS: As you point out, that's the other
part of the RCRA regulations proposed back in December.
Thank you.
MR. ECKERT: Further questions from the panel?
9 MR. SCHNAPF: Just one final question.
10 It was indicated that if you had a storage facility,
you might need a RCRA permit. I was wondering how frequently
12 there is a storage facility associated with a RCRA permit.
13 MR. DILLARD: Always. When you bring your pro-
14 duction up, you run it through a separator, a heater treater
15 and a separator and then into your storage tank. The oil
16 goes into one tank, and the water goes into another.
17 Then you take your water off of that tank and pump
18 it into an injection well, if you have one. Otherwise,
19 you're transporting it out and getting rid of it. You al-
20 ways have that.
21 MR. ECKERT: Thank you, Mr. Dillard.
22 Our next speaker will be Francis C. Wilson, II,
23 Chairman, Environment & Safety Committee, Independent ^
24 Petroleum Association of America.
25 Are you willing to entertain questions?
-------
1
2
3
4
5
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
43
MR. WILSON: Yes.
STATEMENT
BY
FRANCIS C. I7ILSON, II
MR. WILSON: Good morning. My name is "Tug"
Wilson. I'm appearing today on behalf of the Independent
Petroleum Association of America in my capacity as Chairman
of the Association's Environment and Safety Committee. I ara
an officer of Wilson Oil Company of Santa Fe, New.Mexico.
The IPAA, which is a national association of approxi-
J
mately 500(2 independent domestic explorer-producers of crude
oil and natural gas,welcomes the opportunity to present its
views at today's hearing.
Because of the short amount of time we have had to
review Parts 122 through 124, our presentation will be general
and limited in scope. Before the comment period closes on
September 12, the Association will submit comprehensive, de-
tailed comments on Parts 122, 123 and 124 in a written state-
ment. My testimony today will address only Part 122.
Before commenting on some of the general and specific
concepts embodied in these proposals, I would like to describe
the nature and activities of the average independent producer,
which is apparently being lost on you and some of the EPA
writers.
The vast majority of ,this nation's independent
-------
44
I producers operated in noncorporate form, by themselves or in
2 small partnerships or joint ventures. Their office staffs,
3 which usually consist of a small number of employees , are
4 finding it increasingly difficult to keep up with the seem-
5 ingly endless stream of new government forms and regulations.
6 One alone doesn't do it. It's the final straw that
7 gets to us .
g The independent has remained an active, vital con-
9 tributor to the development of this nation's petroleum sup-
10 plies because of his ability to mobilize quickly and seize
11 opportunities as they develop.
12 Government bureaucracy-caused delays will hinder not
13 only the competitive advantages of the independent producer , JM
14 but the nation's energy production as well.
15 Somehoxtf the point is lost — I feel that with the
16 major producers, the major companies, these forms get cranked
17 out on a computer. And all the one's at our office get cranked
18 out by hand . And they do add up .
19 In reference to Part 122, with this background of
20 the independent oil and gas producers in mind, let me now
21 turn to our comments on Part 122, the consolidated permit
22 program.
23 While we laud the Agency's goal of streamlining
24 permit procedures for several federal environmental programs
25 through a one-stop permit approach , we are not convinced that
-------
45
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
the end result of the proposal here before us is the most
efficient or simplified way of achieving that goal.
Reading through the pages and pages and pages of
proposed regulations in the FEDERAL REGISTER, one can only
conclude that the EPA's consolidated permit program is very
complex, cumbersome and is sometimes contradictory.
We fear that delays are inherent in the procedures
proposed. That's the one factor that xve can't really tolerate
Much information that is requested in permit applications is
simply unnecessary and will serve no useful purpose, while
other data requested is already on file with state regulatory
agencies.
Consolidation will be difficult enough if a. single
state agency or the EPA is the primary enforcement authority
for all programs in a given state. However, the difficulty of
coordinating permit applications appears to be compounded if
jurisdiction over a particular business operation is divided
between a state regulatory agency and the EPA.
It becomes even more confusing when more than one
state regulatory agency is involved.
The consolidated permit program could pose unique
problems to oil and gas producers because of the nature of oil
and gas exploration, development and production operations.
Drilling operations could activate certain permit programs
not necessary for production facilities subsequently located at
-------
o
46
«•
1 the same site or vice versa.
2 Likewise, the same program could be activated at
3 different stages of development. For example, the RCRA per-
4 mit procedures could be activated for drilling-related
5 facilities at a given location and later for production-
6 related facilities at the same site.
7 On the other hand, plants and factories generally
3 do not change the scope of their business over time, so that
9 all or most of the necessary permits for these facilities can
10 be planned for in advance and applied for at the same time.
11 It appears that existing permits would have to be
12 reviewed every time application is made for a new permit at
13 the same facility. Therefore, the review process could be
14 triggered frequently and needlessly.
15 Thus far, my comments have been general and directed
-46—ii—feo-4iie^ overall-concept of a consolidated permit program. The
17 I-PAA has the following comments with regard to the two environ
18 mental programs that will have the greatest impact on our
19 members, at least in the near future.
20 The Resource Conservation and Recovery Act. Pursuan
21 to 122.26 of EPA's proposal, facilities disposing of, treating
22 or storing "special wastes" (such as drilling muds and oil
23 production brines) may be permitted by rule and need not go
24 through the permit application process.
25 However, this special permit by rule provision appli
-------
47
o
1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
only if the facility is in compliance with standards contained
t
in 40 CFR 250.46 — regulations that to our knowledge have
not yet been finalized.
As IPAA has pointed out on numerous occasions in
both oral and written statements, it will be impossible for
oil and gas operators to meet all of those requirements. For
example, facilities cannot be located in the active fault
zone areas, the wetlands and other—500-year flood plains.
We don't have the option of choosing where to drill
our oil wells. Oil is found where it's found.
Also, the permit by rule is only a temporary measure
The Agency has indicated that it will study the special wastes
and determine what additional regulation is needed.
There is no assurance that the full permit applica-
tion process will not have to.be followed by owners/operators
of special waste management facilities in the future.
Finally, states are encouraged to implement the
permit by rule concept, but are not bound to do so.
In the final analysis, the RCRA permitting require-
ments as applied to oil and gas exploration and production
activities might well be more onerous than they appear to be
at first blush.
If special wastes are not regulated by rule and are
subject to the full RCRA permit program, the resulting impact
on domestic drilling and production activities would be
-------
O
43
r
1 devastating.
•
2 The RCRA permitting process, as proposed, is not
3 workable for these types of operations. The program does not
4 take account of the temporary nature of drilling operations
5 and their associated hazardous waste management facilities,
6 such as reserve pits that store and dispose of drilling muds.
7 Under the R.CRA program, an operator would have to
8 apply for a permit at least 180 days before physical con-
9 struction is expected to begin, which is 122.23 (b). An
10 operator could lose a lease while waiting and wading through
11 the application process.
12 Secondly the underground injection control. Yester-
13 day I presented an overview of our comments on the proposed
14 UIC regs contained in Part 146.
15 As I indicated at that time, we urge EPA to show
16 restraint: in impns-ing. the-proposed federal requirements on
17 states that already have adequate programs for protecting
18 drinking water sources. It makes no sense at all to disturb
19 existing programs that have proved workable and effective.
20 With those reservations in mind, the IPAA, neverthe-
21 less, commends the EPA for significantly revising certain
22 aspects of the UIC permit program.
23 We favor the concepts of area permits, temporary
24 authorization of certain injection operations and permits for
25 the life of a facility and endorse the authorization of existi.
-------
49
1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
enhanced recovery injection operations by rule instead of
•
permit.
Because injection cannot begin at a new well until
a permit has been received by the well's owner or operator,
applications must be processed expeditiously.
In this regard, the Association recommends that the
burden be shared by both the owner/operator and the juris-
dictional body responsible for issuing the permit. Once a
full and complete application has been received by the
regulatory authority, injection operations should be allowed
to begin within a specified period of time, if the regulatory
agency had not acted on the application within that time
frame.
In conclusion, we urge the Agency to simplify its
permit application process — whether it adopts a one-stop
permit or multi-permit approach — so that procedures, in-
struction and application forms are more precise and easily
understood.
.Also, we strongly encourage the EPA to defer to
existing state practices whenever possible in order to avoid
disruption and to minimize paperwork and recordkeeping bur-
dens .
The IPAA welcomes the opportunity to work with the
Agency in devising a realistic and effective solution that
is acceptable to all parties concerned.
-------
o
o
50
1 Are there any questions?
2 MR. ECKSRT: Thank you. Quest'ions from the panel?
3 MR. SKIiiNER: You talked about the delays in obtain-
4 ing a permit and the wait and the implications of that wait
5 for your industry.
6 In states where your members currently are permitted
7 what is the typical review time on a permit? How long do you
8 generally wait? Is it very quick?
9 MR. WILSON: Very quick. Two weeks average time.
10 I don't know if this—we don't know, but that's something that
11 we really want to make very clear to the EPA in coming out
12 with your final rules is that that delay is really expensive
13 and hazardous for us in that we have time requirements be-
14 cause of lease times or capital requirements that we have to
15 move quickly. That is our only competitive edge.
16 MR. SKINNER: Obviously in a two-week period of
17 time, a state cannot do a very thorough. review of an ex-
18 tensive permit application. So the permit must be fairly
19 simple, and the application must be fairly simple.
20 MR. WILSON: The information available—the signifi-
21 cant information is already available to the state. Mew
22 ' Mexico state is a half mile area of interest, so they al-
23 ready have a lot of that information there and know the
24 situation and can get their hands on it so they can make a
25 quick decision.
-------
51
i
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
I don't think it's a lightly taken application.
MR. SKINNER: Thank you.
MR. ECKERT: Other questions?
Mr. Schnapf.
MR. SCHNAPF: Just one observation. I'd like your
reaction to something you run up against fairly frequently.
On the one hand you're asking us to defer to the states and
allow the states to run their programs pretty much as they
want to.
And on the other hand you're saying that we should
require permit by rule under RCRA and shouldn't allow the
states to have the option. And you're also saying that we
should require the states to issue their permits within a
certain time frame and we shouldn't allow the states to issue
under their own process.
I was wondering is there a contradiction there?
And if so, which principle do you feel in more strongly?
MR. WILSON: The various states have different
programs. And I think the ones that are working in the
states that EPA should devise a plan to see what those are.
One of the keys to our end of the business is to
find out what works.
As to the permit by rule, again they can have—they
can choose whatever they want to do to make it work. And what
ever has worked, I think should be examined carefully and be
-------
52
sura that it continues to work.
1
2 MR. SCHNAPF: If it works in d particular state, are
3 you saying that we should make the other states use that same
4 system?
5 MR. WILSON: No. I suspect that the state regula-
g tory agencies get together and find out what the other ones
7 are doing and see if that applies for them. We feel certain
3 that the state regulatory agencies are trying to do the exact
9 same job that you're hoping to have done and are finding the
10 way to do it best for them in their circumstances.
11 MR. SCHNAPF: OK, thank you.
12 MR. ECKERT: Any further questions?
13 (No response.)
14 MR. ECKERT: Thank you, Mr. Wilson.
15 The next speaker is Mr. Richard Stamets, Technical
16 Support Chie^^Jjew^jjexico^Oil Conservation Division.
17 STATEMENT
18 . BY
19 RICHARD L. STAMSTS
20 MR- STAMETS: Thank you. I gave my introduction
21 yesterday. I might repeat just a little bit.
22 Besides working for the Oil Conservation Agency,
23 I'm chairman of the Environmental Protection Committee of
24 the Interstate Oil Commerce Commission, a member of the
25 National Drinking Water Advisory Council. I'm appearing here
-------
o
1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
53
r
for the State of New Mexico and in none of those other capa-
I
cities.
Like everybody else, I haven't become as familiar
with these regulations as I am with Part 146. But I have re-
viewed them fairly thoroughly.
I would like to point out that many of the comments
made yesterday would apply today because these regulations
are so intimately tied together.
I would like to talk just a second about the IOCC
report that was done for the Drinking Water Advisory Council.
I would say that the IOCC report was done in a very short
period of time.
We did exactly what the Council requested. Mr. C. C
Johnson at the Denver meeting of the Council a couple of meet-
ings ago did point out that the lack of evidence is often gooc
evidence in itself.
I would characterize the parts that we're talking
about here today, 122, 123 and 124 as the unnecessary being
imposed upon the unwilling in all cases.
Mr. Dillard spoke first, and he talked about the
certification statement being stupid at best, and that cer-
tainly struck a chord in here. Now, those weren't my words,
and I certainly wouldn't use then. But it touched my heart.
The only comment I've got as to the consolidated
form, the permitting form, is that there are two addresses
-------
54
r
1 required. And I don't believe this has any place with Class
t
2 II type wells. You can't define the address of the well it-
3 self as being third fence post past Loco Hills and to the
4 right six miles.
5 We would propose that there only be one address for
g any UIC permit, any UIC forms that come in there be one ad-
7 dress, not a separate address for the facility itself.
8 Section 122.3 (c)15, which is the definition of a
9 produced fluid disposal wells, I would point out that in
10 practice salt water disposal wells oftentimes go right back
11 into the same reservoir.
12 But we don't classify those in every case as an en-
13 hanced recovery project. So you can have SWD in the same pool
14 as well as putting salt water disposal in a different forma-
15 tion from that which it originated.
16 122.5 (b), which talks about who can sign the forms.
17 The states really need to be able to collect a bunch of dif-
18 ferent names of people who can sign the forms. Let's say we'v
19 got one name from one office who can sign the forms.
20 If he's sick in the hospital, if he's off on vaca-
2i tion, everything stops. Well, that's not a very sensible way
22 to handle, business. You need a number of people who can sign
23 the forms.
24 Further, some of these things come from the Houston
25 office. Some of them come from the Midland office. Some of
-------
55
O
them may come from Hobbs. Each one has a reason for coming
2 from a particular office.
3 The production reports which we get in the State of
4 New Mexico/ which also include our injection information, may
come from New York where the computer is. So we need to be
able to have that man in New York sign that form that would
count just as much.
Right now we're having enough trouble getting these
production reports where they're only mailed onetime. If the
10 9UY ^-n New Yor^ has to mail the report down to Midland in orde
to get the district engineer to sign it, so he can send them
12 UP to Santa Fe, we never will get the damn things.
13 Section 122.5(d). The monthly reports of injection
14 are currently filed on the same form. I've mentioned that.
15 The certification is not the same. I agree with the comment
16 on certification.
17 When you do get this whole thing straightened out
18 so that we're not going to have to change the form that we've
19 got, I don't believe the certification that's called for is
20 necessary
122.7(e)3. This talks about changing the ownership
22 of the permit, in essence, is what it's talking about. And
23 the director has to act within 30 days.
24 Now, in New Mexico if state lands are involved or
25 private lands, we have to have a bond in the name of the new
-------
56
1 company. Sometimes it takes a while to get these b*onds due to
2 one problem or another.
3 And let's suppose that the bond doesn't come in tillj
4 45 days after the man has changed his permit. You could have
5 the situation where we've got to change the permit over to the
g new man's name within 30 days.
7 But we're not going to change the well until the
3 bond comes in. So we could have the guy with the permit and
9 no wells, you know, why don't you leave that to us? We'll
10 take care of it. We'll change the permit over, we'll change
11 the wells over, and we'll do it.in a timely fashion.
12 122.9(c). If the Director may review and issue a
13 permit or modify a permit at any time, why worry about the
14 five-year review? I'm sure what you're talking about here
15 is there's some cause for reviewing the permit.
16 OK, we're going to take a look at it. We're going
17 to fix it up. We're going to see what the problem is. If
18 the five years comes up, we're going to look at it. No
19- problem. Why bother? It seems like a waste of time.
20 We've got men in the field who are going to be re-
2i viewing these injection wells periodically. We believe salt
22 water disposal wells at least once a year; other injection
23 wells at least every three years.
24 If there's any cause for review, it will be done at
25 that time. And so the five-year review is a waste of our time
-------
O
1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16~
17
18
19
20
21
22
23
24
25
57
»•
and a waste of the operator's time.
122.S(e). The changing of standards or regulations-
you get your permit today. Next year EPA changes the stand-
ards , we change the standards. We're going to have to do like
Mr. Chauvierre said yesterday, start stretching that casing.
It's not going to work.
I think the only time we should be concerned with
modification of permits as a result of changing standards,
regulations is if there is an imminent or real provable endan-
germent to. fresh water being threatened.
122.10 (b)3. The first two words should be changed
here to "evidence demonstrating". The wording in here says
"information indicating jthat the activity poses a threat to
human health or the environment."
I believe this is rather flimsy wording on which to
terminate a permit.
122.12(a), requiring schedules of compliance where
appropriate is very good and proper. As I said before, there
seems to be little use for schedules of compliance in permit-
ting Class II wells.
In New Mexico we say, ' '';ou may start up your pro-
ject when all of these things ara taken care of", so there's
no need for a compliance schedule. We're dealing with large
numbers of wells compared to the industrial disposal wells,
the Class I and III wells. And it just makes it more
-------
53
O
w
O
1 complicated for all concerned.
2 122.12(b). This concerns compliance schedules lead-
3 ing to termination. And I believe the indication is that the
4 state can just do it, or has to have the power to just do
5 it. And I think in most cases we can't just do it.
6 Now we may say, "Yes, you will do this", and then if
7 he doesn't do it, we could call a hearing or we could issue an
8 emergency order, or we could take him to court.
9 But we can't just do it. So you might want to re-
10 phrase that to take that into consideration.
11 122.14. We agree wholeheartedly with the EPA
12 position expressed in the comment that "generally installation
13 of monitoring equipment is not required under UIC program."
14 I really don't think this has much of a place in Class II.
15 Things are not going to change that much as to the constituent
16 I of the injected water.
17 122.15 (a). At the meeting in Dallas wherein repre-
18 ! sentatives of the EPA explained the intent of these regula-
19 tions, it was stated that EPA did not anticipate that Class II
20 wells would be considered as major"permits under the UIC
21 section of these regulations.
22 . We would concur in that decision, that this parti-
23 cular set of reports called for here would greatly increase
24 the cost to the states and would be of little value to EPA or
25 the public.
-------
59
r
1 This talks about reporting of problems. Commonly
2 any problems found in the field are taken care of immediately
3 by Division inspectors and company personnel.
4 To require the amount of detail listed here to be
5 filed on each instance of noncompliance would severely impact
6 on the time available to our inspectors for completion of
7 their regular work effectively reducing the number of in-
g spections that could be made.
9 The sheer number of Class II wells would indicate
10 that a very large number of insignificant noncompliance report
11 would be generated.
12 122.15 (b). We concur with the manner in which the
13 first paragraph has been written indicating that only problems
14 of sufficient severity to have been called to the attention of
15 the Director will be reported.
16 122.33(b). This is the aquifer description problem
17 which you talked about at length yesterday, and I'm not going
18 to repeat the whole problem.
19 I did indicate that we have a proposal on that, and
20 I wondered why I couldn't find it yesterday. I know why now:
21 It's here.
22 . We would suggest that a second paragraph should be
23 provided, whereby the state could propose an alternate method
24 of describing aquifers or parts of aquifers, which are not
25 underground sources of drinking water.
-------
n
60
i'
1 For example, a non-aquifer might be described as
2 a zone which is productive of oil or natural gas, and the
3 same zone anywhere within one-quarter mile of such well, or
4 within one-half mile of such well. Some diameter around this
5 well.
6 This would permit the injection of water into a dry
7 hole that had been drilled along the margin of an oil and gas
8 pool, in order to force the oil back up into the oil reservoir
9 Still it wouldn't allow water to go into a zone which con-
10 tained fresh water that would be used for drinking water.
11 122.37, the area permit. I certainly think this is
12 much better than it was before. And if we would incorporate
13 Mr. Engle's suggestion yesterday as to wording which we will
14 propose, talking about within the same field or reservoir, I
15 think it would be even more improved.
16 122.43, talking about noncompliance reports. So
17 long as this applies only to major injectors and so long as
18 major injectors are not defined as Class II wells, we think
19 that's fine. We don't have any trouble with that.
20 123.8. This section sets out a number of sections
21 which state programs must have seven of these, including
22 paragraphs (g),(j) , (k) , (1) and (m) are inappropriate to New
23 Mexico. And I'll discuss those in turn when we come to
24 them.
25 123.9(b). The all encompassing wording of this
-------
61
O
1 particular paragraph would appear to require that the states
2 have drilling rigs/ logging equipment, well testing equipment
3 equal to that of the industry so that we could go out and
4 physically determine how many strings of casing are in a
5 particular hole, physically verify the nature of the cement
6 used, aid physically measure the injection volumes and pres-
7 sures, etc.
8 We presume what EPA is looking for is inspection and
9 surveillance procedures sufficient to protect underground
10 sources of drinking water. This paragraph should be re-worded
11 to that end.
12 The same statements apply relative to Section
13 123.9 (b) (1) .
14 123.10(b). The penalty provision of the regulations
15 has the potential for becoming one of the major stumbling
»
16 blocks preventing state acceptance of primacy for the program.
17 New Mexico law provides for a fine, not to exceed
18 $1000 per day, for each day of a violation and for each and
19 every act of violation of Division rules and regulations.
20 Such penalties are recovered in suits in district
21 court. Any change in this would require legislative action,
22 and legislators have often been reluctant to make such changes
23 just to comply with a set of federal regulations.
24 Now, for example—and this is not to a federal pro-
25 gram—but a couple of years ago we felt like our bonding
-------
1
2
3
4
5
6
7
8
9
10
11
12
-13
14
15
17
18
19
20
21
22
23
24
25
62
/•
requirements were no longer applicable to today's environment.
These v/ere set back in the thirties, and well costs have gone
up probably a hundredfold since that time.
Our blanket bond limit was $10,000. A one well
bond was $5000. T/Je went to the legislature to increase the
blanket bond up to $100,000, which in today's world we might
get ten wells plugged.
Of course, there are some operators with hundreds
of wells, so even that would be inadequate.
The legislature was not too receptive to that.
They felt like we were being nasty to our oil operators, and
so they cut that in half and they gave us a $50,000 bond.
And bonds aren't all that expensive. They're hard to get,
but they're not that expensive.
So I don't know how receptive they would be to this
sort of
MR. ECXERT: You have consumed in excess of the
allotted time, so if you could summarize the remainder of your
testimony.
MR. STAMETS: I would point out that I'm the only
oil and gas state representative on the docket today. I have
another page and a half.
If you won't permit me to finish, I will stop right
now. If you would, I would appreciate it.
MR. ECKERT: I can give you another ten minutes.
-------
63
^^
o
o
1 MR. STAMETS: Thank you.
2 In practice the fines assessed through the district
3 court have been such to be in compliance with the intent, if
4 not the letter of what you propose.
5 For example, in the period 1975 through 1976, the
6 Division collected fines of $500, $1000, $1500, $2000,
7 $2500, $4000 and $13,000 in seven individual cases. These
8 fines exceeded the statutory minimum, because more than one
9 violation was found when an inspection was made, and we were
10 able to prove that the violation occurred over a number of
11 days.
12 We've also found that the negative publicity re-
13 suiting from these court actions often serves as a greater
14 deterrent to violations than the fine itself.
15 And I don't say that lightly. I'm serious about
16 that. This is the situation that we've found to be true.
17 123.52(a)(4). The previous comments relative to
18 aquifer description are renewed here.
19 123.52(b)(2). We suggest that the approximate numbei
20 of mechanical integrity tests to be reviewed each year be put
21 in there, not the actual number, because we may want to pull
22 our inspectors off witnessing mechanical integrity tests and
23 put them, into areas where we've got real problems.
24 123.56(a)(7). The words "may have been caused or
25 affected by" in this sentence tend to confuse the intent of
-------
64
n
'^ '
1 the requirement, talking about ground water contamination.
2 What we need is some direction as to what you're really want-
3 ing there, whether we're trying to go on a witch hunt, or
4 whether we're trying to have something that's scientifically
5 appropriate.
6 I had trouble with the wording of the next para-
7 graph, 123.56(b). I'm certainly not clear on the intent
3 there.
9 124.6. Again this could cause us a lot of problems
10 in taking primacy. The Oil Conservation Division is a quasi-
11 judicial body. Its powers and duties, rules of procedures
12 and hearings, manner of giving notice, requirements for
13 records and rules, regulations and orders are all set out in
14 law.
15 Further, the Division has subpoena power over per-
16 sons required to testify, a rehearing procedure and a court
17 review procedure all spelled out in statutes.
18 The requirement that the Division issue a draft
19 permit prior to actually hearing the application in
20 question could jeopardize the position of the applicant and
21 the Division in any subsequent court action.
22 We are required by law to base our decision on expe]
23 testimony and evidence in the case, and the decision should
24 not have been made before such evidence is seen and such test:
25 mony is heard.
-------
n
65
»•
1 124.3. The same quasi-judicial objections apply
2 to the statement of basis requirements of the regulations.
3 124.9. At the June 23th meeting in Dallas, where
4 EPA personnel explained the consolidated permit program regu-
5 lations, indications were that Class II wells would not be
6 considered major UIC permit wells.
7 In this case fact sheets would not be required, and
8 we concur with this.
9 124.11 through 124.13. There should be a procedure
10 spelled out whereby the Director may set all UIC applications
11 for hearing without the necessity of having a separate public
12 notice and 30-day public comment period.
13 This would considerably shorten the time in which
14 an application could be handled by the Director and would
15 serve to hasten production of necessary oil and gas.
16 124.11. This section should provide the regional
17 administrator with the authority to accept public notice is-
18 sued in accordance with a procedure constituting legal public
19 notice under state law in lieu of the notice requirements
20 set out in Paragraph (a) and (b) with a provision for sending
21 j notice to persons on a mailing list and notice to appropriate
22 state and federal agencies.
23 Further, we feel it is inappropriate to issue draft
24 permits. We would suggest inserting the words "or proposed
25 permit" immediately following the words "draft permit"
-------
66
O
O
1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
-18-
17
18
19
20
21
22
23
24
25
wherever found in the section.
Further, we feel that the regional administrator
should be able to develop a memorandum of agreement with a
director to define major and minor permits, draft permits or
proposed permits under this section and require less strenuous
or voluminous notices relative to the minor permits, draft
permits or proposed permits.
124.12 (d). The statement submission requirements
of this section do not comply with our hearing procedure re-
quirements as set out in state law. No weight could be
given to such statements in reaching a decision on the permit.
124.13 through 124.18. Many provisions of these
sections are contrary to the hearing requirements of our state,
law. As we read these regulations, they do not appear to
apply to the state program, and we concur with this non-
Requiring all provisions of these sections in a
state program would be a serious impediment to New Mexico's
taking primacy.
124.19. The requirement that the Director respond
to comments submitted relative to any permit could have a
serious impact on such permits, if the same should be subject
to judicial review.
Again, the Division must issue such permits based
upon the evidence and expert testimony and not upon comments.
-------
v ;
1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
67
f
The issuance of response to comments by the director could
be considered by the court as cause for reversal or dismissal
of an order of the Division granting or denying a permit ap-
plication.
Thank you.
MR. ECKERT: Thank you, Mr. Stamets.
Questions from the panel?
DR. SKINNER: I have a question.
Thank you for that information on the penalties
that you have received over the last year. That's very help-
ful.
Could you please explain how in a particular in-
stance you've determined a penalty level. Is there a parti-
cular policy? Do you consider the economic gain by the
facility? What is the procedure?
MR. STAMETS: Well, I don't believe that you have
an economic gain factor relative to Class II wells, such as
you would say an industrial disposal well, or perhaps some of
the Class III wells.
It's difficult—it would be difficult to weigh
that sort of thing. Generally what we find is that something
has gone haywire, and the pumper has failed to notify the
home office and water has gotten out, and we find it before
the company nan does.
We usually seek the maximum fine. Sut oftentimes we
-------
63
1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
settle for a factor f a quarter or half, sometimes less, de-
pending on the situation, and what's happened.
DR. SKINNER: Were most of these penalties that you
mentioned obtained voluntarily, or did you have to litigate
to obtain them?
MR. STAMETS: We have to file in court to get
these. We've had probably 30 or 40 instances in the last six
or seven years, and only one of them has been resolved in
court. The rest of them have all been out-of-court settle-
ments .
DR. SKINNER: Thank you.
IIS. STRUCK: I had a couple of points of clarifica-
tion.
You had some comments on the certification require-
ments of 122.5. I wanted to give a little background of
what we're aiming for, so that maybe when you submit your
written comments—and the rest of you—
SEVERAL VOICES: We can't hear you.
MS. STRUCK: What we were aiming for in that re-
quirement was to try and pinpoint an appropriate level—
with enough responsibility to be able to vouch for the infor-
mation .
Therefore, the applicant—we could consider a more
flexible definition of that level of efficiency to account
for some regional differences. So if you have suggestions on
-------
69
r
that sort of thing, it would be helpful to us.
o
The other thing I wanted to point out, in terms of
g
the actual certification statement, there is flexibility for
the regional administrator to approve a certification state-
ment from the state program application that is slightly dif-
c
ferent, but nevertheless equivalent to what we ask for.
And that is provided in comment to 122.5.
o
0 Another thing I want to clarify was that you men-
tioned-some problems with this 122.9. I think, based on v/hat
you were telling us, that you review on different classes of
11 wells.
12
That's the kind of thing we were looking for. That
13
would meet the intent of our five-year requirement. What we
said was every five years that kind of review should take
place. Every three years that requirement would be met.
MR. STAMETS: I don't think that's what I meant.
17
I meant that we actually have an inspector in the field who
18
would physically go by the installation at least once every
19
three years and see if there's any problem.
20
If he would detect a problem, then we would pull th
21
whole package and give it the full-blown review. If no
22
problems were seen, we'd just go on and forget it until the
03
next three years rolled around, or until some problem oc-
24
curred.
25
MS. STRUCK: How would you describe that full-blown
-------
70
O
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
review?
MR. STAMETS: That would be going in and requiring
extensive testing of all of the wells within the area in and
around the v/ater flood project or near the injection well,
looking again at all of the information we had on wells in the
area and determining if there were any problem wells, seeing
if perhaps we had miscalculated on cement tops, if there was
some cause for this water to be where it wasn't supposed to
be.
MS. STRUCK: Another thing. I didn't quite your
comments on the schedules of compliance of 122.5. Could you
elaborate on that a little more?
MR. STAMETS: My basic feeling is that schedules of
compliance have no place in Class II. We follow a process,
which is basically this.
You come in with all the package on a request for a
new injection well or a project. You supply us with all the
information relative to wells within the area of review. We
review that.
We spot check a number of wells. We see which wells
in there are not properly plugged and abandoned. Generally
. i i
we issue you a permit, which you are authorized to use these
wells as injection wells.
However, you may not inject into wells A, 3, C, D,
E and so on until all wells within one-half mile, which we
-------
71
r
1 then list, have been properly repaired or replugged to the
2 satisfaction of the director.
3 The other option too is that—or shown to be not
4 a substantial hazard because occasionally operators will come
5 in and they've given evidence which shows the well is bad.
6 When they went out to make the repairs, they found out that
7 that evidence was in error, and the well was actually all
8 right.
9 MS. STRUCK: Thank you.
10 MR. MOREKAS: I have a question.
Mr. Stamets, I'd like to compliment you, sir, for
12 the extensiveness of your comments. We appreciate them, and
13. _||_ .w.e Jiop.e you will continue to provide them to us.
14 I have a couple of questions just for clarification.
15 You indicated that you'd rather have a proposed permit and not
-46—H—a—draf t pe-rmi^t-under-^arfe 12 4-.-—Gould—you— give us some—idea
17 as to what you see as the nuances there?'
18 MR. STATISTS: Let's say that we can go proposed per-
19 mit. And we have to advertise in the newspapers and send this
20 out to a mailing list. We could say something to the effect
21 in the advertisement that this would be case number so-and-so,
22 application of Jones Oil Company for a salt water disposal
23 well.
24 And the Division may issue a permit authorizing such
25 well to do this, do that and do the other thing. The hearing
-------
72
^
O
1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
would, be held.
To me that would be an indication of a proposed
permit. The applicant has proposed it. It says, "We're going
to consider it."
We could even add a statement in there that based on
the evidence presented, the application may be approved or
denied; or we might—you require us to tell everybody where
they can get additional information.
"I would assume that we would have a little fact
sheet on that. We'd say, "These are the things the Division
considers at a hearing", or "Based on this evidence we nor-
mally issue this type of an order", and "Under these con-
ditions—they're approved under these other conditions or
denied under these conditions and under these conditions they
come out modified."
MR. MOREKAS: I see.
MR. ECKERT: -Could I follow UD a little bit on
that?
Assume that you have published a notice like that
on a proposed permit, and you've notified the public about it.
Does the public have an opportunity to come to that hearing
and express their views on the permit?
MR. STAMETS: Yes, they certainly do. In fact, we
don't generally have many members of what you'd consider the
public at these hearings; occasionally a land owner will show
-------
1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
73
r
up and say, "So-and-so has been running a nasty operation out
there; I don't think you ought to let him do this."
Usually we don't see any of the public there.
MR. ECKERT: But as I understood your earlier re-
marks , they can come to the hearing, but they couldn't submit
their views in writing, is that correct? They have to be pre-
sent physically at the hearing?
MR. STAMETS: They could submit a statement, but we
can't give it any consideration.
MR. ECKERT: You could give it consideration if they
came to the hearing?
MR. STAMETS: If they came to the hearing and repre-
sented themselves.
Now, in New Mexico you cannot represent somebody
else. You cannot represent a corporation without an attorney.
But you as an individual, as a land owner, as an interest
owner—I presume as someone who drinks the water which would
be affected could come in and present testimony and subject
yourself to cross examination for development of the record,
which would then be subject to court review to determine
whether or not the Commission had made the proper determina-
tion in the case.
The judge then v/ould determine whether or not we hac
given proper weight to what you testified to.
MR. ECKERT: When you say—in this type of hearing
-------
74
r
1 when the decision is made by the board or commission, is that
2 correct?
3 MR. STAMETS: Yes. The whole process is that nor-
4 mally we schedule these things before a Division examiner.
5 If anybody affected by this is not happy with that, they have
6 to ask that it be heard de novo before the commission, which
7 is a three-member board.
9 The commission then hears the case. And another
9 order is issued.
10 If you're still not happy, you have to ask for a re-
11 hearing.
12 If there's a rehearing, and you're not happy or if
13 your rehearing is denied, then you may go to district court.
14 MR. ECXERT: Does the state take a position in
15 those hearings?
16 MR. STAMETS: Yes.
17 MR. ECKERT: Does the state in formulating its
18 position at those hearings take comments from members o£ the
19 general public?
20 MR. STAMETS: I don't know. After the meeting in
21 Dallas on the 29th, I went back and mentioned this situation
22 as it came up relative to Illinois. And we have been quite
23 busy with NGPA filings and stuff from our own legislature—
24 you know, "Please tell us in 40 words or less what you've been
25 doing for 35 years", and all this sort of stuff. And it's jus
-------
75
1 sort of laying out there. We're thinking about it.
2 And no one gave me an answer to that. I don't think
3 right now ... no, I'm firmly convinced at this point if you
4 were not a party to a proceeding, you could not be a party to
5 the court action.
6 However, if you were a party to the proceeding, I
7 don't believe there's any prohibition to your entering your
8 appearance in the court action. You could ask—petition for
9 it to be a part of the case.
10 MR. ECKEHT: OK. VIell, I'm less concerned about
11 whether or not the members of the public could get judicial re
12 view after the state had acted, but whether or not the state
13 could consider itself—that is, before going into the hearing-
14 comments from members of the general public; in other words,
15 some means whereby the director or whoever represents the
16 state at the hearing could consider informal comments from
17 the public in formulating its position or the state's position
18 before the Division examiner.
19 This might be a way—
20 MR. STAMETS: I'm confused. Are you talking about
21 court actions or actions—
22 I-IR. ECKERT: What we're trying to do here is to fin<
23 a way for the public to participate informally without having
24 to go through the lawyer-oriented type of procedures that
25 you've described.
-------
76
tD
1 And if they participate by advising the state as to
2 what position they think the state ought to take, that might
3 be an acceptable alternative. I was asking you to address
4 yourself to that.
5 I1R. STAMETS: Well, let me say that under those cir-
6 curastances, we have exactly the same provisions that apply to
7 EPA after the regulations have gone into the book for notice,
3 if you propose some regulations.
9 Officially you can't listen to me, but I know you
10 do. Officially we can't listen under those circumstances, but
11 you can't come in and tell me something without me being af-
12 fected by it.
13 It may simply just stimulate the examiner to ask a
14 particular question about an operation. But the permit has to
15 be based on the evidence. That evidence has to be in the re-
16 cord, has to be before us.
17 If we do otherwise, the court will throw us out.
18 MR. ECXERT: Any other questions?
19 MR. MOREKAS: I have perhaps a complicated question,
20 but it need not be answered at this point. If you could give
21 us in your follow-up comments some data on the number of per-
22 mits issued and the staff committed to that process,. so that
23 we have an idea what the workload is, say on a given year; if
24 that could be submitted, we'd appreciate it.
25 And also, if you could forecast what sort of impact
-------
1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16-
17
18
19
20
21
22
23
24
25
77
i-
the consolidation of the RCRA and UIC would have on your
staff and the additional resources that you see that you might
need.
MR. STAMETS: All right.
MR. SCHNAPF: I'd like to make a couple of observa-
tions.
As far as signatories, under these regulations you
could delegate that authority to sign the application, sign
whatever other documents that are necessary to more than one
person, which is something I think you indicated would be de-
sirable.
As Heather pointed out, the certification language
the state uses could be significantly different than the EPA
language, so long as it had the same effect.
That leads me up to a question. You pointed cut,
~butli yesterday and: today T~tiiatr^these forms often come in in
the same form as a production data form. And you pointed out
that sometimes the guy in the New York office certifies
these, is the guy in the New York office going to be familiar
enough with the compliance information on the form to be able
to certify to its accuracy?
MR. STAtiETS: He'd do as good a job as I would on
it.
No, no one can unless you were out there and you
every barrel go in the ground yourself, unless you read the
-------
73
1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
pressure gauges yourself, then of course, you don't. But as-
suming that we all believe in the chain of command, that I
send somebody to go do something, and then he sends five guys
to go do something and they all do it, yes.
MR. SCHMAPF: The other question I had. One of your
comments was on 123.3, which is a long list of requirements
for state programs. You never followed up on one of them,
which is the confidentiality section.
I was wondering if you could specify what you're
concerned with there.
Let me say what 15(b) requires. It requires that
the state program cannot hold as confidential the following
information: the name and address of the permittee, the
permit itself, any draft permit, any fact sheets or comments
received with respect to the permit and any information on
the applications in the case of the UIC programs.
'MR. STAMETS: I didn't indicate that we had any
problem with confidentiality. Our only problem would be if
you made us hold something confidential. Everything that we
have is non-confidential.
Everything that we have is public and it's available
to anyone.
If I indicated there was a problem with that, I'm
sorry, I didn't intend to.
MR. SCHNAPF: OK. Let me take a point. These are
-------
fC-
1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
79
r
requirements for state programs which are minimal. If you
want to not hold something confidential, you're certainly wel-
come not to.
A transfer of ownership thing, I would view that
as being a more stringent requirement of state law. But if
you wanted to hold that period open for more than 30 days, I
don't think these regulations would preclude that.
MR. STAMETS: It's just one of those things 30
days doesn't need to be in there.
MR. SCENAPF: TJe want it for ourselves—for EPA's
operational program. We want the states to hold it open for
at least 30 days. If they wanted to hold it open for ever,
that's all right.
MR. STAMETS: Perhaps you could put another sentence
in there which would limit the administrator v/ho handles this,
to 30 days.
That's just one of those things that causes a clash
in our operation. We don't need it.
.MR. SCHNAPF: I'd like to thank you very much for
your comments.
MR. BALTAY: If I may, two more questions. Could
you clarify for r.e the point you were driving at with respect
to the dual compliance schedules. As I understand that parti-
cular section, that is when an applicant comes in and tells
you that he chooses to close or terminate, rather than to come
-------
30
1 into compliance.
2 MR. STAMETS: OK. If I understand that correctly,
3 what you're looking at is a situation where an applicant just
4 cannot go on forever in non-compliance and avoid compliance
5 by saying, "Yes, I'm going to close down", and then he doesn't
g And I.felt, reading it, that it called for more
7 power on our part than we have without due process. We do
8 have this power, yes; and we exercise due process.
9 We can tell operators to shut down, and most of them
10 do. But once in a while, you'll get a rogue in there who re-
11 sists and says, "No, I'm not going to."
12 And in that case we would have to resort at least to
13 an emergency order, which provides for a hearing within 15
14 days. And then after the hearing, we could issue another
15 order, which would go on.
16 What I'm saying is yes, we do have that power, but
17 not just without taking due process.
18 MR. BALTAY: Even if he declared that he would choos
19 to close—that was his choice, that was what he wanted to
20 <2o—
21 MR. STAMETS: I think that's right. I don't know
22 any way you could avoid it. Because when he does not do what
23 he says, we have this problem all the time. An operator
24 files and intends to drill. He's going to run 1000 feet of
25 casing.
-------
81
r
1 He runs 500. Well, he has already done it; he has
2 already lied to us. We can tell him to shut down his opera-
3 tion. He says no.
4 Well, then we have to issue an order. We may have
5 to go to court to enforce it.
6 MR. ECKERT: That's a little bit different from the
7 situation that this regulation was designed to get at.
8 I will frankly say that it was the Clean Water Act
9 that we were concerned with and trying to get at.
10 It may be that that question would never arise.
11 Are there circumstances in which you would issue a permit to
12 someone who is not currently meeting requirements by allowing
13 them to inject, but telling him that he would have to meet re-
14 quirements later on? Would that ever arise?
15 MR. STAMETS: Well, I hope not. It has been done.
16 We had a situation recently where an operator came in to put
17 in a very shallow project/ about 600 feet.
18 The area is a very, very old area; and-a number of
19 the wells in there are plugged marginally. There's no fresh
20 water in the immediate vicinity.
21 We issued a permit which allows him to inject. But
22 we are going to inspect this, and if there is any problem,
23 then we will require him to make repairs or shut down. In a
24 case like that, that pretty well fits what you're talking
25 about.
-------
82
r
1 ' MS. STRUCK: I would just like to clarify the re-
2 cord that the alternate schedules of compliance are not re-
3 quired to be used by states in operating their programs under
4 123.3.
5 Only paragraphs (a) and (b) of that section apply
g to states. And that does not cover the alternate schedules
7 concept.
g MR. STAMETS: Are you talking about schedules of
9 compliance in general?
10 MS. STRUCK: I-To. Schedules are applicable to
11 states where it's appropriate to use them. But the idea of
12 having alternate schedules for a permitee that seeks to
13 terminate operations, rather than meeting compliance require-
14 ments is only applicable to EPA-operated programs.
15 MR. STAMETS: OK. It was not clear to me that that
16 was the case.
17 MR. 2CKERT: Additional questions from the panel?
18 (Mo response.)
19 MR. ECKERT: Mr. Stamets, thank you very much for
20 a very useful and illuminating presentation.
21 MR. STAMETS: I certainly appreciate your giving me
22 the full amount of time. Thank you.
23 MR. ECKERT: The next speaker is George A. Anderson
24 Manager, Forest Improvement Department, Brunswick Pulp Land
25 Company.
-------
33
1 Ilr. Anderson, would you begin by telling us whether
2 you would be willing to entertain questions at the end of your
3 presentation?
4 MR. ANDERSON: Certainly. I'll do the best I can.
5 MR. ECKERT: Thank you, sir.
6 STATEMENT
7 BY
8 GEORGE A. ANDERSON
9 MR. ANDERSON: Let's go above ground for a while
10 and talk about silviculture. I'm here particularly to talk
11 about,-the dredge or fill program under the Clean Water Act,
12 as this program is operated by states with approval by EPA.
*3 Although I am Manager of Forest Improvement for
14 Brunswick Pulp Land Company at Brunswick, Georgia, I would lik<
15 your permission today to represent the Forest Farmers As-
^ sociation. I have been requested to do this by its executive
l^ vice president, Mr. J. Walter Myers, Jr., Atlanta, Georgia.
*° I am a member of this organization.
1^ .The Forest Farmers Association is an organization
20 of private timberland owners, primarily small non-industrial
21 owners from the 15 southern states where most of the privately
22 owned forestlands exist in this country.
23 In these states 75 percent of the commercially
24 important forests are owned by approximately 2.5 million pri-
*•* vate landowners. And that's why we are deeply concerned about
-------
84
«b
1 some of these regulations.
2 I'm a professional forester who has worked in
3 southern forests and wetlands since 1940. My experience has
4 given me continuous contact with the small, non-industrial
5 landowner. I know how he feels. I know his problems. My
6 comments reflect his concerns.
7 First, I would like to say that we commend you for
g holding this hearing and also thank you for the opportunity
9 to testify here.
10 Now, to get down to our concerns. Part 122.3(e)
11 contains definitions for the activities that are exempted
12 under Section 404 (f) (1). The definition for minor drainage
13 is cause for considerable concern-*—It will always be-cause
14 for uncertainty on the small landowner's part, if not ours.
15 The typical small forestland owner will always have
16 diM±cnilty""±ri; "determining wfcin3fr~^Kre^!^n~d~±s~~a part of the
17 waters of the United States. I'will myself.
18 On the other hand, he will know what any given size
19 ditch will do to any specific wetland, whether it be in the
20 uplands or in the waters of the United States. He will have
21 no difficulty in understanding the language restricting drain-
22 age in Parts 123.107 (a)(1) or as in 123.07(b) and (c), or
23 in Section 404 (f) (2) .
24 These words we all understand, whereas your present
25 definition of minor drainage is really confusing.
-------
85
*"
1 Now, you do a beautiful job of telling what minor
2 drainage is not. But you do a very poor job of telling what
3 minor drainage is. It's too confusing.
4 In the first place, drylands themselves do not have
5 excess soil moisture. You must be referring to the wetlands
g in upland or dryland areas.
7 Your definition in effect really only exempts ditche
8 in areas that never did fall within the scope of Section 404
9 and really, therefore, needs no definition.
10 Your definition denies a landowner the right to
11 quickly install small ditches in bottomlands where water may
12 become impounded by an abnormally high seasonal flooding or
13 by beavers.
14 Here quick action is required in order to save
15 valuable timber which will die unless relieved of impounded
16 water. This is not a modification of a wetland and should be
17 exempted.
18 Now this would occur in second bottoms or similar
19 sites and never, or very seldom (I don't know of any cases
20 where anyone has tried to drain true hardwood swamps or your
21 gum cypress swamps). And that's what everyone seems to think
22 that we do, but we don't.
23 How, the control, we feel, should not be on where
24 one digs a drainage ditch, but rather it should be based on
25 the effect of the ditch on wetlands within the waters of the
-------
86
»•
1 United States.
2 A suggested definition of minor drainage could be
3 simply as follows:
4 "Minor drainage means construction and maintenance
5 of water control structures that will not signifi-
6 cantly modify any wetlands included in the waters
7 of the United States and that meet the requirements
8 of Section 404 (f) (2)."
9 That's your recapture clause which gets you anywhere
10 if you do certain things.
11 Now, we are—so much for drainage. I want to jump
12 to roads, your BMP's for road construction and road crossings
13 over wetlands.
14 We are also concerned about some of your baseline
15 provisions proposed for dredge' and fill in wetlands associated
16 with construction of road crossings. As we understand the
17 law, road crossings in wetlands must be constructed according
18 to BMP's developed for Section 404.
19 Road construction outside of the wetlands that does
20 not result in dredge or fill within any wetland would, if ther<
21 were nonpoint problems, be built according to BMP's developed
22 under Section 208.
23 If this is correct, then we feel that the baseline
24 provisions—you have 17 of them listed there—we feel that
25 numbers lf 10, 11, 12, 13, 16 and 17 are not only unnecessary,
-------
37
»•
1 but improper and entirely out of context.
2 Many states have already developed good BMP's for
3 road construction in their 208 plans. These are site specific
4 BMP's. They are practical, and they will work. Now you can-
5 not make a nationwide BMP work, I don't see how you can.
8 And that's what you're trying to do here in these particular
7 BMP's.
$ We appreciate the difficult problem you have had in
g promulgating these 404 regulations and just hope that you can
10 see your way clear to reconsider minor drainage and the above
11 road construction baseline provisions.
12 It would certainly make this whole thing simple to
13 understand and more practical to implement, and -I guarantee
14 y°u will not lose any of your wetland protection.
15 Thank you.
16 MRr-ECKEKT-:—Thank you very much, sir;
17 Questions from the panel?
18 MS. PETERSON: I'd like another reiteration of the
19 BMP's that you feel are unnecessary—
20 SEVERAL VOICES: We can't hear you.
21 MR. ECKERT: The question was would you reiterate,
22 sir, the BMP's for road construction that you feel would be
23 inappropriate.
24 MR. ANDERSON: Number one, logging in streams is
25 prohibited. That's covered under all your 208 plans. That
-------
83
r
1 has nothing 'to do with road construction. What does that have
2 to do with building a road crossing? I mean it's unnecessary
3 here.
4 And then number ten, soil losses shall be held close
5 to geological mix through careful selection of logging and
6 farming methods. That's another 208 BMP.
1 I've served on two state committees and helped write
8 silvicultural plans for-iarea-wide plans for Florida and
9 Georgia. And all these things are covered in our 203 plan.
10 Number 12, number 13, number 16 and number 17, and
11 I won't go into why.
12 You've almost got it, but not quite.
13 MR. ECKERT: Thank you. Any more questions?
14 (No response.)
15 MR. ECKERT: Mr. Anderson, thank you very much.
16 We appreciate your coming today.
17 The next speaker is Joseph Crockett, Manager of
18 Forest Technology, Westvaco. .
19 May we ask questions at the conclusion of your
20 presentation, Mr. Crockett?
21 MR. CROCKETT: That will be fine.
22 STATEMENT
23 BY
24 JOSEPH CROCKETT
25 MR. CROCKETT: My statement will relate to the
-------
39
o
1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
proposed Section 404 state program regulations.
My name is Joseph M. Crockett, and I am manager of
Forest Technology of the Timberlands Division, Westvaco
Corporation. I am a professional forester with 25 years of
experience in forest management.
Westvaco Corporation is a major producer of paper,
packaging and chemicals . We have over one million acres of
timberlands in 12 states that are representative of growing
conditions from the Mississippi bottomlands to the mountains
of West Virginia.
At the outset I want to emphasize that our company
recognizes and supports the use of practical, economically
feasible forest management practices which -maintain -and
conserve soil and water resources that are fundamental to
long-term land productivity.
certain of
the 31-lP's which have been proposed for forest roads in EPA's
Section 404 state program regulations and of a proposed de-
finition of minor drainage in Part 122. 3 (e).
With reference to the proposed BMP ' s for forest
roads in 123 .107 (a) (5) , we strongly disagree with certain
provisions that improperly address geological soil wasting
and other nonpoint sources of pullution; that prescribe silvi-
cultural cutting methods instead of promoting site-specific
decisions by professional foresters; that obstruct and confuse
-------
1
2
3
4
5
6
7
g forest road construction across streams and wetlands.
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
90
r
development of state 208 2MP's for control of transported
runoff and thermal pollution; and that propose overlapping
controls for pesticides which are already adequately con-
trolled under FIFRA regulations.
v7e believe that all of the provisions just enumerate1
are inappropriate and unnecessary to control environmental
impacts from any discharges of fill material resulting from
Furthermore, these proposed nationwide provisions
run counter to objectives of the 203 nonpoint silvicultural
planning programs at the state level. There the goal has been
to implement BMP's that have been developed by local agencies
having the necessary technical knowledge to address specific
nonpoint water quality problems.
Taking into consideration the almost infinite set
of forest conditions that exist over the 12 states where we
operate, it is our recommendation that EPA eliminate from pro-
posed Parts 123.107(a)(5), 1 through 17, those BMP's that do
j not specifically relate to regulation of discharges of dredged
or fill material.
That would be namely BMP's 10, 11, 13, 16 and 17.
The striking of these BMP's would clarify the requirements we
would have to meet to qualify for an exemption under the
Section 404 permit program, and would more clearly conform
with Congressional intent to separate point and nonpoint
-------
1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
91
sources as expressed in the Corps of Engineers' July 19,
1977 nationwide permit regulations.
Moving from the subject of BMP's for forest roads,
we wish to offer comments regarding the rules and definitions
of minor drainage proposed in Parts 122.3 (e) and 123.107(a) (1)
A significant acreage of our timberland is composed of bottom-
land hardwoods to which we must apply management practices to
maintain and enhance tree growth and subsequent fiber yield.
The ability to remove excess water from these areas
is often necessary to accomplish normal silviculture and
harvesting operations; consequently, limited minor drainage
is sometimes required to open filled-in waterways and hasten
removal of water impounded by flooding.
We are concerned that the "minor drainage" definitio
restricts the practice to drylands or uplands where drainage
isn't necessary, and that it would impose permit requirements
for a similar practice in our- bottomlands even though we con-
tend that our bottomlands are not a "water of the United
States", and not subject to Section 404 permit requirements.
We propose that minor drainage be excluded from the
normal farming, silviculture and ranching exemption clause
without further definition or special definition, subject to
the provisions that dredge and fill discharges do not signi-
ficantly alter, divert or reduce the flow (this is similar to
wording that you have) and circulation of water through a
-------
«b
1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
92
r
wetland area, nor reduce the reach of wetland, or convert it
to a nonforest use, which we think is the basic intent of
these regulations.
The determination of whether a forested area is or i
not a water of the United States often requires considerable
experience and technical knowledge. For this reason we be-
lieve it would be better to focus on the impact of dredge and
fill on wetlands and not attempt to include and define a
minor drainage exemption that would be applicable to the almos
unlimited forestry conditions that occur nationwide.
In summary, we believe this language would allow
us to practice all normal and necessary forestry activities
under the general exemption section, but would contain the
necessary restrictions to prohibit a change from forestry to
some other use not consistent with maintaining wetland
character.
We respectfully request your help in revising these
proposals to clarify and simplify BMP's and definitions and
to prevent unnecessary and costly permitting of our acti-
vities .
I appreciate the opportunity you have provided me
to present our company's position. Thank you.
MR. ECXERT: Thank you, Mr. Crockett.
MS. PETERSON: I appreciate your comments on the
BMP's. I would like to have some more detail on your concern
-------
93
•o
i
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
with. BiMP No. 13 on borrow materials, the one that says
"Borrow materials shall be taken from upland sources where
feasible."
MR. CROCKETT: With all those BMP's that I enumerate
in our opinion they're adequately covered under 208. They
have no part in the 404 program, as far as I can determine.
They only complicate the exemption.
It also speaks of transport of overland material,
which again is clearly a 208 provision.
MR. ECXERT: Further questions from the panel?
(No response.)
MR. ECKERT: Thank you, Mr. Crockett. We appreciate
your comments. _ ._ ._ ___
Next, Paul Seals, Assistant General Counsel, Texas
Department of Water Resources.
STATEMENT
BY
PAUL SEALS
MR. SEALS: Again, for the record, my name is Paul
Seals. I'm an attorney with the Texas Department of Water Re'
sources.
Just brief information concerning the Department.
It has jurisdiction for the re'gulation of discharges of waste
the subsurface disposal of industrial and municipal wastes
and the regulation of industrial solid waste in the state of
-------
1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
94
»•
Texas.
First, I'd like to commend EPA for its efforts in
attempting to consolidate the various regulatory programs in
one place. On the whole, the proposed regulations provide
for the comprehensive control of the various waste streams
and methods of treatment of disposal.
They also provide the needed flexibility in consoli-
dating the permitting process. My comments will briefly ad-
dress only a few of the areas of concern to the Department.
In addition, the Department will be submitting these and other
comments and recommendations within the permit period.
First, and probably least important, is the
definition of discharge monitoring, which represents a change
from the proposed NPDES regulations published in 1973. This
new definition requires the use of EPA uniform national
forms.
We would recommend that states like Texas, which
have developed the self-monitoring systems, that forms over
many years be given the flexibility to use their own forms
which—and subject to approval by EPA—that they be consistent
with the national forms.
Secondly, I would like to briefly address Section
122.63(a), which has been reserved in the proposed regula-
tions. Mr. Bob Silvus, who will follow me, will also have
some comments concerning this proposal to incorporate as
-------
1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
95
r
enforceable parameters pollutants included in the application
form, but not in technical issue permits.
lie appreciate the problem that SPA apparently per-
ceives, but would suggest that the spending of limited man-
power and financial resources to administer and enforce such
requirements may not be appropriate.
Other alternatives should be considered, which would
still protect the environment from the unauthorized discharge
of hazardous or toxic pollutants.
In Texas for many years now the Department and its
predecessor agency, the Texas Water Quality Board, was faced
with similar problems and developed a set of regulations for
both inland and coastal waters, establishing new form ef-
fluent standards for certain hazardous waste streams.
These regulations set out specific effluent con-
centrations for each pollutant applicable to both municipal
and industrial discharges at all times, unless a different
effluent limitation is imposed in the permit.
If from a review of an application, pollutants cover
by the regulations it's apparent will be discharged, these
specific effluent limits will be imposed. The burden of proof
on going forward or demonstrating a different limitation is
placed on the applicant to prove up a variance from the
limits established in the regulation.
Me would recommend that EPA consider the alternative
-------
€D
96
1 of establishing similar uniform effluent limits for toxic or
2 hazardous pollutants consistent with Section 307.
3 Of course, we realize this is no easy task, trying
4 to reconcile toxicity and treatability. But I think it may
5 prove to be an exercise in which you'd only have to fight the
6 battle once, instead of many times when you issue a permit.
7 We sincerely doubt that the magnitude of the
8 analytical work required in each permit application to inven-
9 tory pollutants in a discharge justifies what little benefits,
10 which would be derived from the testing to assist in making
11 more effective quality management decisions in the permit pro-
12 cess.
13 Next, I'd like to address another small point. And
14 Mr. Stamets from New Mexico briefly discussed it. This
15 point has been the subject of much discussion in some of the
16 public hearings conducted by the. Department in deciding wheth<
17 or not to grant or deny permit applications.
18 This may be of greater importance in the future
19 with increased public participation in the hazardous waste
20 management program under RCRA. Section 123.3(n) incorporates
21 Section 124.11, which establishes requirements for public
22 notice of draft permits.
23 From an effective public participation standpoint,
24 perhaps it would be better in the public notice to emphasize
25 not so much the draft permit, but the permit application, on
-------
«b
o
97
r
1 the tentative determination to issue or deny the application.
2 Now we have received repeated criticisms—this meaning the
3 Department—that we have already made up our minds, and that
4 the public participation program merely rubber stamps a prior
5 determination by the Department, the burden of proof ef~
6 fectively having been shifted from the applicant to the
7 protestants.
3 My observation of EPA NPD2S information-type public
9 hearings held on permits in the region suggests that, in fact,
10 its hearings—the types of evidence which is received and' the
11 type of information accepted predominantly emphasizes the
12 application and not so much the draft permit, with the burden
13 being placed on the applicant to prove up his application.
14 i Perhaps the regulations should be adjusted to re-
15 fleet this apparent practice.
16 Another comment concerning the underground in-
17 jection program. Section 122.42 and other similar provisions
18 dealing with the relationship of P.CRA to UIC, just from a reac
19 ing—and perhaps it's a misreading of the various sections--it
20 seems to suggest that these regulations are tending to en-
21 courage the underground injection of hazardous wastes because
22 of different financial requirements.
23 Again, perhaps I'm misreading this and perhaps a
24 simple addition of some comments or notes to the regulations
25 to specify the relationships and financial requirements for
-------
98
r
1 disposal wells and other hazardous waste management facilities
2 including the necessary above-ground pretreatment facility
3 with a disposal well, might clear this point up.
4 Finally, I'd like to address probably the most
5 significant provision in the proposed regulations as far as
6 the approval of state programs is concerned.
7 This deals with Part 123.10 relating to the minimum
8 state enforcement requirements. These provisions will prob-
9 ably form the biggest hurdle in states developing approvable
10 programs.
11 With respect to the level of fines under the NPDES
12 program, it's apparent that entirely too much water has gone
13 under the bridge-since 1972 to adjust the minimum levels for
14 this program.
15 However, for RCSA and UIC EPA should look to its
-t6 experience—i^i~deiegation-a-£ter its—by- sta-tes^under—the—NPBES-
17 program. You see some of the problems with the amounts of
18 fines that this has resulted in, as far as approving state
19 programs.
20 In addition, the requirements of 123.10 concerning
21 the level of fines and the various methods of—various alter-
22 native enforcement approaches may be consistent with the
23 statutory requirements of both RCRA and UIC, but I don't feel
24 that they're mandated by the statutory provisions.
25 I think if you looked at the UIC, Section 1421 and
-------
99
t"
1 Section 3006, my reading of both of these provisions—I feel
2 that neither one of these mandates an equivalent level of
3 penalties.
4 In UIC, 1421, there is really no specific reference
5 to enforcement requirements. It's vague on the subject and
6 merely suggests that states must develop effective programs to
7 prevent underground injection which endangers drinking water.
8 Under RCRA, 3006, it's interesting in that Subsectio
9 (b) of 3006 uses the word "equivalency", but it doesn't use
10 it in the section dealing with adequacy of enforcement. And
11 in (b)(3) it merely says that such state's programs provide
12 adequate enforcement of compliance with the requirements of
13 the sub-title. _ ___ .. .
14 And in closing I would just like to say that with
15 specific regard to RCRA, this requirement concerning equi-
-16 va-leney-o£—fines appea-r-s—to—be a-s&b-ft from-the proposed
17 regulations—3006 regulations that were promulgated in 1973;
18 and we would recommend that EPA consider going back to the
19 sort of general requirement of the proposed regulations.
20 I'd be more than happy to answer any questions.
21 MR. ECKERT: Thank you, Mr. Seals.
22 I have one brief one; and that is—you don't have tc
23 respond to this now. But we have heard froia other states thai
24 the penalty amounts are, in their view, excessive. It would
25 be very useful for us to know—and we'd like to hear, either
-------
100
r
1 in written comments or today—if not the amounts of the
2 federal statutes, then what amounts. We believe that we prob-
3 ably must establish some bottom line. And we'd like to know
4 what, in your view, that bottom line should be.
5 MR. SEALS: Well, I'm not real sure if you need to
6 establish a bottom line. I think many states, like Texas,
7 have ongoing programs. And I think it should not be that dif-
8 ficult of a burden for the regional offices or Washington to
9 review the kinds of programs the states have been engaged in
10 and the type of enforcement actions they have engaged in, and
11 whether or not the level of enforcements that they have en-
12 gaged in has resulted in a depreciable ... or effective pol-
13 lution control program.
14 Whether it's $1000 a day or $500 a day.
15 MR. ECKERT: Well, how about $10 a day?
16 • MR. SEALS: I think that would be a little
17 Really, it doesn't appear to be that difficult a burden, put
18 some discretion on the part of regional administrators or
19 Washington to look at exactly what the states have been
20 doing, especially the states that have been actively engaged
21 in enforcement of the various permits.
22 -4R. ECKSRT: That's what we'd like to ask your help
23 on. I7e'd like you to tall us what your state has been doing,
24 and we'd like for you to tell us whether—you think that's th
25 right level, v.'hether smaller dollar amounts are needed or
-------
o
101
••
1 whether it suffices.
2 MR. SEALS: We'd be more than happy in our comments
3 to suggest some -tilings. But it nay be very similar to our
4 existing statutory limits.
5 MR. ECKERT: ivhat is the existing statutory limita-
3 tion?
7 MR. SEALS: OK. For the Clean Water Act, there
8 probably isn't any problem. We passed in 1977 statutory
9 changes bringing the civil penalties up to $10,000 a day and
10 criminal penalties up to $25,000 a day.
11 Under the solid waste act there are no criminal
12 penalties, and there's a civil penalty limit of $1000 a day.
13 And under the UIC program, there's no criminal penalities,
14 but a $5000 a day civil penalty.
15 MR. ECKERT: Any further questions?
16 MR. SCHHAP?: I'm a little bit unclear as to 122.68
17 (a). I was wondering if your comments were giving any con-
18 sidsration to Part III—
19 MR. SEALS: Mr. Silvus, who's going to follow me,
20 will probably give the same kind of comments.
21 DR. SKINNER: I have a question to add to the things
22 requested in your written comments, if you would submit—also
23 if you could provide information on the penalties that you
24 have recovered in the past. That would be very helpful.
25 MR. ZCKERT: Any further questions?
-------
102
r
1 (No response.)
2 MR. ECKSRT: Thank you very much, Mr. Seals.
3 Uext is Mr. Robert Silvus, Hsad, Industrial Waste
4 Water Unit, Texas Department of Water Resources.
5 Mr. Silvus, welcome. May -we question you at %he
g end of the presentation?
7 MR. SILVUS: Yes.
g STATEMENT
9 BY
10 ROBERT SILVUS
11 MR. SILVUS: I'm Bob Silvus. I'm an engineer with
12 the Texas Department of Water Resources.
13 I'm going to comment on the application forms them-
14 selves and related information. My comments are intended to
15 supplement the comments of Mr. Seals and Mr. Mullican.
16 The general information form one, we have reviewed
17 the general information form and believe that it adequately
18 covers the areas where information is needed.
19 We would suggest that the form and instructions
20 should substitute more specific terms for the word "facility"
21 which could be read in different sections to be company head-
22 quarters, manufacturing plant, waste water treatment plant,
23 injection well location or solid waste site.
24 On the rIPDSS Form 2-B, which concerns concentrated
25 animal feeding operations, we offer the following comments.
-------
103
•O
'O
1 We feel that the form is too technical for the intended ap-
2 plicants and should be simplified.
3 We feel that the form is too crowded and that it
4 night help to move the aquatic animal section to the back of
5 the form.
g Significant questions have not been included, such
7 as those pertaining to the disposal methods for contaminated
3 water collected from the operation (We're basically talking
9 about dairies and feedlots here), descriptions of waste water
10 retention facilities and a list of pesticides used.
11 In Section II.C - If the applicant indicates that
12 he does not have a runoff control and diversion system/ then
13 it would seem appropriate to inquire as to when he will build
14 one and what it will consist of. The form currently sends
15 him to the "Certification" section.
16 We are attaching to our written comments the form
17 used by the Department, with the suggestions that the informa
18 tion included in this form be included in the NPDES form,
19 since the person preparing the permit will need the infonaati
20 shown in the state form.
21 In the NPDES Form 2-C, we have the following con-
22 ments. Section l.A and B - There are many chemical plants in
23 Texas which contain processes, some of which are covered by
24 guidelines and some of which are not covered. It is suggeste
25 that a third alternate—a little block at the top of the thin
-------
104
"Yes, in part", be added to 1A, and that the wording in 13
2 be revised accordingly.
3 IB does not deal adequately with the question of
4 confidentiality of data, we feel. Since no data submitted
5 with the application is to be regarded as confidential, how
can a business protect itself from competitors who wish to
7 know processes, production capacities, etc.?
8 It is suggested that the application and instruction:
9 make provision for later submission of confidential data
10 where the person drafting the permit finds it necessary.
11 Section III.A.1C - Storm water runoff information
12 should include attachments, including rainfall data and the
13 _ __s_izes_ of process areas and other areas with potential for
14 contaminating rainfall.
15 In Sections V and VI, the requirement to analyze for
-16—H—124—toxic-pollutants-on each--ou-tfai^and-^to—use-^fehese-as—a
17 basis for future enforcement does not seem to us to be very
18 practical because of laboratory availability, laboratory cost,
19 transient effects which may be detected in a single sample
20 or may not be detected, enforcement costs and permit drafting
21 problems.
22 In. fact, few can predict, based on a single sample,
23 whether or not a material will vary more than five times its
24 average when we're looking in the 10 to 100 parts per billion
25 range, which is contemplated by the guidelines.
-------
105
1 The effect of, one, needing an average number and
2 two, a factor of five times the average number implies that
3 each applicant will have to gather sufficient data so that
4 statistically valid numbers will be submitted in the applica-
5 tion.
Q This is a large cost with very little benefit
7 either to the applicant, the government agencies or the public
g It is suggested that EPA revise its instructions so
9 that only the specific pollutants for the various processes,
10 which the EPA guideline division includes in the guidelines,
11 be analyzed for and entered in the application.
12 That is instead of doing the full scan of 126-plus
13 for each outfall, only those which you would expect to find
14 there would be analyzed for.
15 It is further suggested that rather than have the
16 application serve as a basis for enforcement for pollutants
17 which are not normally expected to be in the effluent, the
18 EPA set a national standard in terms of concentration for
19 each pollutant and apply these standards to all effluents.
20 Of course, any hazardous pollutants which the company
21 has reason to believe to be in the effluent in significant
22 quantities, should also be included in the application.
23 The results of the above suggestions, as they con-
24 cern the application, would be as follows:
25 1. An applicant whose plant was entirely covered by
-------
D
106
r
1 guidelines would analyse only for those pollutants listed in
2 the guidelines or known to be in the waste water.
3 2. Only those applicants with plants in the subject
4 industries which are not covered by guidelines or only partly
5 covered by guidelines would complete the full application.
6 3. Enforcement would be based on national standard
7 concentrations for all pollutants not listed specifically in
8 the permit.
9 4. The variability question would be confined to
10 pollutants listed in the application.
11 On the RCRA Form 3, we have no ^comments on this
12 form.
13 we commend the EPA personnel who have made sub-
14 stantial progress on what we feel is a difficult assignment.
15 we offer the above suggestions with the aim of improving
16 the application as it pertains to the permit and enforcement
17 system which we will all have to make function.
18 Are there any questions?
19 MR. ECKERT: Thank you very much. I would like to
20 ask a couple of questions to start out.
21 EPA has in the past tried to set national limits
22 for a limited number of toxic pollutants under Section 307(a)
23 and has found that it's extrerely difficult to anticipate the
24 circumstances that may arise in the very different kind of
25 industrial plants that we have to regulate.
-------
'O
1
2
3
4
5
6
7
10
11
12
13
14
15
17
18
19
20
21
22
23
24
25
107
r
How would you propose that we go about setting these
national limits that would substitute for the application
base limits?
MR. SILVUS: Well, I can tell you how we've done it
in Texas. And, of course, we haven't tried it on that many.
But we have a set of regulations which cover all
the hazardous metals that we're aware of when there's a
problem. We had public meetings, as this hearing, and
established those levels after taking testimony.
You have—as usual the biologists want extremely
stringent numbers. The,,engineers want numbers where there's
a process available to get down to those levels.
And so you have to compromise there. But you just
have to fight this battle one time, as Mr. Seals has said.
Then it's over with.
T7hereas~±f you~ do it over and over^agaih with guide-
lines, you know, you're doing it every month or two.
Now, the way it works as far as enforcement goes,
the state-wide concentration limits on heavy metals apply to
every discharge, unless the permit itself has different
levels.
3ut the applicant only has to—or the permit holder
only has to analyze for those things which are in the permit
itself. And those things are in the permit based on what we
expect to find in that outfall.
-------
103
•C
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
I-iR. 3CKERT: One of the things that we were trying
to get at was the dogs and cats—if you will—the taings that
might be there, but that we wouldn't have expected to find
on the basis of the preliminary scanning that we did of the
industry in setting the guidelines, for example.
And that in the past has caught us short once or
twice where we've discovered that there were large quantities
of pollutants coming out that we didn't think to look for.
How would we guard against that sort of unpleasant surprise?
MR. SILVU5: Well, I'll have to adnit that we have
not been infallible in putting things in the permit that
should be there. Partly this takes place because somebody
changes the process. Or in one case I can think of, they
added an air pollution scrubber, which nobody has expected to
contribute pollutants, but it did.
You can solve this problem through spot checking.
Rather than having everybody do it every time, you can spot
check effluents from time to time and run the full scan.
In talking with people from your Guideline Division
they seem to feel that they can pinpoint the appropriate
materials that should be in the permit. They feel very
positive about this.
So I guess it would be, in part—too, you would ha\
to rely on the companies themselves to where they know if th«
have something in their discharge that maybe is not common tc
-------
109
r
1 their particular type of industry, to report this.
2 So you've got a balance there. Everybody doesn't
3 have to do everything under this proposal. But on the other
4 handr the enforcement folks can analyze as frequently as they
5 can afford to—in other words, spot check from time to time
6 and run the full scan on part of it, run metals or run or-
7 ganic chemicals or whatever.
3 MR. ECKERT: OK, thank you.
9 Any more questions from the panel? David.
10 MR. SCHNAPF: Just to follow up on that last
11 thought, that we limit our testing to what is shown in the
12 waste stream based on our experience. Do you think the dis-
13-4 charger would agree to the degree that he cannot discharge
14 anything else, other than what we expect to be in the dis-
15 charge?
MRr—S-KjVUS-r—We^^ly—I—th^nk—the—e&s-eha-rger would—ee-r—
16-
17 tainly—rather than make an agreement like that—then we'd
18 have to analyze for all these things and run a complete scan.
19 It looks to me like ... it would be several thousand
20 dollars per scan. And if you really wanted to make a sta-
21 tistical study, you're looking at many thousands of dollars
22 per outfall.
23 And then if you have more than outfall, it's quite
24 an expensive thing for a small plant. It would be pretty
25 tough to do.
-------
1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
110
!•
Now, some of the larger companies can handle it.
But the analytical requirements are very hard.
MR. SCHI1APF: One other question. I appreciate your
comments, I think they're quite good.
On using these forms themselves, the regulations
do not require you to use these proposed forms, but we would
encourage the states to use them. I wonder if you have any
feeling about whether or not a state would want to start
using the forms that are proposed.
MR. SILVUS: Well —
MR. SCHNAPF: You don't have to answer that.
MR. SILVUS: I started to say that I guess it de-
pends on how well you accept my comments.
But we do have our own forms. I really can't
answer that. That would be a decision made by somebody other
than me.
MR. 'ECKERT: Mr. Silvus, thank you very much for
appearing today.
Dr. James Miller, Assistant Director of Environments
Affairs, Freeport Minerals Company on behalf of the Anerican
Mining Congress and Committee on Underground Injection Control
Regulations.
STATEMENT
BY
JAMES MILLER
-------
Ill
1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
DR. MILLER: I will answer questions to ths best of
my ability, but this covers a lot of industries. And. I don't
pretend to be an expert in all areas of in situ mining
techniques.
My name is Jin Miller. I'm Assistant Director of
Environmental Affairs for Freeport Minerals Company. This
statement is being submitted on behalf of the American Mining
Congress, an industry association which encompasses the pro-
ducers of most of America's coal, uranium, metals, industrial
and agricultural minerals and the manufacturers who supply
the mining industry.
Today AMC's comments will address a few of its con-
cerns of the UIC regulations, Part 122. But, of necessity,
there will be some overlap with Part 146.
Although the AMC presented comments on certain as-
pects of Part 146 and 122 yesterday, I would like to re-
emphasize that the proposed UIC regulations—both the regula-
tions and that part of the UIC program covering the consoli-
dated permit program will affect all in situ mineral recovery
facilities which depend upon the injection wells for their
operation.
These practices cor.e under the regulation of Class
III wells. Examples of these types of operations include
the solution mining of uranium, copper, potash, salt and the
recovery of elemental sulphur by the Frosch process.
-------
•o
1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
112
r*
In discussing the UIC regulatory scheme, we must not
lose sight of the fact that the purpose of the Safe Drinking
Water Act is the protection of drinking water sources. Al-
though the proposed UIC regulations are characterized as
being minimum requirements by EPA, these regulations in many
instances go much further than is necessary to protect under-
ground drinking water sources.
States that are now regulating Class III wells have
particular expertise to manage these programs, which in many
states assure the protection of underground drinking water
sources, but do not interfere with the logging and production
of valuable mineral resources using in situ mining techniques.
Directors of these state programs should be given
great discretion in their control of Class III wells. If the
state program has adequately protected underground drinking
water sources in the past, imposition of these regulations
would be duplicative and unnecessary.
The Administrator of SPA should be allowed to appro1
in toto, these state programs that have adequately met the
stated intent of the Safe Drinking Water Act.
The procedure for redesignation of aquifers is too
cumbersome and would result in unwarranted delays for future
in situ mining projects.
The proposed Part 122 regulations provide that all
aquifers must be designated suitable or unsuitable for source
-------
«P
•C
113
r
1 of drinking water at the inception of each state program.
2 Any designation of an aquifer has unsuitable for drinking must
3 be based on one of the criteria in proposed Part 146.
4 However, none of the criteria appear to permit a
5 designation of unsuitability for mineral bearing aquifers not
6 already in production. As a result, most future in situ min-
7 ing projects would be in aquifers initially designated as
9 drinking water sources.
9 It would be necessary to obtain a redesignation of
10 the proposed well field area and a suitable surrounding buf-
11 fer area prior to the application for the UIC permit. Un-
12 fortunately, rather than permitting redesignation of such
13 areas by the state, the proposed regulations require the state
14 program to be modified.
15 This requires revising the memorandum of agreement
16 between the state and EPA and plainly will take an inordinate
17 period of time to accomplish. To eliminate this lengthy de-
18 lay, we suggest that authority for redesignation of areas of
19 Class III wells should be delegated to the state.
20 The definitions of Class I and Class IV wells appear-
21 ing in proposed Part 122 are impractical in that they do not
22 take into account the significant areal extent of many aqui-
23 f ers.
24 The Class IV well definition includes and thus pro-
25 hibits additional Class IV wells in any stratum containing an
-------
1
2
3
4
5
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
114
<•
aquifer that is a. drinking water source. On the other hand,
tiie Class I well definition permits disposal of industrial
wastes only in aquifers situated beneath the lowermost stratum
containing an aquifer that is an underground drinking water
source.
Tying these definitions to strata, rather than
to the applicable designation of the aquifer where the well is
to be located, in effect, renders meaningless the provisions
of Section 122.33 relating to the designation of portions of
aquifers as non-drinking water sources .
This approach ignores the fact that numerous strata
are identifiable for hundreds of miles and may be suitable in
one area as a source of drinking water, yet totally unsuitable
in another.
For example, the disposal of industrial waste into
an aquifer occurring at 15,000 feet in the center of a basin
would be precluded if hundreds of miles away on the rim of
the basin, the same aquifer or one beneath it was being used
as a source of drinking water.
Further, disposal of waste into a portion of an
aquifer designated as unsuitable for drinking water source
would be pemittad even if another portion of the same aqui-
fer was designated as a source of drinking water, if it can be
shown that as a result of diffusion and attentuation , the in-
jection operation will not impair the quality of any drinking
-------
115
i-
1 water source.
2 The prohibition in Section 122.39 of any migration
3 of injected or formation fluid to underground sources of drink'
4 ing water is too inflexible and does not appear to contemplate
5 solution mining.
6 For solution mining, a process fluid adapted to re-
7 cover minerals from an underground aquifer is injected into
8 the aquifer so as to sweep the formation between injection and
9 production wells.
10 Produced fluid is treated to extract the mineral
11 values, brought to the surface and is then reinjected. This
12 reduction cycle is continued until the aquifer is depleted
13 of mineral resources. .•
14 Throughout the production operation, pressure
15 balance is maintained to prevent migration of injected fluids
16 outside the well field.
17 Following depletion of the mineral resource by
18 solution mining, restoration of the aquifer is begun. This
19 normally involves withdrawing fluid from production wells with
20 cut injecting fluid into the injection wells. •
21 As a result, the fluid produced from the well field
22 will be gradually replaced by undisturbed formation fluid
23 from outside the well field until the overall water quality
24 in the aquifer is restored to substantially that which existec
25 prior to mining.
-------
116
r
1 There will, however, remain a small amount of
2 residue from injected fluids in the aquifer. Upon completion
3 of that duration, no further withdrawals are made and the re~
4 distribution of hydraulic pressure will occur, thus re-
5 establishing the natural gradients.
g This natural hydraulic gradient will cause ground
7 water to flow from the well field. Ground water flows very
8 slowly. And as it passes from the well field through the
9 surrounding buffer zone, it will undergo treatment by natural
10 processes of diffusion and attenuation. Thus, it will pose
11 no danger to the surrounding sources of drinking water.
12 Despite the fact that there may be no endangerment
13 of an underground drinking water source, migration of injecte<
14 fluids into the source will have occurred, a circumstance tha-
15 is prohibited by Section 122.39 of the proposed regulation.
16 Because of this, w^^s4abmit^^that--thls-^sftct..ion of the
17 regulations should be revised to permit migration of fluid
18 into underground drinking water sources to the extent that
19 the migration is not harmful or endangers that source.
20 Operators of Class III wells should not be re-
21 quired to take corrective action when they are not the opera-
22 tor of the offending well.
23 Sections 122.38 and 146.07 of the regulations re-
24 quire that corrective action must be taken to accommodate
25 realities of mineral production. In many cases of undergrour
-------
1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
117
»•
mineral production, the ownership of mineral rights is verti-
cally segregated. Consequently, nore than one mineral is
being developed and produced simultaneously from tracts with
almost identical geographical or geological bounds.
In many cases an operator of a Class III project
has obtained his right to mine as a sublease from the owner
of mineral rights who is producing a different mineral in the
same tract.
In such cases, particularly in Frosch salt dome
operations, the owner of the basic right to mine places
stringent limitations on the assignee of other mineral
rights, particularly prohibiting him from interfering with the
rights of the assignor or other existing mineral owners.
This results in a legal inability of an injection
well applicant to gain control of the records of the well or
JtoJiasze access- to the well site of other mineral owners in
17
18
19
20
21
22
23
24
25
order to remedy defects in those wells within the area of
review.
Therefore, it should be made clear that corrective
action required by Section 122.38 should not be extended to
wells that are operated by others in a different formation
and producing different minerals.
It is also suggested that corrective action should
be weighed by the Director on the basis of long periods of
trouble-free operations with existing techniques. In
-------
2
3
4
5
g
7
8
12
13
14
15
16
17
18
19
20
21
22
23
24
25
113
»•
operations which I 'in familiar with, you may be producing salt,
sulphur, oil and gas in a very concentrated area.
There are a number of wells producing various
amounts of these materials, and they're all done under leases
and subleases. The sublessee has very little control, and,
in fact, the lease tells him very specifically what he can
and can't do.
And some of these wells may be Class II wells , oil
and gas which under the present regulations have no require-
merits for corrective action. So you may be in a position
where you have a sulphur well located 100 feet from a Class
II well. The Class II well requires no corrective action,
and the Frosch sulphur well requiring corrective action.
I think that the rationale for exempting Class II
wells from corrective action applies also to most Class III
operations .
The conventional mining practices of backfilling
underground mined out workings using sand and water slurry
should be given special consideration.
American Mining Congress is very concerned about
the regulations of sand backfilling since this procedure is
an integral part of conventional mining operations and is
important to assure maximum recovery of the mineral deposit
and the safety of employees.
Any regulations impairing industry's ability to
-------
119
backfill with sand would result in significant disruption for
2 the mining industry. We will give more emphasis to this
^ problem in our written comments.
4 Class III mining operations should be treated in
5 their entirety under the UIC regulations. Both UIC and RCRA
6 have broad definitions which result in some overlap, the same
7 operation being subject to regulations under both programs.
8 Our concern is that unless the proposed consoli-
9 dated permit regulations are revised, operators of Class II
1{* injection wells regulated under the UIC program may also be
** required to obtain a RCRA permit for the handling of injected
*2 material which is an integral part of the mining operation.
13
For example, precipitated solids from water treat-
14
16
22
ment are intermittently used to fill voids in the mineral
15 producing zone in order to promote more efficient use of
mining fluids.
These materials are often temporarily stored in
18
the normal course of operation. If these materials were to
19
be classified as hazardous wastes under the broad definitions
20 contained in the RCRA regulations, the surface storage
21 facilities associated with the Class II injection wells woulc
be hazardous waste management facilities requiring RCRA
0«J
*° permits.
It's not enough that your interpretation of the
25
word "waste" may not encompass these materials. The
-------
120
1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
regulations should make it clear for enforcers of the regu-
lations and those regulated that materials used in raining
processes will not be subject to regulations under RC?A.
In situ recovery of oil shale is a developing
technology which should not be regulated with Class III wells
at this time.
Section 122.34 includes, "In situ gassification of
oil shale"—if I might mention, I think this is a misnomer.
If anyone saw the tape on the "Today" program this morning,
Dr. Arman Hammer was describing the Oxey (phonetic) in situ—
the oil shale project.
There is no gassification. Oil shale is not covere<
by in situ gassification. This is a point which should be
clarified in the regulations.
Again, in situ gassification of oil shale is
classified as a Class III injection well. Production of
shale oil is still in the experimental stage. There's no
commercial production. Industry, DOE, EPA and the Department
of Interior are currently supporting research projects to
establish suitable technology for subsurface in situ mining
or surface retort.
It is, therefore, recommended that in situ oil
shale process be designated as a Class V, rather than a
Class III well, in order to acknowledge that additional in-
formation may be developed prior to the prescribing of
-------
121
1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
control measures.
MR. ECXERT: VIould you be able to summarize your
comments in the remaining few minutes?
DR. I-1ILLER: That's what I'm doing.
Let me quickly summarize the principal comments of
the American Mining Congress with respect to Class III wells,
First, the Administrator of EPA should be allowed to approve
in toto those state programs which have adequately met the
stated intent of the Safe Drinking Water Act.
Second, the procedures for redesignation of aqui-
fers are too cumbersome. They should be changed to prevent
unwarranted delays for future in situ mining projects.
Third, the definition of Class I and Class IV
wells appearing in proposed Part 122 are impractical in that
they do not take into account the significant areal extent
of many aquifers.
Fourth, the prohibition in Section 122.39 of any
migration of injection or formation fluids into underground
sources of drinking water is too inflexible and does not
appear to contemplate solution mining.
Fifth, operators of Class III wells should not be
required to take corrective action when they are not the
operator of the offending well.
Sixth, the conventional mining practices of back-
filling underground mined out v/orkings using a sand and wate
-------
122
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
slurry should be given special consideration under the regu-
lations .
Seventh, Class III mining operations should be
treated in their entirety under the UIC regulations in regard
to fluids used in the mining process.
Eighth, the in situ recovery of oil shale is a
developing technology which should not be regulated with
Class Illwells at this tine
Thank you.
MR. ECKERT: Thank you, Dr. Miller.
Questions from the panel?
(No response.)
MR. ECI'ERT: If there are no questions, thank you
very much for your statement.
We will now adjourn for lunch. We'll reconvene
promptly at 1:30.
(Whereupon, at 12:00 noon the hearing was recessed,
to reconvene at 1:30 p.m. of the same day.)
-------
123
1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
TUESDAY AFTERNOON SESSION
1:30 D.m.
IIR. ECKERT: The afternoon session will please come
to order.
Welcome back to the afternoon session of the public
hearing on the proposed consolidated permit regulations.
Our first speaker this afternoon is John Robinson,
Manager, Environmental Services of Kirby Forest Industries,
Incorporated.
Will you entertain questions from the panel at the
conclusion of your statement?
MR. ROBINSON: Reluctantly.
STATEMENT
BY
JOHN ROBINSON
MR. ROBINSON: My name is John Robinson, Manager of
Environmental Services for Kirby Jorest Industries.
Kirby Forest Industries is a wholly-owned sub-
sidiary of Santa Fe Industries, and owns and manages approxi-
mately 650,000 acroes of tinberland in Southeast Texas and
Southwest Louisiana.
Ue operate plywood plants, a particleboard plant, a
sawmill, a lumber mill and a tie mill, and are presently
studying the possibility of constructing a paper niill in
Southeast Texas. So we have a vital interest in these
-------
1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
-W-
17
18
19
20
21
22
23
24
25
124
»•
regulations.
Since the land in our region of the country is
mostly flat with relatively high rainfall and slow runoff,
we are concerned about some of the proposals included in the
proposed consolidation regulations.
First, we feel that the definition for the term
"normal" silvicultural activities included in the proposals
is unduly restrictive. Restricting the term "normal" to in-
clude only those activities listed in Section 404 (f) (1) (a)
is simply not providing for future developments in forestry
practices.
This reminds me of a former Patent Office Commis-
sioner who at about_the^ turn of the century said—and I
quote—"We raight as well close the Patent Office, since
everything has been invented."
This was prior to the invention of the airplane t
plastics, polio vaccine, penicillin, atomic energy, etc.
The ingenuity of the American farmer, rancher and forester
in developing new techniques must be provided for in the
regulations. Future developments in silvicultural activities
should be exempted as are those presently practiced and
listed in 404 (f) CD (a).
I agree with Senator Bentsen who stated during the
floor debate on Section 404 of the Clean Water Act as re-
ported on page S13570 of the August 4, 1977 CONGRESSIONAL
-------
125
r
I RECORD. "The language following 'such as1 is not to be read
2 restrictively as exempting only activities that are listed.
3 Rather, they are examples."
4 I might add a simple illustration of this. If
5 tomorrow morning you were promoted to a position of caretaker
6 of the Dallas Zoo, and you went in that morning and got your
1 people around you and said, "We're going to make sure that
g animals, such as the lions and tigers, are behind cages" ,
9 and you sent your people out to make sure this was taken care
10 of-
11 Do you think that they would exclude those like the
12 bears and such from being behind cages? I don't think so.
13 So I don't think this should be viewed in a restrictive man-
14 ner here in this 404.
15 Secondly, I am concerned with restrictions placed
16 on minor drainage. In areas of Southeast Texas near the
17 coast, the land is flat and drains rather slowly. The
18 ability to enhance drainage as an aid to harvesting will, in
19 my opinion, place less stress on the environment than if har-
20 vesting were allowed without minor drainage.
21 Harvesting without temporarily reducing the water
22 table could result in more soil compaction, more soil
23 suspension and thus more soil movement to navigable waters.
24 The status of these lands with regard to whether they are
25 wetlands or not will create confusion and delays unless minor
-------
126
I '••
i
1
drainage is allowed. Additionally, allowing minor drainage
in these areas will improve the economics of harvesting as
3
2
well.
4
Finally, we are disturbed that the Agency is attempt
ing to write a set of nationally applicable Blip's for farrr. and
C
' forestry management. Although UFA has recognized the im-
1 practicability of this in previous regulations, we find Si-IP's
Q
proposed in these regulations.
q
In Section 404 (f) (1) (e) , Congress endorsed the pro-
10
11
12
J3_
14
15
position of a set of generic, nationally-applicable iilP's to
deal with a specific problem—the potential environmental im-
pact of any discharge of fill material resulting from forast
and farm read construction across streams and wetlands.
EPA is improperly attempting to expand the scope of
the Blip's to address broad aspects of forest management by
17
18
19
20
21
22
23
24
25
developing these nationwide standards which are not sensi-
tive to local variables, nor reflective of local expertise.
The ambiguity and technical shortcomings of BMP's 11 and 13,
as examples, are noteworthy in this respect.
BMP's would best be handled by 208 programs where
local expertise can be utilized and also where local condi-
tions can be considered. SPA's development of national non-
point source EMP's will undermine and repudiate the spates'
efforts to control non-point source pollution througa Section
208.
-------
r
r
127
1 Planning arid implementation certainly is' contrary
2 to the intent of the Congress. Tor example, during Senate
3 debates on the 1977 act, Senator Edmund I-luskie, a principle
4 author of the legislation, indicated that non-point forestry,
g farming and construction activities (And I quote):
should not and.cannot be regulated by the Federal Government'
end quote.
And further, quote, '' ... Section 2GC, the 1372
9 Act's laboratory for new institutional control mechanism for
10 vexing non-point source problems is undoubtedly the logical
element for dealing with this and other similar problems",
12 end quote, taken from the CONGRESSIONAL RECORD, August 4,
13 1977, page S13541.
14 In summary, EPA cannot in Part 123.107 (a) (5) in-
15 pose BMP's for non-point source pollution problems from up-
16 slope road construction or other forestry activities.
17 If Congress had xvanted EPA or the Corps to develop
18 general BLIP' s pertinent to other forest management activities
19 a new Blip provision would have been added to the Section
20 404(f)(l)(a) exemption for normal silvicultural activities.
Finally, we applaud EPA's efforts to consolidate
-""- i~^_"it system and wish you success.
23 MR. SCXERT: Thank you very much, :!r. Robinson. I
24 want to applaud your restraint. For a minute, I thought you
25 were going to compare the EPA staff to the Dallas zoo.
-------
I
2 I
3
4
5
6
7
8
9
10
11
12
13
14
15
very niuch.
12.
If there are no questions from the panel, t-:an.;
t
Mr. M. C. Unite, Manager of Forest Environment,
International Paper Company, Mobile, Alabama.
Will you entertain questions from tuie panel, s
MR. TTEIT3: Yes.
MR. SCXERT: Thank you.
STATEMENT
3Y
MR. VJHITE : I'll address my connents to 40 <± clrecce
and fill progran also.
___ __________ Qnr first concern- ia. Part. .122. 3 (e.) - in ulia c.e.f iiu.z_
section. The definition of "Best Management Practices ' cr
3MP's, as they're called, should be changed to insure that
onlymeasuresthatarepracticablefor privatelandowners
from economic and technological points of view be induced, as
BMP's.
The definition of "minor drainage" should be im-
proved to address the need for the construction and naintenan
of facilities that are located entirely within wetlands, for
the removal of excess soil moisture from wetlands.
Because most tree species cannot live in soiio t/ic.c
are saturated to ground level for most of tae growinc season
of each year, you have to remove excess soil raou-scure or you
17
18
19
20
21
22
23
24
25
-------
122
I*
*•
get excessive tree mortality.
2 A common example of this artificial flooding and
excessive soil moisture is caused by beaver dans in many
southern forested wetlands.
The definition of "plowing" should be expanded to
include both fam and forestlanc. because discing and ocnar
7 | types of plowing are normal silviculturai practices c_iau art;
3 needed to successfully establish planted hardwood seedlings
9 in competition with nonwoody vegetation on noisr, fertile
10 soils.
11 Now, moving to Part 122.30, which is the iiPDES pro-
12 gram for point silviculturai sources. The silviculturai
13 activities defined as point sources seem to be reasonable, ana
14 no changes are recommended here.
15 Moving on to Part 123.107(a)(5), which again talks
_16_, about the use of mandatory—3^I^J-s. These proposed - ni
17 BMP's are too specific and rigid to allow site-specific rr.ea-
18 sures developed as state and local 203 plan Blip's and tne
19 imposition of nationwide BMP's, such as these, that ars this
20 specific will impede the use of more effective site-specific
21 B:iP's that are being developed under 208 planning.
22 Recommended changes to these nationwide Blip's are:
23 1- Logging in streams should be discourageJ., cat
24 not prohibited because fording of streams is often necessary
25 in skidding and hauling harvested timber. Under some
-------
-LOU
1 i circumstances, a road fill with bridge or culvert can -;= r.cra
I '
2 ! disruptive than the practice of fording to the aquatic en-
I
3 vironment.
BMP No. 10 - Private landowners should be account-
able for the selection and careful use of recommended logging
and farming methods, but they should not be accountable for
soil losses resulting from tha use of these recor.ir.3ndac
8 methods.
9 BMP Wo. 11 - Cutting method controls do not logically
10 fit into a listing of road building Slip's for wetlands. This
11 type of EMP should be addressed through 208 planning for non-
12 point sources of pollution.
13 BMP No. 16 - The use of pesticides and herbicides
14 should be addressed through 203 planning for non-point
15 sources of pollution' instead of Section 404 dredga and fill
Ifr— -programs.
17 BMP No. 17 - Operators should not be forced into
18 public technical assistance, training and service programs ~e-
19 cause most of these programs were designed to foster voiun-
20 tary cooperative efforts between landowners and the
21 public assistance agencies. Mandatory participation will
22 weaken the cooperative spirit of these programs.
23 Thank you.
24 MS.. ECKERT: Thank you, sir.
25 Questions?
-------
131
r
r
1 | IIS. PETERSON: On the question of silvicultural
i
i
2 plowing, I believe that normal silviculture and. ranching acti-
)
3 vities, such as plowing, seeding, cultivating, covers your
4 concern for—
5 MR. WHITE: But why then in the definition of "plow-
6 ing" do you specifically talk about agricultural land and
7 neglect to mention silvicultural land?
|
8 I agree it's probably covered in the first place,
9 ! but it should be covered also in the other place to eliminate
10 i problems.
11 MS. PETERSON: I see.
12 I'm not clear on why you feel the national BMP's
13 will prevent the formulation of more specific DIIP' s at the
14 state level.
15 MR. WHITE: Well, these nationwide problems—or
16 BMP's are going to try to be as specific as—they_ can_Jse^as,
17 they've been published here.
18 And in many cases, because of site specific condi-
19 tions, there is a better solution than the one given here. 3u
20 there will be a tendency for people to adopt or use these
21 rather than the better solution.
22 And 208 planning covers all acres of forestland, and
23 you're coming in here with another set of 3I-'P's and say, "All
24 right, we're worrying about this little segment of forestland
25 called wetlands with still another set of BMP's", and there wi
-------
r
r
132
inevitably be conflict between che two and. confusion in the
2 ! minds of the land owners.
3 i ~f.e need to settle on one set of rules. And the ber
ter set of rules in this case is the 208 planning rules be-
cause they address non-point pollution.
And this 404 program is a point source program that
was supposedly developed to worry about point sources, road
construction. And you're nixing apples and oranges hers witn
the nonpoint and the point source El IP treasures anci trying to
incorporate then into one set of nationwide El-IP1's.
11 MR. ECX2RT: Thank you very much.
12 Fran, at an appropriate later time you might want to
13 clarify the relationship between 203 approved plans and the
14 BIIP''s under this section.
The next witness is Charles W. Fanner, Petroleum
Engineer with the Wyoming Oil and Gas Commission.
Welcome, Z-lr. Fariuer. '-Till you entertain questions
18 from the panel?
19 MR. FARMER: Yes, I will.
i
20 I-1R. ECKSRT: Thank you.
' STATEMENT
22 BY
23 CHARLES W. FARMER
24 MR. FARMER: Mr. Chaiman, written statements con
25 cerning tha proposed 122, 123, 124 and 145 regulations will
-------
i 133
!
r
1 be submitted at a later date. '"
I
I
2 I would like to say that we heartily endorse the
3 previous recommendations to expand the comment period to
4 October 15th. This is based specifically on a lot of the
people receiving the latest draft of regulations about a waek
6 ago.
7 j The following comments refer to Class II wells, and
3 I refsr specifically to Page 34302 of the IfZDESAL IUZGI5TZ;?.
9 dated June 14, Section 123.10, Subsections 4 and 5 (b) (1).
10 As it is now proposed, a state seeking primacy must have
11 criminal penalties equal to or greater than those federal
12 penalties applicable to the UIC.
13 The State of .Wyoming has no such criminal penalties
14 at the present time. Based on the past reluctance of the
15 Wyoming legislature to approve criminal penalties of statutes
16 for federal programs, such as the UIC—and here I'm referring
17 in particular to the OSKA program—it's mighty doubtful that
18 any such legislation will ever be enacted.
19 This could result in primacy not being granted to
20 the State of Wyoming, if Wyoming even applies for primacy.
21 I have three major points here, and each of the points has a
22 question that I would like answered for me on the record.
23 Is the EPA prepared and capable cf running UIC oro-
24 grams in states which are not granted or don't apply for pri-
25 macy?
-------
134
i r
1 | Foinr number two - In previous meetings wx-ch tiie
2 EPA personnel in Denver, it was stated by the Z?A that the
3 UIC program would not interfere with normal oil and gas pro-
4 auction operations.
5 Would not an SPA-adrinistereo UIC program interfere
6 with oil and gas operations, due to the typical bureaucratic
7 redtapa processes?
8 Here I'd like to expand on—or expound on the way
9 . that Wyoming currently grants permits to subsurface injection
10 wells. Our normal procedure is that an application for sub-
11 surface injection (Class II wells) would be received by the
12 administrator—supervisor of the Oil and Gas Commission.
13 This application would contain a certification that
14 other mineral interest operators—mineral interest owners and
15 surface operators within one-half mile of the particular in-
16 jection well have been notified of this action.
17 If at the end of 15 days, we have not received any
18 objection to this proposed operation, we can—and lots of
19 times do administratively approve this application after ex-
20 tensive engineering review of the casing program, the cement
21 ing program, the formation, based on logs from surrounding
22 wells or that particular well, the injection pressure and the
23 source of the injected water.
24 So there is quite an extensive review done prior tc
25 granting an injection permit at the present time.
-------
r
i-
135
And I'd like to have an answer to this question.
i
2 Does the EPA have or plan to have a staff of competent en-
3 gineers to review or conduct the UIC program in states not
4 granted primacy? vJhat kind of delays could we expect that this
5 would result in, delays to the oil and gas industry?
Point number three, lie of the Wyoming Oil and Gas
7 i Conservation Commission are nroud of our excellent: working re-
' i
g lationship with the oil and gas producers in Wyoming. Since
9 the establishment of the Commission, Wyoming's potable water
10 sources have been adequately protected from subsurface in-
11 'jection contamination through practical and acceptable casing
12 and cementing methods.
13 I personally see no reason why the UIC program
14 should be forced on the oil and gas industry and the State of
15 Wyoming, which historically have handled the underground in-
16 jection in an acceptable method.
17 In closing, I would add that to the best of my
18 knowledge the EPA never set foot in our office to review our
19 records, methods, practices or regulations before adopting
20 these UIC regulations and program.
21 I personally feel this is one of the major shortfall,
22 of the UIC program.
23 Are there any questions?
24 HR. ECKSRT: First of all, as to your questions we
25 will have a session later on which will deal with questions.
-------
136
r
r
I'd like to defer them until then.
2 i Are there questions from the panel?
i
3 MR. SCH1-JAPF : Does Wyoming v,ave any sort of exeiup-
I
4 tion for snail oil and gas operators?
5 MR. FA3I-IZR: Mo, there's no exemptions at all. Ue
Q believe that they should all produce the sair.e, and we should
i
7 prevent any type of pollution in the sane manner for both snal.
8 | operators and the majors.
i
i
i
9 11R. SC:iN&PF: And another question. Does the :."yomin
10 program incorporate any kind of area review concept?
11 I-IR. FARMER: The only area of review concept is a
12 half-nile radius. And here I'n talking about any spacing
-13— order or any injection practice—or_ .proposal must be-either
14 approved by the mineral interest owners or any operators of
15 units within one-half mile of a particular well, or—they can
-16 be-~admini s trativeiy-^approved—tha±^ way .
17 or if there..are objections, we have a formal Comnis-
18 sion hearing.
19 MR. SCHNAPF: Do you require any kind of corrective
20 action within the half-mile radius, if there are other wells?
21 MR. FARMER: You mean if we're injecting into one
22 formation and somebody objects, we want to go up—or what's
23 your—
24 MR. SCHHAPF: Well, the area of review is used so
25 that there are any wells that may serve as conduits for the
-------
137
1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
fluids returning back to the potable aquifers. '"
MR. FARMER: Oh, I see.
Well, the answer there would be that any well bores
that we have in the state of Wyoming, we have inspected if
they're abandoned, or if they're currently producing, there
are tests that are run on the individual wells each six months
or so at the operator's discretion.
We have no way of going out and checking, for in-
stance, a producing well. That's a kind of ludicrous question
really. How can you check a producing well to see if injected
water from a well half a mile away or within half a mile is
entering its well bore in the same formation or getting into
another formation.
The wells, that are abandoned have been officially
checked.
MR. SCHNAPF: Thank you.
MR. MOREKAS: I have a question. Mr. Farmer, would
this penalty policy issue be the most major one you have with
the regulations, or are there others?
I1R. FARMER: There are others. But I don't feel
that I have the liberty to say what they are right now. We
of the Oil and Gas Commission have submitted comments to the
Governor and other departments within the state government
have likewise submitted comments.
We have received no comment back. In other words,
-------
! 133
I r
\
1 I we belisve that the Governor is coming up with his recornmenda-
2 tion to the EPA.
3 I an assuming, because of the delay, that there are
4 other objections.
5 MR. MOREXAS: I would like to ask you the same
6 question that I asked Ilr. Stamets, not necessarily now but
I
7 | when you do submit your additional written comments if you can
8 provide us as much detail as to the number of permits that you
9 issued, the staff that is needed, and that type of informa-
10 tion. I think it would be very useful to us.
11 MR. FARIIER: Well, our staff is currently doing
12 that. And I expect that we will also testify at the fifth
13 meeting in Denver. I expect that we will have much more de-
14 tailed comments in Denver at the last part of August, and
15 definitely our written recommendations will be in great de-
16 tail: the size of staff that we will have to expand to, what_
17 we currently are, our current practices and everything of
18 this type.
19 MR. MOREKAS: Thank you.
20 MR. ECKERT: Any further questions from the panel?
21 (No response.)
22 MR. ECKERT: Thank you, Mr. Farmer.
23 MR. FARIIER: I also have a—I understand I'm the
24 last formal speaker—is that correct?
25 MR, ECKERT: No, that's not correct. We have a coup2
-------
I 139
1
1 of more speakers.
2 Z1R. FARMER: OK, fine.
3 MR. ECXERT: Next is I'sr. William Deville, Special
i
4 Assistant to the Secretary's Office, Louisiana Department of
5 Natural Resources.
6 STATEMEUT
7 3Y
8 WILLIAM DEVILLE
9 I-IR. DEVILLE: Thank you.
10 I am representing William C. Hull and Deputy Secre-
11 tary James H. Hutchinson of the Department of Natural Resource;
12 in Louisiana.
13 I'd like to make a couple of overview comments and
14 then speak most specifically about the 5000 metric tons per
15 year definition of a major facility under the RCRA portion of
_L6— —the—integrated^-peKait-iegu-lations-,
17 One overall comments is that I think we have seen
18 some improvement in the drafting of the integrated permit regu
19 lations since some early drafts going back to November 17 and
20 December 22 of last year.
21 I hope that you achieve your intent. I must say
22 that as familiar as I am with the hazardous waste issues, I
23 do somehow find it more difficult to find out exactly what the
24 regulations say with reference to the hazardous waste program
25 since one must do a lot of shuffling back and forth between
-------
1 various sections in this format.
2 I also wanted to underline the ccnrr.ents r.iade by tn«
3 gentleman from Hew Ilexico this rooming on the five-year review
4 period. The Louisiana regulations for hazardous wasca ranage-
5 ment do require us to continue a program of inspection anc
6 evaluation of permit conditions.
!
I
7 ilow, we co not tie that to an/ arbitrary penc... c^
8 years, such as five years. And. we caink that we will ^e sac-
9 cessful in meeting the intent of necessary reviews of perr.its
10 v;itiiout reference to any particular period of years , sucn. as
11 five years.
12 That could be, I thinJ:, an artificial figure and per
13 haps even an impediment to program administration Ly bringing
14 up a bunch of tilings at the sane time.
15 I wanted to get into the five-year metric ton is-
-16— sue because I think it's a critical one, again with reference
17 to tiie nature of a state-authorized program under RCJlt-. for
18 hazardous waste management.
19 First of all, let ns caution you that 5000 metric
20 tons a year is a very snail quantity of waste. '?e will be
21 developing written comments, and I hope to be able to arrive s
22 at least some estimates of the potential nur.ber of facilities
23 in Louisiana which would have at least 5000 metric tons a
24 year.
25 In my opinion, it would be the vast majority of the
-------
j 141
1
1 i oermits to be issued bv the stats. And I have a problem with
j "
2 that because that is keyed into Section 123.37 (b) as to permit
3 review by EPA over permits received by the state program.
4 And I would encourage you to question your own
5 availability of resources. If the intent is to try to hack
6 out of the permits received by the state those which are
7 judged to be significant or specially deserving of oversight,
8 this does not do it.
j
9 | Instead, you will have most of the permits received
10 by the state—literally hundreds of them as candidates for
11 review without any further guidance to the agency as to which
12 ones would profit from an oversight function and review.
13 I once again will repeat that I think that the
14 original proposal of Section 3006 made a better cut by reccm-
15 mending up to ten percent of the permits to be received by
16 the state as eligible for review by the agency.
17 I think that would use your resources far more
18 wisely. In the introductory section to the regulations, the
19 comment is made that EPA has tried and failed tc come up with
20 a degree of risk or degree of hazard concept.
21 I think that's fundamentally necessary to support a
22 lot of the issuas s.nr; -.a-.-:~3mGnt .Jti^-r..?. r^^iac to Jir.^r.ri
23 waste management, including the cut of significant permits
24 for review.
25 And as a point of—again as an encouragement, we
-------
142
••
t-
would encourage you to go back and try harder to develop a
2 rationale and set of protocols for assessing degree of risk
3 or degree of hazard in management of wastes.
4 How, that message I think is going to be coning to
you from a variety of sources, including the National Governors
Association, ISOTOP, which is the Intergovernmental/Scientific
Advisory Panels.
I've just coir.e from a meeting last week of the
9 American Association for the Advancement of Science Workshops
1Q on hazardous waste issues. And all three of the AAA3 Workshop!
emphasized the importance of a degree of risk assessment.
12 I think it can be done practically and with avail-
13 able information. And I think that it's absolutely critical
,. to the allocation and appropriate administration of the re-
15 sources available, both at the state and federal levels.
16 Thank you.
17 MR. ECKERT: Thank you, sir.
Questions from the panel?
19 MR. MOREKAS: Mr. Deville, we certainly appreciate
2Q your comments. I'm just wondering whether in presenting to
us additional information on the 5000 metric ton per year cut-
22 off t'.iac. -••= ':T --.. : .. -•- aior :.-.ci".: ties, if you would
provide as much degree of detail as possible as to the types •
of facilities, whether on site, offsite, anything that would
round out your data in terns of what you consider to be a
-------
143
1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
facility. '7e would certainly appreciate that.
And if you could encourage the rest of the meiriers
of the agency to do the sane because we do ask for that type
of information in the preanble.
MR. DSVILLE: Certainly we'll be happy to try to
do that.
For one thing, that does not make a cut between off-
site and on-site at all, you know, in terms of the quantita-
tive cut.
MR. MOREKAS: That's right.
But if you would do that, it would be additional
information that we're asking for at this point. That's why
I'm bringing it out.
MR. DEVILLE: Certainly.
MR. BALTAY: Mr. Deville, did I hear you properly?
You seem to be suggesting _that_the idea of having multiple
EPA permits being reviewed for the same facility at the same
time would create a v/orkload problem?
MR. DEVILLE: Ho. Really my point is that I think—
I understand the premise that the Agency is required to exer-
cise some oversight over authorized state programs. One exer-
ciso of that oversight would be the review of permit applica-
tions received by the state.
OK. The problem gets to be that if we have hundreds
of permit applications and you have a criteria for determining
-------
•
•c
•
• ^_
c/
•
1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
17
18
19
20
21
22
23
24
25
si
ce
fu
we
yo
ad
si
th
fo
au
pc
re
ar
th
an
be
in
pi
144
significant permits, which include almost every permit re-
ceived, then you will not have the facilities to do a meaning-
ful review.
And I would also caution you that under state lav/,
we will be in a time track such that if we don't hear from
you, we v/ill ignore you.
I1R. BALTAY: All right. 1 thought your com;.encs
addressed themselves not so much to the question of SPA over-
sight, but as to the question—one of our central concerns in
the consolidation was that in order to provide the opportunity
for the consolidating process.
We were anxious to line up whoever the proper
authority—the person with authority is should have the op-
portunity for simultaneous action on multiple permits.
MR. DEVILLE: No, that's a point to which I did not
_refer. However, I will have to, say that—OK, again state law
and regulations tell us what our time clock periods are for
the review of a particular program administered by the state.
And if the period of consideration or review of
another permit is out of step with that time clock, we will
be forced to proceed independently.
I think many of the states, including my own, will
in the future continue to look at the possibility of systemati
procedures for handling a variety of environmental permits.
MR. BALTAY: Do you see any merit in the central
-------
145
r
r
I idea of synchronizing those opportunities?
2 MR. DEVILLE: As I understand these regulations,
3 the greatest force would be in those cases where EPA is is-
4 suing all or most of the relevant permits.
5 But I would caution you that where those responsi-
bilities are split between EPA and the state, it may not be
possible, to run those clocks simultaneously. And where the
8 state is issuing all the relevant permits—I think that's a
9 matter of state discretion as to how the integration process,
10 if any, should occur.
MR. 3ALTAY: This, of course, is a first step.
12 Thank you.
13 MS. STRUCK: On the same subject, at least the way
-the proposal is written right now, they would require states
15 and EPA both to at least review all permits of the same
facility whenever—aBothe-r-oae—is- modified or renewed-or
17 terminated.
18 We're particularly interested in your comments on
19 that, either when you write your formal comments or at this
20 point.
2i MR. DEVILLE: OK. Wo, I see no point—it may or may
22 not be appropriate in any given case to call for review of a
23 particular permit just because another one is due. In general
we would not subscribe to that principle administratively.
25 If we have been conducting a systematic program or
-------
146
i
2
3
4
5
6
7
8
9
10
11
12
13
14
15
ID
17
IS
19
20
21
22
23
24
25
investigation with tha potential for parr.it review on a con-
tinuous basis, we see no sense in arbitrarily calling it up
again just because another permit is due for issuance or for
reconsideration.
DR. SKINNER: I have a couple of questions. Your .
comments on degree of hazard, if I understand them right,
you're recommending a degree of hazard approach towards
prioritizing the permits that would be reviewed by EPA where
the state administers the program.
Ycu're not referring to a degree of hazard approach
in the structure of tha 3001 regulations?
i-13.. DEVILLE: As a matter of fact, I recommend a
rather consistent approach to degree of hazard which_would,
among other things, include 3001, 3004 and priorities for our
choice of permits for review.
OK-
MR.'DEVILLE: All of the above.
DR. SKINNER: —focusing on the subject of the hear-
ing which is 3005 and 3006, it would be very nelpful to us—
I think conceptually degree of hazard is very, very appealing
to everybody.
The problem is that once you get beyond the con-
ceptual level, it becomes very, very difficult to draw dis-
tinctions based upon degree of hazard. Any specific recom-
mendations that you could make on which wastes should be •
-------
147
r
r
1 considered raore hazardous than other wastes and wiiy, whic.i
2 facilities should be considered rr,cre hazardous than other
3 facilities and why would be very helpful, "/e have not been
4 j able to draw those distinctions very, very easily.
5 So getting beyond the conceptual level down to the
6 operational level would be helpful to us.
7 :<;R. DEVILLZ: OK. I don't know if I have any
8 friends fron 3FI, Rollins, Uaste Management or so on, out I
9 think as we have previously discussed, cciririercial hazardous
10 waste disposal facilities probably will be considered by all
11 of us as rather significant permits, in terms of public
12 interest. That's one cut.
13 I think then we could go on to look at particular
14 kinds of waste streams or operations, perhaps land burial
15 being—in certain areas being one of the things that we
16 describe as a very significant case.
17 I think there can be a rude link developed.
18 DR. SKINNER: We would appreciate any facts you
19 can give us along that line.
20 With respect to something you didn't mention in you
21 statement, but I'd like to get some information on it. Is
22 the penalty provisions of the Louisiana hazardous waste pro-
23 gram—are the current penalty levels equivalent to the federa
24 penalty levels?
25 MR. DSVILLE: Yes. The penalty levels in the state
-------
148
I law are identical to those in RCRA, civil and criminal.
2 DR. SKINNIER: Civil and criminal.
3 MR. DEVILLE: Yes.
4 DR. SKINNER: Is there a penalty policy envisioned
where penalties would be—there would be a basic policy for .
penalties receiving particular levels?
i'LR. DSVILLE: If I may make a point, I think the
state will establish policy positions with reference to enforc
r.ent actions. If you're referring to a penalty policy thing
10 under federal guidance, perhaps we would not be intrigued by
that.
12 DR. SKINNER: ?Jould you coirotient particularly on the
13 provision of the regulation that requests that you adopt the
14 EPA penalty policy for use in—
15 MR. DEVILLE: V7e would probably be opposed, I think
16 right off the top, to the requirement as a condition of
17 authorization that we do so.
18 I think that would ... you know ... do some in-
19 justice to precedents in civil code and criminal jurispru-
20 dence.
2i DR. SKINNER: Fine, thank you.
22
23 (No response.)
24 MR. ECKERT: Thank you very much, Mr. Deville
25 Cur final scheduled witness is iir. T. S. Griffith
-------
149
1 from Houston, Texas.
2 STATEMENT
3 3Y
4 T. E. GRIFFITH
5 MR. GRIFFITH: Mr. Eckert, panel, ladies and gentle-
6 men, I'm a Professional Engineer, and the rest of my docu.men.ta-
7 tion would take about ten, minutes.
8 But, number one, I'm a consumer. I think it.ost of
9 you are consumers. And every time they come up with one of
10 these little gimmicks, they add one more piece of paper, you'r*
11 going to pay for it.
12 And that's all my comments.
13 I can answer any questions you'd like to ask.
14 MR. ECKERT: That's an appropriate note on which
15 to conclude the formal portion of the hearing—
16 MR. GRIFFITH: I'd like to make one other comment.
17 Two or three of you inquired about the participation of the
18 community and the public participation. All right. Now,
19 you've sat through two days of this. Have you heard one
20 person supporting your program?
21 MR. ECKERT: Well, I think there's an answer to
22 that. I think we've heard a lot of support, sir, for some of
23 the broad objectives of the consolidation—
24 MR. GRIFFITH: Specifics.
25 MR. ECKERT: Well, as you know, the general way, the
-------
150
f*
I'
1 these things work, sir, is that if soneone agrees wicli '/"hat
2 EPA does, they don't find it necessary to tell us about it.
3 ::hen they disagree with us, they seem to find it very—
4 MR. GRIFFITH: Let's inquire here. Is anybody
here in full support of this program? Hold your hand up if
6 you are.
7 There's your answer.
8 Thank you.
9 MR. ECKERT: Thank you.
10 With that, we'll conclude the formal portion of this
11 afternoon's session. Are there any speakers who registered,
12 but did not get called on?
13 Yes, sir.
14 MR. HUGHES: I registered this morning and requested
15 an opportunity to make a presentation.
16 || MR. ECKERT: I'm sprry. Your slip must not have^ .
17 been passed to rr.e.
18 Would you please come up and identify yourself and
19 present your statement now.
20 STATEI-12NT
21 3Y
22 JEFF T. HUGHES
23 MR. HUGHES: Thank you,- :ir. Chairman.
24 I'm Jeff T. Hughes, Jr., of Bogalousa and I repre-
25 sent the Louisiana Forestry Association as its president.
-------
151
3
4
5
6
7
8
9
10
11
12
_13 _.
14
15
I'm also a professional fcraster and have practiced forestry
for somewhat more than 30 years.
I'm currently employed by Crown-Zillenbach Corpora-
tion as Manager of Environmental Services for its Southern
Timber and Wood Products Division.
Getting back to the Louisiana Forestry Association
which I represent, our association is composed of over 2300
members in the State of Louisiana who are interested in the
promotion, conservation and the wise use of our state's forest
resources.
Forestry is the second largest employer group in
our state-. And the total economic benefit of forestry to our
state is greater -than-- that- of all other agricultural en-
deavors combined.
Our association has followed the development of the
"regulations designedrto iinpll^mentr^eetioir-404—of- the-Giean-
17
18
19
20
21
22
23
24
25
Hater Act with great interest, for we feel that it's important
that the goals of the Clean Water Act are met without the
adoption of excessive or unnecessary regulatory programs.
In reviewing the proposed consolidated permit regu-
lations , we find several which we feel deserve special com-
ment as follows: Part 122.80 - Silvicultural Activities.
This definition is much more acceptable to us than that de-
finition that was proposed as Part 122.46 on August 21, 1978.
By the way, that is not part of Section 404, but of
-------
1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
_lfi_
17
18
19
20
21
22
23
24
25
152
f
t*
the NPDES section. I got ahead of nyself in my presentation.
Proposed Part 122.3 (e), definitions that ara ap-
plicable to Section 404 program requirements. This part de-
fines "minor drainage" as the construction and maintenance
of facilities for the removal of excess soil moisture from
drylands.
Drylands are not supposed co be covered oy Section
404 dredge and fill activities thereon.
Following this line o- reasoning, it would restrict
many normal every-day forestry activities, despite the exemp-
tion of minor drainage in silviculture that were given by
the act.
That, definition would .restrict the construction of
ditches that do not convert the waters of the United Scates to
a new farming or a forestry use, do not significantly drain or
modify wetland areas, or do not violate—Lhe piovisions ol
Section 404 (f) (2) by altering the flow or circulation of
waters or reducing.the reach of a wetland area.
We would request that minor drainage be redefined,
so as to allow for the exemption of ditches as provided in
the act.
Moving on to proposed Part 123.107(a)(5), the best
management practices for forestry roads, this part provic.es
for an exemption for any discharge that's associated vith the
construction of forest roads, provided that the roads are
-------
153
i*
r
constructed and maintained in accordance with best management
practices
3 Then Parts 123.107(a) (5) , 1 through 17, lists the
4 BMP's that the operator is required to do in order to be
5 exempted. Now, we find no fault with scr^e of these 3;'P's,
6 ! lies. 1, 9, 12, 14, 15 and the first part of 13.
7 But we think that Blip's "Jos. 10, 11, 15, 17 and the
8 second pe.rt of 13 go further than indicated by the intent of
i
9 tiie act. They deal with the erosion on non-point source
10 problems from upslope construction, which are general aspects
11 of forest management that are unrelated to the construction
I2 of forest roads.
13 These 311? 's are unnecessary, inappropriata; an<
14 since they cover broad aspects of forest management techniques
15 and are not specific to the impacts of fill material resulting
16 from road construction, we feel that they are unworkable.
We request that these BilP's be omitted. We thank
you for this opportunity to comment on the proposed regula-
19 tions.
20 Thank you.
I1R. ECXERT: Thank you, sir. You will be subraittinc
22
23 :
-------
1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
154
i-
i-
I-1S. PZTSRSOu: The Blip's that: you feel are unwork-
able, do you feel that they would not be acceptable if they
wera under a 203 program?
I-IR. HUGHES: Some of these Blip's, as I have said,
are totally unrelated to 404 of che act. The provisions tell*-
ing you what type of forast management activities to carry out
for instance, is not covered by 434.
The management of upslope areas, these xvill be
covered by Section 208 programs. And I think very much better
than by any attempt at nationwide application of SIIP's.
MS. PETERSON: Certainly lsTo. 6 provides for an
exemption when the state has a 203(b)(4)(b) program. These
-activities could be covered by such a program.
I guess what I'm asking is whether the BMP's them-
selves are unacceptable with the programs covered under
17
18
19
20
21
22
23
24
25
MR. HUGHES: I don't mean to indicate that all of
the BMP's are unnecessary. Some of them are necessary in
order to carry out the provisions of Section 404.
Those are the ones that I enumerated, Nos. 1, 9,
12, 14, 15 and the first part of 13. But some of the addition
••- we feel, are not appropriate, that they are irrelevant
actually to the 404 program.
They do not have to do with dredge and fill acti-
vities and the nation's waters or the adjacent wells. They
-------
i 155
r
r
I \ will be covered under Section 208 programs of the state. And
2 they really have no part in 404 regulations. They have no
3 place.
4 MS. PETERSON: You were discussing the definition of
5 "minor drainage", and I was having some problems following
6 soir.e of your discussion on when the (f) (2) recapture provision
7 | applies.
8 MR. iiUGEES: I didn't repeat the entire definition.
9 i'7e all know what it is.
10 My chief objection to it is that it covers the
11 dredge and fill activities on uplands which, in the first
12 place, aren't covered by 404—ditches on uplands aren't
13 covered by 404 regulations. They're not part of the waters.
14 They're not part of the wetlands.
15 So you're actually—you're bringing in areas under
16 404 regulations that they actually do not cover.
17 MS. PETERSON: I interpret that to mean that what
18 you're exempting is a ditch that is discharging into waters o.
19 the United States coming from the upland area.
20 MR. HUGHES: Vie feel that the exemption covers
21 those types of forestry operations which do not cause several
22 results; those being the draining or modifying of wetland
23 areas, or violating provisions of" Section 404 (f) (2) by alter-
24 ing the flow or the circulation of the water or reducing the
25 reach of the wetlands area.
-------
i 156
i '"
1 : If they are ditches that are used in the normal
2 j forestry operations in making it possible to carry out harvest
i
3 ing operations, planning operations that do not change the
4 use of the land, well, we feel that they are exempt.
i
5 j MS. PETERSON: If you can provide us with some
6 specific examples of where that occurs, where conversion does
i
7 not occur, we'd, appreciate it in helping to clarify this.
8 -TIR. HUGHES: r^hen you say provide you with sorr.e
9 definite examples, do you mean, on the ground field trips to
10 view such areas? I7e would be glad to participate—
11 MS. PETERSON: }To, written examples.
12 ilR. HUGHES: It's very difficult in a written con-men
13 j to show a site specific and that's what's wrong with some of
i
14 our Blip's that we're trying to apply, nationwide general broad
15 guidelines or BMP's to specific problem areas.
16 MS. PETERSON: Well, I think in terms of the 31-lP's,
17 I think there's some legislative history that does support
18 setting up some broad general guidelines for B2IP' s. T.Te wel-
19 come your comments on which ones of these you feel inap-
20 propriate or how they can be specifically rewritten.
21 HR. HUGHES: OK.
22 MS. PETERSON: And do keen in mind ITo. 6 a.-d tha
23 possibility ... There's one other'mechanism, and that's the
24 general permit option. A state may choose general permits,
25 and that hasn't been discussed at all.
-------
r
2
3
4
5
6
7
8
9
10 j
I
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
157
r
MR. HUGHES: That's right.
MR. ECKERT: Mr. Hughes, if there are no further
questions, thank you very much. I appreciate your statement.
Is there any speaker whose name was not called?
(No response.)
MR. ECKERT: On behalf of the panel, I would like
to thank all of those who appeared today. We appreciate your
statements. We will study them carefully.
This hearing—the transcript will be reproduced, sen
to the regional offices. It will be studied carefully in head
quarters, as well as the written comments; and we will be
responding to the major issues.
With that, I will conclude the formal portion of
this hearing.
We'111 now -go off the record.
(Whereupon, at 2:30 p.m. the hearing was recessed,
to reconvene at 7:30 p.m. of the same day.)
WRITTEN STATEMENT
3Y
C. MICHAEL HAREORDT
My name is C. Michael Harbordt. I am the Director
of Environmental Affairs for Temple-Eastex Incorporated,
Diboll, Texas and am here representing the Temple-Eastex Fores
Operations.
The purpose of my statement is to comment on the
-------
158
i r
, t'
1 i proposed regulations published in the FEDERAL REGISTER on
2 June 14, 1979 regarding Section 404 and the procedures for
3 delegating this program to the states.
4 In regard to the definition of "minor drainage!: as
5 presented in Part 122.3 (e), we take exception to this
6 definition for the following reasons :
7 1. It allows drainage in "upland" areas already
8 exempted by the statutory limitations of Section 404, therefor
9 not giving us anything we didn't have already. •
10 2. It does well to give examples of what is not
11 included or defined as "minor drainage" but does not give any
12 examples of what "minor drainage" is. A layman's definition
13 of minor drainage, based on impact, is needed. For example,
14 limiting the drainage area in acres would give the forester
15 definite physical guidelines to follow rather than having to
—16 attempt-to—determine whether his planned activity is in a_wet-
17 land area.
18 3. Since wetlands have not been identified by
19 actual location, rather only by definition, our foresters
20 would have to operate under a cloud of uncertainty as to
2i whether their drainage activities would require a permit.
22 Having to get an on-site evaluation of their proposed plan, b?
23 the Army Corps, would take away the attempt made to axenpt
24 "minor drainage" activities, thus hampering forestry opera-
•
25 tions.
-------
r
r
153/175
1 i ";ith respect to Best 1-lanagenent Practices (BMP's)
|
2 for forest roads, we have concerns regarding the following:
3 1. Section 208 programs give the states the op-
4 portunity to impose BMP's for those silvicultural activities
i
5 J they have determined to have an inpact on water qualicy. The.
6 Blip's proposed under Section 404 rake no provision for
7 site specific problems , but rather attempt to impose national.!
8 applicable standards. These types of BllP's do not take into
9 consideration climate, topography, geology, etc.
10 2. One proposed Blip r -17 (;:vii) , implies through
11 the use of the phrase , "All operators electing to qualify ....
12 that sor.e sort of pre-notification or Army Corps effort to
13 review the methods to be used, will be imposed. V.e had hoped.
14 that the pre-notification issue had been defeated sor^e ii;r.e
15 ago. Any attempt at pre-notification would hamper our
flexibility— ^to-raove-^o-re&try— epe-rations because of cii~itilogi
17 cal disturbances.
18 I appreciate the opportunity to have been able to
19 present this statement and hope that a workable program car.
20 be obtained to everyone's satisfaction.
21 Thank you.
22
23
24
25
-------
1
2
3
4
5
6
7
8
9
10
11
12
14
15
175
»•
r
-TEDaSSDAY I-IGSUBIG SESSIQI-l
MR. ECKERT: Cone to order, please.
Good morning. Tvelcone to the continuation of the
public hearing on proposed consolidated penr.it regulations
published June 14 in the FEDERAL REGISTER. v;e are continuing.
yesterday's session this morning which was limited to con-
sclidated permit regulations. :icnday we had an all c.ay
session covering UIC. Tuesday we had a session covering
consolidated in the morning until about 3:00 in the afternoon;
and yesterday evening we had a session covering both conscli-
dated and UIC. Today's session is simply a continuation of
yesterday morning's session covering the consolidated portion
. ;iy name is Alan Eckert. I am Deputy Associate
General Counsel for Permits in the Office of General Counsel,
-tt-
17
18
19
20
21
22
23
24
25
llashington, D. C. To introauce the other nenbers ol Lhe
panel: Starting on my fair right, Dr. John Skinner, Director (
State Programs Division, Office of Solid Waste; Allen Levin,
Director, State Programs Division, Office of Drinking "ater;
Fran Peterson, Program Analyst, Office of Criteria and Scanca:
Diana Dutton, 'Director, Enforcement Division, EPxA Region VI
in Dallas. And on my left Paul Baltay, Deputy Director, Stat
Programs Division, Office of Drinking I'Jater; David Schnapf ,
Attorney, Permits Division, Office of Enforcement, Uashingcon
And nissing at the end, but she will be with us in a r.ornent
-------
177
1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
is Heather Struck, also an Attorney in the Permits Division,
Office of Enforcement in Washington, D.C.
Yesterday morning we gave a brief summary of
i
the issues and we heard from approximately 14 witnesses. This
morning is simply a continuation of that session. In a moment
we will hear from the witnesses who signed up. Now so far onJ
three witnesses signed up. These are Ken Hanby, Assistant
Supervisor, Alabama Oil & Gas Board; and Karen Shewbart, I
believe it is, Texas Chemical Council; and D. V. True, City
Service Company in Tulsa.
If there are any others who wish to make a presen-
tation hearing, please sign—fill out one of these cards whicJ
are available at the front desk and indicate by checking the
box that you would like to make a statement and we will
accommodate you. The format which we explained briefly
yesterday is very simple and informal. The speakers are
asked to limit themselves, if possible, to ten minute presen-
tations to leave time for questions from the panel. The panel
members will not be cross-examining you. They are rather'
trying to find out what the problems are to get clarification
of what your position is and to explore possible alternatives
which might cclva j^-aa ox the procLer.^ :hat t^^a cw, _-, Ths
transcript of this hearing will be reprinted and distributed
to the regional offices where the transcripts will be availabl
for review in the regional office library. Addresses of all
-------
173
»•
r
of cur regional officas are available at the front des/;.
2 This is the first of four hearings. The FBEE3AL
3 REGISTER notice of the proposed consolidated regulations lists
4 the tiroes and locations of those hearings. They are, in ad-
5 dition, to this hearing, July 23rd through 25th in Washington',
D. C. ; July 25th through 23th in Chicago; July 30th through
August 1st in Seattle; and August 23th to August 30th in
Denver.
9 At the conclusion of this series of hearings, the
10 I transcripts of the presentations and the questions frorr. the
11 j panel, the proceedings this morning will be reviewed and
12 analyzed by EPA. In addition, the corrjr.ents that are submitted
13 in writing, both by persons corning to these hearings and by
14 persons responding to the request for public comment in the
15 regulations, will be' carefully analyzed; and our responses
"TB i) win appear in the "form of a preamble to the final rulemaking
17 document. The preamble will set forth how we have dealt with
18 the major issues posed by the commentors. We want to assure
19 you that all of these comments will be carefully considered, a
20 you will see the evidence of that in our responses.
21 With that I would like briefly to have the members
22 of the EPA staff who are serving as the resource people intro-
23 duce themselves before we begin wi'th the witnesses , starting
24 at the far right.
25
-------
179
1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
MR* WRIGHT: My name is Larry Wright. I am with
the Region VI office here in Dallas, and I am associated
with the RCRA Hazardous Waste Program.
MR. FARRELL: John Parrell, Region VI, Office of
Enforcement Division on PSD Program.
MR. PETERS: Dave Peters from Region VI the 404
Program.
MR. GORDON: Mark Gordon from Office of General
Counsel, UIC Program.
MS. ALLEN: Erlece Allen, Region VI, Water Supply
Branch.
MR. BERGER: Stan Berger, Region VI, PSD Program.
MR. ECKERT: Thank you.
We have instituted a practice of—We have institute<
a practice in these hearings of asking persons who wish to
ask questions of the panel members to put them in writing on
three by five cards. We feel that's been very successful; it
enables us to deal with the questions more efficiently.
However, this morning the group is small enough, and we only
have three witnesses scheduled so to the extent that time
permits we will open—We will have a session following the
formal hearing which will go off the record and just respond
to any questions from the floor. So with that, I would like
to move directly to our first witness, Ken Hanby, Assistant
Supervisor, Alabama Oil & Gas Board. Mr. Hanby.
-------
1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
17
18
19
20
21
22
23
24
25
180
»•
/•
VOICE: Before you start, will somebody do
something about the alternate speech that's coming over the
loud speaker.
MR. ECXERT: Mr. Hanby, do you have a written
copy of your remarks?
MR. HANBY: She has a copy. I will entertain
questions.
STATEMENT
OP
KEN HANBY
MR. HANBY: Mr. Chairman, Monday the Chairman,
Mr. Levin, allowed an Aggie joke and I was asking first will
you entertain those today?
MR. ECKERT: Aggie jokes are limited to 30 seconds
MR. HANBY: Okay, there was this Aggie who came
into a store because it advertised a chain saw guaranteed
to cut 30 trees a day. So he bought one. He got up the firs-
day and went out and started cutting at 8:00 in the morning
and worked until about 5:00 and cut ten trees. The next day
he decided to get up early, you know, he wasn't working that
hard. So he got up at 5:00. Cut trees until 11:00 that
night. He got 15. The next morning he went back to the
store and demanded his money back. He explained to the
salesman what happened. The salesman took the chain saw
and he looked at it and said well it looks fine, vroom.
-------
181
r
>•
1 vroom. The Aggie said, "What the hell is that noise?"
2 Members of the EPA, we have been making noise.
3 The states have been making noise for four years. We will
4 continue to make noise on these proposed regulations.
5 My name is Ken Hanby, Assistant Oil & Gas Supervise:
6 State Oil and Gas Board of Alabama. We appreciate this
7 opportunity to comment on Parts 122, 123 and 124. My comment:
8 will be very general. The copies of Parts 122, 123 and 124
9 were acquired last Monday week, and quite frankly specific
10 comments and details have not been developed because of the
11 fact that these three parts are very complex, totally
12 interrelated and confusing. In very few areas of these
13 regulations are there paragraphs without reference to another
14 section or sub-section. With the adoption of the Natural
15 Gas Policy Act of 1978, we had an experience whereby a state
16 program was developed to administer a requirement of Federal
17 law and rules and regulations of the FERC. The state
18 regulatory agencies were given the responsibility to certify
19 oil and gas wells so as to determine what price the gas would
20 be sold for from each well in the state. FERC adopted a
21 set of rules and regulations that provided the states with
22 primacy in making these determinations so long as the state
23 program was approved by FERC. FERC established general
24 principles and guidelines. The states were required to
25 submit a plan of how the state would within its own rules
-------
182
t*
r
1 and regulations, its own laws, its own operating procedures,
2 administer the certification of gas wells.
3 Although this program cost the states a considerable
4 amount of money to implement, it was done in such a manner
i
5 that FERC and states cooperated in fulfilling the requirements
6 of the Natural Gas Policy Act resulting in minimal impact
7 on oil and gas operators and on the states which implemented
8 the FERC program. And gentlemen, there was no money provided
9 by FERC to the states. We have absorbed that within our own
10 budget.
11 • We urgently solicit EPA, as they consider the pro-
12 posed regulations, to seriously consider the need to make the
13 requirements for state programs more flexible and less
14 confusing. The states should be able to have their own
15 program approved under broad outlines rather than the
16 - II—extremely-specificr and detailed outline that is currently
17 in the proposed regulations. Many oil and gas agencies
including Alabama are quasi judicial with laws that may not
19 permit many of the procedural requirements proposed in the
20 regulations. For example, public notices, fact sheets,
21 draft permits, open comment periods, response to comments,
22 signatory requirements and penalties. Many of the proposed
23 regulations have lengthy detailed requirements for permits
24 and schedules of compliance. Many of these requirements can
25 be addressed and are currently addressed in existing state
-------
183
1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
rules and regulations.
The requirements that an application for permit be
signed by a principal executive officer of the petitioning
company at least the level of vice president or for Class 2
wells under the UIC program with the conclusion that the
reference person may designate a representative who is
responsible for the overall operation of the facility for
which the regulated activity originates. In many oil and
gas operations there may be a production foreman of the field
operation and then a district engineer above him, and then
a chief engineer above him in another location. Each of thes<
could, depending on the company/ fall within the definition
of being responsible for the overall operation of the facilit;
We ask you, is this requirement only for the
application? ;Or>, is it intended to be for every report or
data that is submitted on the injection wells hereafter? The
certification statement would require all of our state forms
to be revised to include it. You know, it is interesting to
•;
note that FERC started with the same procedure they defined
\
the application for determination must be signed by an
official of the corporation. They immediately recognized
this as a problem and they changed that: to—They first said,
I think I might have said official, they said officer—office
of the company. They changed that to an official. Record
keeping on whom within what company were authorized to sign
-------
184
t*
l would be voluminous. As you know, major companies 'and even
2 small companies are continuously changing personnel. The
3 file that we would have to generate would be quite large and
4 would be time consuming and we see no purpose in this.
5 The regulation provides that where permits under
6 two or more programs are issued for a single facility, the Dir-
7 ector shall review all of the permits issued for that facility
8 whenever any one of the permits is reviewed pursuant to
9 Paragraph (a) or any one of the permits expires pursuant to
10 another section or any is terminated.according to another
11 section. This appears to be a needless and excessive review
12 procedure since every permit must be reviewed by the Director
13 every five years. If, for example, there were two permits
14 issued for a certain facility, and they were issued two and
*• .-'-•:
15 a half years apart, that would require that every two and a
16 half years of operating the facility all permits must be
17 reviewed by the state Director. Once again, this appears
18 to be a place where the Director of the state program should
19 be given authority to determine if it would be necessary for
20 both permits to be reviewed at the same time. I can easily
;• ~S
21 see how this would involve a case where a salt water disposal
22 well is permitted and there may be a separate permit for
23 discharge of effluent. The disposal permit and the discharge
24 permit may or may not have any relationships to each other.
25 We are concerned about requirements that permits
-------
185
1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
be modified to comply with changing standards and the lack
of flexibility in the regulations. We are already concerned
with the possible impact of these regulations on disposal
wells in operation which have no pollution history. The
proposed regulations may require plugging of some of these •
wells because they were drilled when drilling practices and
procedures are not what they are today. However, no evidence
exists to indicate that pollution has, is, or will occur.
Gentlemen, we have heard several references to
IOCC study. I made one Monday. These studies do not_tell you
what you wanted to hear. Therefore, they were not conclusive
and did not support the many state positions that our existing
programs are adequate and are working.
Members of EPA I ask you, where are your studies or
data to tell you that our programs are inadequate. This is
* . , • • •
the basic philosophy for the entire program that the states
cannot understand. You have been given a tremendous respon-
sibility pertaining to injection wells. You have a respon-
sibility to protect one of the three things that we must have
to live. However, you have a responsibility to us, the people
not to make unnecessary rules. r ;
The Act provides two specific comments about the
QIC program not impeding oil and gas operations, unless
regulations are essential to prevent injections and dangerous
underwater drinking sources. If the state programs are
-------
186
1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
protecting it, then additional regulations are not necessary
and are not essential to prevent the migration fluids into
our fresh water resources.
We are concerned about requirements that permits
be modified, excuse me. Although schedules of compliance
may be logical, requirements for construction of plants
or hazardous waste facilities, we see the schedule of
compliance for the operations and permitting of Class 2
wells is only additional paperwork and complicating factors
in the preparation of permits.
If, for example, a well is permitted to be drilled
as a salt water disposal well and the schedule of compliance
states that in three months the well will be drilled and
cased and cemented and the operator will begin injectivity
testing; and actual drilling is delayed the operator would
have to furnish notice in writing to the Director explaining
why he did not meet the schedule of compliance reschedule it
and this is unnecessary.
As the regulations are proposed, there are many
sections dealing with stipulations and conditions of permits.
Rather than spell out in each permit specific stipulations
or conditions, rules of atacswi-o effect would be promulgated
by the State Regulatory Board or Commission and the operator
of a permitted disposal well would simply comply with the
rules. Failure to would be a violation of state law.
-------
187
1 This would eliminate lengthy very time consuming
2 and complex written permits. Under Part 122.23 it says the
3 Director shall identify all aquifers or parts of aquifers
4 which are not underground sources of drinking water in
5 accordance with the criteria contained in 146.04. All aquifer
6 not so identified as not underground drinking water sources
7 shall be designated underground sources of drinking water.
8 This is a direct reversal of approach than what
9 146 said. And it says the Director shall designate as under-
10 ground sources of drinking water in the state all aquifers or
11 parts thereof which currently serve as sources of drinking
12 water or which contain water with fewer than 10,000 milligrams
13 per liter of PDS.
14 . We are concerned about the methods of determining
15 underground drinking water sources.to be protected since it
appears that even within the regulations, EPA is proposing
17 that we approach it from two different directions. Data
18 in many areas of'the state is available to indicate sources
19 of drinking water because of its use. In areas where the
20 well control is not available, it would be practically
21 impossible to identify all aquifers which are not under-
22 ground sources of drinking water as required in Section 122.3
23 Pertaining to penalties that state law provides in
24
As I understand it, for a state program to be approved, we
Alabama, the maximum fine is a $1,000 a day for violations.
25
-------
188
1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
would have to amend the state statute to provide penalties
up to $5,000 per day for violations and $10,000 per day for
willful violations. This in itself in Alabama and in other
states will probably or quite possibly be impossible. We have
a tool in Alabama that is more effective than fines. We have
an operator that's got a salt water disposal well that's
going to have some producing wells too, or he will have some
secondary or producing wells under secondary recovery.
If these people violate one of our rules, if they
have an injection well that is malfunctioning and they don't
voluntarily shut it down immediately, we have the right to
revoke their authorization to transport production. We have
the right to shut down all of their operations, whether or
not they are effective in the same facility. And I guarantee
you when you shut off that flow of oil and that gas flow,
you get quick action.
In Alabama we have existing bonds on all operators.
We have a $100,000 blanket bond; we have single well bonds
ranging from $5,000 to %50,000 depending upon the depth of
the well.
The question was raised yesterday about public
comment. In Alabama the law requires that any interested
party may participate in a hearing. And we allow anybody
that wishes to make a statement at a hearing to make it.
I will point this out: We have never had a comment from the
-------
1
2
3
4
5
6
7
8
9
10
11
12
14
15
189
••
i-
public on a salt water disposal well or an injection well.
In Alabama state law requires ten day's notice
published in three specific papers of statewide circulation
and a newspaper of county wide circulation in the county for
which an application is filed. We urge EPA to consider
providing that notice be required according to existing state
laws.
In conclusion, we seriously urge EPA to allow the
substitution of ongoing effective state programs for all or
part of the federal program under the UIC program as it
relates to salt water disposal wells and enhanced recovery
wells. As I understand, there is considerable support for
this—method-by the National Drinking Water Advisory Council.
Finally, we urge that the requirements for the
state program be simplified, be reduced in EPA directed
17
18
19
20
21
22
23
24
25
provisions allowing the state programs to be more flexible
and leave some of the critical determinations at the
discretion of the state Director. Thank you
MR. ECKERT: Thank you, Mr. Hanby. Questions from
the panel?
MR. LEVIN: I have one Mr. Hanby. You indicate
in your statement that you have a system for shutting down
wells where there is a problem cutting off gas flow, etcetera.
Can you tell the panel how often you have actually
had to do that kind of thing within the last five years?
-------
1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
190
r
••
MR. HANBY: In the last five years—Is this all
operations or related to salt water disposal?
im. LEVIN: Related to salt water disposal.
MR. HANBY: We had one instance in the South
Carlton Field where an operator's operations were shut down,
and it was not with any problem with the well; it was dealing
with the tank that stores salt water before it's injected
and it was allowed to overflow.
t
MR. LEVIN: One 'rabre question, can you tell us
something about your monitoring surveillance system of these
wells? How do you find out whether there's a problem or not?
MR. HANBY: Okay. We have several parts of our
program. First of all the wells are constructed with tubing
anchored with a packer and annulus pressure measurements
are required to be submitted to the Board monthly. This is
in our production reporting scheme where we have-the—product^
of oil and gas and salt water, we also have an injection
report which contains the volume of water injected—injectior
pressure and the annulus pressure—He have in each field
some surface water monitoring stations. These are water
supply wells that were drilled when the producing well was
drilled, and when moving to a new field we request the
operators to leave some of these open. We select the ones
hydraulically that would be pertinent to the movement of
the water to the fresh water aquifers. And each month we
-------
191
>•
1 collect samples from these wells ourselves and analyze
2 them in our lab—Actually it's a lab geological survey
3 within the same building. And the results of these analysts
4 or analyses are reported to the Board from the lab it goes
5 through a U.S. Geological Survey review. It's actually on
Q USGS letterhead from the water resources division of USGS
i
7 that's in Tuscalbosa. And they will give us any information
8 on increases or decreases and if we have a significant
- - -j - —
g increase from these reports, we immediately go into the
i
10 field to find the problem. We have never found a problem
11 with a well from'theses tests. The ground water—The, sub-
12 surface water stations have all stayed consistent* We7have
13 ground water stations in the creeks and we have located pipe-
14 lines filled in this manner/ but none of the results of this
15 lengthy monitoring programs have found any indication that
16 any of the injection wells have had a problem.
17 ;In addition to the monitoring--,.ahnulus pressure
18 that the operators submit to us, we have agencies formally
-- , - " f. ' "
19 inspect every well and they have their gages, too.
j i '
20 MR. LEVIN: Thank you very much.
21 ' UMR, SCHNAPH: This was a question that came up
22 several times yesterday and it was the idea that apartmants
-" i
23 had to be modified to changing standards, and I believe
i
24 the section is intended to provide the changing standards
25 should be grounds for modifying the permit where appropriate
-------
192
1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
but it would not require an automatic modification of a permit
MR. HANBY: Who has the authority to determine that.
MR.-..SCHNAPE: Should that not be the Director?
MR. HANBY: The Director of the state program.
MRJ .SCHNSPR: On the question, basically were there
two approaches in the regulations to the designation of
aquifers? One would be to designate those aquifers which
are protected and the other was to designate those which
aren't protected; the presumption being that all others would
fall into the other class. We also have the requirement
that all aquifers of a certain character total dissolved
solids must be designated as drinking water; and I was wonder
which of those two approaches you felt was a better approach
and why?
MR. HANBY: Well, we feel like the first approach
is the best because the fact that we already know where the
fresh water resources in our state are. These have been
identified. Our big concern with this is not knowing
exactly which way to go. It doesn't say you have got an
option. It says you have got to do it according to both
ways and they conflict. .
Our concern is in areas where we don't have many
wells and we're moving rapidly into these directions as we
are developing up in North Alabama. There have not been
many deep wells drilled. We do not know whether some of thea
-------
193
1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
deeper aquifers are not underground drinking water sources.
We may designate them then by not defining them as not
drinking water sources that could be defined as drinking
water sources. And if in fact when we drill a well, we find
out that really they weren'tr then we've got to go through
the process of changing our state program. And it's just
a lengthy process.
And as far as you were talking about the changing
modifying procedures, you know, the state regulatory agencies
began, not in Alabama as early as some of them, back in the
early 1900's. And I can assure you that conditions of
well construction, completion has changed significantly
"since that timer And we haveHnodif ied~6ur~rules"t6" keep up
with changing techniques and we have done it continuously.
And we continue to do it today. And I don't think that this
is going to be a problem. If you have a new technique a new
way to do things.that will protect it, we are going to change
it anyway. ;
MS. STRUCK: Z want to ask a few additional questio
about your permit process. You indicated that you
had a system of filing notices and the state publications
in newspapers. Do you have any system for a mailing list
to send notices to people who request them?
MR. HANBY: Yes, Ma'am. We have a list that's
about 500 long, and we send out our weekly activity report to
-------
194
1 our monthly production report and our notice art results
2 of Board meetings.
3 MS. STRUCK: Thank you. Also, when you post a
4 notice, what documents do you indicate are available for
5 public review?
6 MR. HANBY: For each permit, we do not identify
7 in the notice currently what per se is available. We have
8 a closing statement in the notice that says that copies of
9 all data of permits and all exhibits filed with the Board
10 are on file in our office, and they are.
11 MS. STRUCK: Do you routinely prepare anything like
12 the draft permit that is described in the proposed regulation*
13~ - MRv-HANBY?—Nor Mar^ann—This-ts~one of ouar major
14 concerns. We, just like Dick Stemmons with New Mexico said
15 yesterday, we are quasi judicial and we have to make decision!
based'~on~ expert telitimony^>resentedr in a hearing. We~~canhot~~
be involved in prejudging matters, or if that ever went to
a court of law it would be turned over just like that.
MS. STRUCK: Thank you.
MR. BALTAtt If I may, I want to talk a little
bit about what seems to be your central recommendations
about—refer to FERC experience .and your recommendation that
we also allow the state certain programs and laws. Where I
want to draw you out is that we thought we were sort of
headed in that direction in our intentions here as well that
17
18
19
20
21
22
23
24
25
-------
1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
-16-
17
18
19
20
21
22
23
24
25
195
r
i'
they delegated UIC programs that would rest on state laws
and state authority. And it seemed by the sound of it it
seems we are really talking about the judgment of what is
equivalent and what is not equivalent and what in the state
program would in fact satisfy the needs of the federal.
Are we that far apart to see such a huge radical departure.
Am I correct that we are really talking about a judgment
in equivalence.
MR. HANBY: We are definitely talking about that,
and we feel like we are quite a ways from that. We look at
some of the requirements that I was mentioning today; for the
notice requirements, for the lengthy documents that have to
be-subraitted^ Going, back, to the JL46. We talked about those
in detail Monday. There are many, many requirements in that
that are extremely inflexible. One I didn't even mention
the other~day is~when you subrattnaranappHcation, you have
got to have a log analyst that sends in a written report, and
it implies that this guy has got to be from an expert.
Well, I can assure you that log interpretation is
only done by experts. This logs are the tools that the
industry use to find what's down there. And that and coring
and samples they bring up to the surface. And many companies
have people that their responsibility is solely log inter-
pretation. They are log analysts. There is an association
of log analysts. And no company is going to run a log, pay
-------
1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
196
r
for the log and then have a secretary, or—and don't take
me wrong with using that terra. A truck driver or anybody
could come in and interpret the logs.
MR. BALTAY: The concept here is really—But I'm
not sure it's a fair statement, Mr. Robins, to bring in
effective state programs and many other things that you have
described about the Alabama process offhand sounded like
they are very well qualified to satisfy the program require-
ments in that regard.
I guess what I'm trying to explore is just how
far apart we are, the central idea that we are not out to
pre-empt effective state programs, but if the effective state
programs will satisfy the equivalency requirements.
MR. HANBY: There is definitely a difference of
opinion. In written comment in which we are going to prepare
especially on 122, 23 and 24, extremely more detail and
specific on that. But generally the inflexibility and the
lengthy—Well, for example, the schedules of compliance.
Your permits themselves by the regulations I can invision
as very lengthy documents.
We issue a permit for a guy to build a well. We
have an application form. Now with thio :.-_-. 1 rntion f-irm,
every bit of data that we need is submitted with it. These
are logs, these are samples of injected fluid, these are
estimated fracture gradings, these are estimated injection
-------
197
t
1
2
3
4
5
6
7
8
9
10
11
12
14
15
-46-
17
18
19
20
21
22
23
24
25
pressures, volumes. They have to show us the fresh water
on the log, and they have to show the . . . identify them,
the injection zones.
But these are not part of the permit. And then
we don't write in all these lengthy compliance schedules.
And these are things the state—we just don' t have in our
procedures and they are time consuming, and we see them
unnecessary.
And we go out there and witness these operations.
He have a man that watches them circulate cement to the
surface. We have men that watch,them run bomb logs or
temperature logs. We receive these, and we review them.
And if there's a problem, we go out and.tell the
man and he fixes it then. ,
MR. BALTAY: Thank you, sir.
MS. STRUCK: Just a point of clarification.
On the schedules of compliance the way the proposed
are now written. They are discretionary with the
directives. They are only to be used in permits where the
directive determines that they are appropriate to the permit.
MR. HANBY: That's not perfectly clear I can advise
t
you of that.
MR. SCHNAPH: I think'it would be very helpful
to—I realize that a lot of you haven't had a chance to go
over this in detail, and they are very confusing there is no
-------
1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
123
f
question about that. It takes pretty careful readihg.
But it would be very helpful if have the tine to
give us in detail, to the extant you can, point by point where
you may not have the discretion to iir.plerr.ent some of the re-
quirements .
For instance, on the length of these permits, the
proposed regs could allow you to incorporate so you—I'm
sorry—the current terms and conditions of the regs would, allo
you to incorporate those by reference in the penr.it. You
wouldn't have to have the long permits. On some of these
other things, I think there is more discretion than you
realize.
Things like the schedule of compliance and this
newspaper notice thing, the regs ara very specific in that
the state can do whatever is appropriate to meet the state
law.
Vie do need more comment about how specific require-
ments point by point would interfere with your program.
MR. HAI-I3Y: OK. We will surely do that. And, of
course, with your notice you have got the 30-day comment
period. I realize there is the feeling that we need comment
periods. Like I said, we never had anyone come to a hearing
and say anything about a disposal well. T-."e are looking at
an industry where you have got 15 producing oil wells. And
all of a sudden your salt water disposal well quits operatin<
-------
199
1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
He's got to build another well. He can't put it in a pit;
we won't allow that. He's got to get another well.
So he trucks it while he gets a permit. If you
talk about the possibility of this interrelating with the
RCRA rules, and we have got this surface tank up here—We
may be a 180 days, and you can really seriously affect an
operator.
MR. ECKERT: Could I ask one follow-up question on
that? Would you agree that that comment period and the public
participation mechanisms are appropriate for Class 1 wells?
! MR. HANBY: I'm going to have to just say—I'm not
sure, because I don't do anything with them.
The Oil and Gas Board does not have any jurisdictior
over Class 1 wells. And I would be really just picking off
the top of my head on something I really can't speak to.
MR. ECKERT: Thank you. Anything else?
MR. LEVIN: I want to ask one final question if I
may.
What is the term of your permits? Do they issue
them for a lifetime at the facility or do they ever give them
one?
MR. HANBY: Okay. We is^-ae a permit and that
permit expires within one year unless the well is drilled.
Our law requires that once a well has ceased to
operate and no efforts to restore production or in this case
-------
1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
_16L
17
18
19
20
21
22
23
24
25
200
injection well restore it to injection purposes within 90
*.
days the well is considered abandoned and must be plugged
within 30 days. So you are looking at a 120 days from ceasing
operation the well must be plugged.
MR. LEVIN: Do you have two separate kinds of
permit systems, one to drill and'one to operate? Or, is it
a single permit.
MR. HANBY: It is a single permit. We issue—It
is really the same permit we have for any oil.and gas
well, it just got an extra blank on it that says it converts.
An application to convert.or to drill a salt water disposal
well.
And, when we issue this permit, they start drilling
Before they can start injected, we inspect the facility and
if there is a problem, they can't start until it is fixed.
We-don't issu& another permit, we juat advise them that you
cannot inject until you have done this properly.
MR. ECKERT: Did you want to ask a question?
MR. GORDON: I would like to ask a question.
When you submit written comments, will you specify in what
ways the quasi judicial nature of your body affects the
proposed regulations point by point. Could you include that
in your written comments?
MR. HANBY: Yes, sir. I'll get our lawyer to do
it.
-------
201
1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
MR. HALTAY: Could we ask Mr. Staraets to do an
equivalent thing because I think that was the other instance
where we had a quasi judicial operation.
MR. STAMETS: We will be happy to do that, especiall
if you will give us until October the 15th.
Z would point out that our entire staff is extremely
busy at this time. With natural gas policy applications, we
have over 1,600. We have still got 700 of those to do, and
we get about 20 a week; and we were busy before that started.
MR. BALTAY: Whatever you do would be appreciated
from your staff limitations.
MR. ECKERT: Any further questions?
If not/ thank you for being so kind and staying up
there so long and answering questions.
The next witness is Ms. Karen Shewbart, Texas
Chemical Council.
STATEMENT
OP
KAREN SHEWBART
MS. SHEWBART: I don't have any Aggie jokes.
My name is Karen Shewbart, and I represent the
Texas Chemical Council.
The Texas Chemical Council is an Association of 77
chemical companies having over 72,000 employees and represent
approximately 90 percent of the chemical industry in Texas.
Over half of the nation's petrochemicals are produced by
-------
1
2
3
4
5
6
7
8
9
!0
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
202
member companies operating in Texas, most of which are
located along the Texas Gulf Coast. The Texas Chemical
Council has a long history of. cooperation with environmental
agencies in the furtherance of responsible environmental
legislation and regulation.
Our comments today will be directed toward the
proposed Consolidated Permit Regulations, the permit applicati
as it applies to NPDES permitted facilities and the proposed
NPDES Regulations. Detailed comments on the above-mentioned
subject, as well as the proposed RCRA forms, will be submitted
at a later date.
First the Consolidated Permit Regulations.
The Texas Chemical Council is in favor of any
measures which will streamline the permitting process and
resolve overlaps and inconsistencies among the various
programs.
We believe there is some merit in the concept
of consolidating permit programs affecting water
quality, that is the UIC, NPDES, and RCRA, particularly
in grass roots plants and totally new facilities. However,
we have concerns about the mechanism of the permitting
process itself and its subsequent effects on available
manpower and project timing when applied to existing
facilities.
We believe that the requirement to apply for all
-------
203
r
1 permits simultaneously will tax industries' available
2 manpower resources and will be particularly burdensome
3 to small industries with only one or two persons know-
4 ledgeable in the regulatory area.
5 Additionally, we do not believe that all permits
-.-I
6 held by a facility should be reviewed when any one permit
7 is modified. Consider, for example, a typical manufacturing
8 facility holding, under the new proposed permitting system,
9 UIC, RCRA, and NPDES permits. A modification of the facility
10 affecting only its RCRA permit would, under Section 122.9
11 of these proposed regulations, automatically trigger a review
12 of the facilities' UIC and NPDES permits.
13 Furthermore, we are concerned that delay for any
14 reason in one area would hold up the issuance of a permit
15 in another area, even if that area was not directly affected.
16 This interdependence of permits, when not actuated by a
I7 shift of pollutants from one area to another, is burdensome
l8 in terms of both additional manpower requirements for
19 permit modifications and in potential project delays.
20 The Texas Chemical Council recommends a provision
21 in Section 122.9 to exempt from review those permits not
22 affected by a modification or reissuance or revocation.
23 Additionally, it is recommended that a statement
24 be added provided that no permit be delayed or terminated
25 due to permit considerations in other unrelated areas.
-------
204
r
1 Our final comments on the Consolidated Permit
2 Regulations address the proposed inclusion of PSD applications
3 Since PSD approval is required long before a
4 project needs water permits, it is common practice to
5 develop air data on a project in sufficient detail to
6 support both construction and PSD permits. The development
7 of water quality data generally follows much later. The
8 consolidation of these programs would disrupt the normal
9 path of data development either causing construction delays
10 on projects while both air quality and~sea£«r quality data
'*• *" * ..
11 are developed, or causing inefficient utilization of manpower
12 due to high environmental staffing requirements over a
13 relatively short time period.
14 Since air permits will still have to be reviewed
15 by air regulatory personnel and water permits reviewed by
* . •?
~^ reguTa^tory^erionnel in the water field we do not see any
I7 advantages to this consolidation..
I8 The Texas Chemical Council, therefore, does not
\ • - :..:'".
19 support the incorporation of PSD permits in the consolidated
20 permit program.
21 Furthermore, unless the timing problems, mechanism
: \
22 for review, and an exclusion from review for unaffected
23 permits can be resolved, the Texas Chemical Council cannot
24 fuirly- support the consolidated permit program in the water
, 1
25 area.
-------
205
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
The second area that I wish to address is the
Draft Consolidated Permit Application forms.
Of the permit application forms presented in the
June 14, 1979 Federal Register, the Texas Chemical Council
intends to address only form 2c—the NPDES Permit Application
form—today. Detailed written comments addressing all of
the forms will be submitted for the record before September 12
1979.
In regard to Form 2C, the proposed NPDES Permit
Application, it appears that there are still modifications
which should be made.
Item IX asks for date for Section 311 exemptions,
which was already asked for in Item III-B of the NPDES Permit
Application form. Once data has been made part of the public
record by inclusion in one section of the permit application
form, it seems unnecessary to repeat it elsewhere* .,
Since the preamble to the final NPDES Regulations
states that "Best Management Practices are normally a subpart
"* ' - \ .-"™'-<-»
of SPCC Plans," it is recommended that, in order to obtain
1 • .- i i •_•.._
the Section 311 exemptions, a column be provided in Item IX
to check whether or not Best Management Practices are in
. - -. J ' |- -, ,,, - -.:'-.;,
effect. A section below, IX-B, could be included—could
i • *
include the toxics for which BMP's have also been.developed,
i. '•=••- ..-7 - -
thus eliminating the repetition.
Secondly, the permit Fprm 2C makes no provisions
-------
206
•-
1 in Item V-A and B for new facilities or modifications which
2 do not yet have a discharge and therefore cannot develop
3 the data requested based on actual analysis.
4 This problem will have to be resolved either
5 through the permit form or the instructions for usage.
6 The Texas Chemical Council would also like to
7 comment on the information requested by the form.
8 Item IV-B asks for information describing any
9 water pollution control program either planned or underway.
10 In many cases development of additional water pollution
11 control programs may only be in the conceptual stage where
12 several alternates are being considered.
13 Industry would not want to be committed, in the
14 planning stages, in any one program until all alternatives
15 have been examined. This request seems unreasonable and
16 will have the effect of stifling research into new control
17 programs.
18 The Texas Chemical Council also objects to Item
19 VIII, Data on Pollutants not Reported Elsewhere on this Form.
20 This item asks for information with regards to any
21 analyses performed on effluents within the last five years.
22 There is no reference to the usage of 40 CFR 136, that is
23 the Guidelines Establishing Test Procedures for the Analysis
24 of Pollutants, as a basis for generating this data. However,
25 in the instructions, it is stated that this information may
be used to set permit limits for certain pollutants.
-------
207
1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
Since there is no quality control built into this
question or this item over the sampling techniques or the
analytical methods, the effect is that the quality of the
data used to set permit limitations from this item may be
quite variable.
Additionally, this request will penalize the diligenl
plant which has analyzed its outfalls as opposed to those
who haven't. The results are that the diligent plant may
have permit limits set, and these would be subject to
enforcement action based on the analyses performed where the
plant would just perform no analyses will have no permits
over the discharge of the same pollutants.
The Texas Chemical Council recommends that, to
equalize all industries in these regards. Item VIII of Form
2C should be deleted. At the minimum, permit limitations
should be based only on validated analytical data of the
same quality as required by 40 CFR 136 for the completion
- < ( ' '
of any of the other sections.
And finally, we wish to voice our concerns over
the development of the priority pollutant date requested in
Item V-A and B of the proposed NPpES Form 2C. Our concerns
lie in the following areas.
First of all in sampling. The agency has not
, ' . >-»•'•
promulgated approved methods for sampling. Although the
EPA has decided upon a 72-hour composite sample, the data
-------
208
1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
has* for this sampling period is limited.
Member companies of the Texas Chemical Council
who participated in BAT verification phase sampling were
primarily sampled using 24-hour composites, not 72-hour
composites. We are unaware of any comparison studies made
by the EPA which would provide the rationale for the
committment to 72-hour samples.
We are not opposed to a 72-hour sampling protocol
of itself, however, until a sampling protocol, any sampling
protocol is developed using sound technical and scientific
basis, no meaningful analytical data can be generated.
Second, the analysis of the priority pollutants.
I want to quote the EPA's words here, "The American Society
of Testing Materials does not yet have standardized methods
for many (priority) pollutants, and achievability of a
high degree of precision and accuracy for such analyses is
not universally Acknowledged."
Data generated during verification phse sampling
will be more than one year old at the time of permit appli-
cation and therefore not acceptable.
In addition, through the BAT screening program,
some compounds were eliminated from further consideration
in certain plants. Therefore, no verification phase data
is now available;for all 129 priority pollutants.
Furthermore, the sampling was for product processes
-------
209
1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
not generally end-of-pipe or final outfall. Thus practically
all of the analyses will have to be repeated.
The third point concerning priority pollutants is
the economic factor.
EPA has stated that analyses for priority pollutants
will be expensive. The Texas Chemical Council agrees. Howeve
the EPA cost estimates are grossly inadequate and the real
cost will be far more than estimated.
EPA cost estimates failed to include the EPA
Quality Assurance Program, which proposes to include a
series of spikes and standards. Also, GC-MS instruments
are highly sensitive with a considerable amount of down-time.
These factors will greatly reduce the real sample output
by laboratories.
Furthermore, the economics were prorated over five
years, and yet under the new permitting process permits can
be reopened at any time particularly when effluent guidelines
are promulgated or when other permits are modified.
Finally in regards to the permit limits for
toxics.
In setting permit limits at five times the
average observed values, permit limits will vary on a case-
by-case basis. Responsible companies with optimized treat-
ment facilities will be given lower permit limitations for
toxics than those companies which have not been as diligent
-------
1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
210
in their pollution elimination efforts. We think that this
is unfair.
In summary, we feel that the proposal of permit
limitations on toxics at this time is premature. Sampling
techniques are not developed, analytical methods have not
been agreed upon, the cost of analysis is considerable and
the analyses will, in all liklihood, have to be repeated
when validated methods become available. A very real timing
problem exists in obtaining the necessary data in time for
permits issuing in 1980 and 1981. ,.
The Texas Chemical Council recommends the inclusion
of toxics, data, along with permit limitations, be reserved
pending promulgation of effluent guidelines.
This would allow for equalization of permit
limitations among similar industries and would not allow
any one company an unfair advantage over another. Since
the deadlines for development of effluent guidelines have been
extended, the Texas Chemical Council is asking that the
EPA extend the period for reporting toxic data accordingly
until after•effluent guidelines have been finalized.
Thank you for this opportunity to comment.
MR. LEVIN: Thank you, Ms. Shewbart. Would you be
willing to entertain questions.
MS. SHEWBART: Yes.
MR. BALTAY: The general waste benefits from,the
-------
211
~
1
2
3
4
5
6
7
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
Consolidated Permitting Process would agree to the companies
to the regulating communities , so I was a little bit
surprised that you were looking the horse in the mouth.
Isn't there some kind of economy scale — Isn't
there some saving to the company when you deal with the
effluent stream at one time in one city — subject yourself
to the permitting process once.
MS. SHEWBART: It is hard to see what the advantages
would be given the manpower constraints under to try to
work on all of these permits at one time would be extremely
difficult.
MR. BALTAY: But doesn't it rationalize your
planning and simplify your life if you can deal with your
waste stream in one sitting? As one integrated process,
some kind of permit application form, surely there must be
some saving scale that would agree to
MS. SHEWBART: It is not apparent to us.
MS. STRUCK: I wanted to ask you to elaborate
a little bit on a suggestion you made about the review of
a multiple permits for the same facility. You suggested that
the proposed review should not take place where there is no
relationship between the permits. How would you suggest
making the determination on a practicle basis?
MS. SHEWBART: I think we are talking — we were
thinking specifically about the RCRA permits where there
-------
212
1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
may be no discharge; it seems to me that that should stand
alone.
. STRUCK: What if the change to another permit—
What if the change to the RCRA permit would involve a
discharge? Wouldn't that then trigger some relationship
between possible —
MS. SHEWBART: If there is in fact a relationship,
yes, they should be considered together. But if it is an
unrelated system, we don't feel that all the permits should
be subject to review and reopening.
MR. ECKERT: But you wouldn't have any objection
to require Directors simply look at the permits and write
a memorandum, or just write down a determination that would
be his review.
MS. SHEWBART: I think there needs to be a lot
of clarification and a lot of things spelled out in~the
regulations that are not there today.
MR. ECKERT: If that was clarified, would you
have a problem with it?
MS. SHEWBART: Would you restate the question?
MR. ECKERT: If the Director could simply — If we
were to define the review as meaning a case where there was
an irrelationship between the altered permit and the other
permits, simply the Directors writing down on a piece of
paper somewhere putting it in a file and a statement saying
-------
213
r
1 that there was—and that was his review.
2 MS. SHEWBART: Again, I can't see the point of
3 reviewing a totally isolated and unrealted permit at all.
4 MR. ECKERT: But someone has to find out whether
5 there is a relationship.
6 MS. SHEWBART: Then that is the thing that should
7 be written in, that they have made that determination that
8 there is no relationship. Therefore, no review is necessary
9 of a RCRA permit and NPDES, UIC, whatever.
10 MS. STRUCK: You would have no objections in that
11 kind of review just to determine the relationship.
12 MS. SHEWBART: I guess I don't call that a review.
13 We need to define a review.
14 MS. STRUCK: A couple of other points of clarifi-
15 cation, and these came up yesterday as well.
16 AS far as the PSD permits, what we have done
17 basically is provide the same procedures permit issuance
18 for 124 but not mandate that the PSD permits be applied for
19 together with the other permits or processed together in
20 every case only where the Director determines that it is
21 appropriate as that requires. In many cases you might not
22 have that on a joint processing situation if there is some
23 kind of timing problem.
24 The other thing is the delayed provisions in
25 submitting applications are optional at the option of the
-------
214
1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
applicant and not at the option of the EPA or the state.
So that it is completely up to the company to determine
whether it is to their advantage to delay applications being
submitted in order to consolidate the requirements.
Another point is, that the appeal of one permit
in general would not require any kind of delay and issuance
of other permits because one permit has been appealed.
If only would be issues or link where there is a definite
relationship. You can't decide an appeal on one permit
without considering other permits that we have had any kind
of delay inserted into these procedures for the related
permits.
MR. ECKERT: Along the same lines that Heather
was talking on here, your statement that you believe that
the requirements to apply for all permits simultaneously
will tax industries' available manpower resources, that
there is not a requirement to apply for all permits simul-
taneously.
There is an opportunity to delay one permit—
one application to coincide with another one but is not a
requirement of the regulation.
MS. SHEWBART: I think that all needs to be
clarified to where we all understand it that way.
MR. ECKERT: I would like to ask one follow-up
question on the business of the five times listed in the
-------
215
1 application.
2 You indicated that one of the problems was that
3 effluent guidelines would be coming out. I am not sure
4 I understood your statement on that. Would you favor, or
5 at least not object to the application of limited discharge
6 provision if it would defer an application until after the
7 effluent guidelines had been issued?
8 MS. SHEWBART: Yes. I don't think at this point
9 when we are in this interim stage that we should be required
to give—to have permit limitations based on four toxics
at this point in time where there is no effluent guidelines
12
or best engineering judgment or anything of that sort being
13
applied that we should have limitations on toxics.
14 MR. ECKERT: Okay, thank you. Are there any other
questions from the panel?
1 fi
Thank you very much. I appreciate your statement.
17
Our next witness is D. V. True, Pollution Control
18
Manager, City Service Company, Tulsa, Oklahoma.
19
Mr. True, do you have a copy of your statement?
20
MR. TRUE: No, unfortunately I have no written
21
comments; I would like to just make a few general comments.
22
We will be giving details—specific comments at a later
23 , .
date.
24
25
-------
216
1 STATEMENT
2 OF
3 D. V. TRUE
4 MR. TRUE: First I would like to commend EPA on
5 their efforts and their accomplishments in consolidating
6 these various programs in the one permit—permitting program.
7 However, I would like to point out that the directive to
8 do this program had two aims: One was to consolidate the
9 permit, which I think you have done in excellent fashion;
10 but the other one was to also simplify, and I think that you
11 failed completely in the simplification of the permitting
12 process.
I would like to urge you that now that you have
14 done this consolidation and done the legalistic work of
putting these permitting applications together that you would
•to
go back and look at trying to simplify the process.
One of the things as an example of this—We see
18 two problems in the permit issuing. One is a new facility
19 where detailed information is needed for facility and to
20 secure the necessary permits for it.
21 However, we see an entirely different situation
22 where a renewal of a permit or a group of permits is required,
23 We see no reason why we shouldn't make a simple
application,,or even with your data in your regional offices
25
computerized, that you could give up a notice say 180 days
-------
1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
217
prior to the time that permits would be terminating by
asking us if we wanted to make a renewal of a permit, one
question; the second question/ simply asking/ is there any
change in the permitting conditions or the operation of
your plant.
With this information in hand and the prior
information that we have provided you, we feel—see no
reason why permits should not be reissued in a relatively
simple fashion.
We would like to see your—have your consideration
of some things like this that would simplify the permit
renewal application.
Frankly, we have a, in our facilities, we have
approximately 100 NPDES permits. We will be looking at
RCRA permits for numerous applications in our facilities,
the OIC permits. We have the whole cabinet of all the types
of permits, and we feel that in some of the simplier and
smaller plants the mass of data that you are asking for,
the forms that you are asking for, will simply serve to
confuse the situation and complicate it unnecessarily.
On the items that we would like to comment on on
specifics. Civil Housekeeping items, Section 122.3 where you
define an aquifer.
The proper definition for this term, as we under-
stand it, is simply a water-bearing sand or water-bearing
-------
218
1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
formation. You have added the definition of usable quantity
of ground water. We feel that this definition should come
into the definition of an underground drinking water source
not as a definition of an aquifer.
And also in 122.3, you define stratum as being
a sedimentary formation. We would like to point out that
there are numerous other formations that are also stratum
geologically speaking.
You also define a major hazardous waste management
facility, with the arbitrary classification of 5,000 tons
per year. We would like to point out that this is—has
no significance as far as we are concerned because we feel
that a facility that is handling a much smaller amount of
a potentially toxic or hazardous material is potentially
a much more hazardous facility than one that is handling a
17
18
19
20
21
22
23
24
25
large volume of a low toxic material or a minimal hazard.
We would like to ask in 122.11 where you have the
general conditions of your permit, that there should be
some consideration as far as liability of the permitting
agency for any injury or damage that is caused by or two
agency representatives in connection with their inspection
sampling and other activities on the permitting properties.
In other words, we have a little concern about
opening our doors to the agency coming in and performing
these activities on our property, perhaps exposing themselves
-------
219
1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
to dangerous conditions or causing dangerous conditions
in our plant. We feel that we should not have that liability
when it is imposed upon by the regulatory agency.
The other point on as far as liability is concerned
in these general conditions, is that we feel that the
permitting agency should also accept a liability for any
activities that we carry forward at the direction of the
agency.
In other words, if under RCRA you would require
us to put in monitoring wells for an existing site, and
when we comply with your regulation and put these monitoring
wells in and then find that we have punctured a confining
strata or caused contamination of an underground drinking
water source, that we should not be liable for the situation.
This should be a liability of the permitting agency.
In Section 122.14D, the regulation contains a
provision for internal monitoring or third party analysis
that indicates that the violation has occurred has to be
recorded to the agency.
We feel that this is strictly contrary to the law,
and that the NPDES program is only concerned with the under
pipe discharge or discharge out of the plant and any internal
data or internal concerns of the plant are beyond the
authority of the EPA at this point.
In 122.26 where you have your regulations, as far
-------
220
1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
-16-
17
18
19
20
21
22
23
24
25
as permit by rule, we commend EPA on this concept as far
as the hazardous waste management facilities for the special
wastes.
And in the comment note that you have in your
regulations, where your special wastes are listed, we would
like to ask that you include in that listing all shell
processing wastes which we feel are similar to the other
special wastes that you have mentioned.
We would also like to comment on the impact of
the 40 CFR 250 43-1 signing requirements which are again
expressed in your proposed Consolidated Permit Regulation.
As you propose these siting regulations, would
effectively prohibit a significant segment of the energy
and minerals industry.
For example, the nebulous and poorly defined
active fault zone could prevent expiration production
activities in the State of California, Wyoming, Idaho,
Colorado and Utah.
We sincerely hope that EPA will redefine active
fault zone and the other site requirements. Any new
definition should be flexible enough to allow for these
siting problems.
Concerning Sections 14604 and 122.33 where
Mr. Hanby pointed out in one place you asked for the
underground drinking water sources good aquifers to be
-------
„-/
221
»•
1 located in one section and the other section you asked
2 that the ones that are not good drinking water aquifers
3 be point out.
4 We feel that you need to have a definition of the
5 accepted aquifer or the nondrinking water aquifer, and we
6 suggest that the concepts that you have on the 146.04 where
7 you exempt any mineral oil and geothermal energy producing
8 strata; and situations have adapted their location which
9 makes their recovery of water for drinking water purposes
10 economically or technologically impractical or being so
11 contaminated that the uneconomical or technically impractical
12 to render the water fit for hum consumption.
13 We are also concerned that you have these two
14 points—contradictory points—sections rather—You have
15 this designation of either good or bad drinking water
16 aquifers.
17 However, you have no action for us in your
18 regulations. Having designated these aquifers or these
19 nonaquifers, what is to be done?
20 we understand the implication that the nondrinking
21 water aquifer would not be afforded the same degree of
22 protection as the drinking water aquifers, but there is
23 nothing in the regulations that states this. There is
24 nothing in the regulations that states that we will not
25 have to have a permit for facilities that we put in in a
-------
222
r
1 nondrinking water area.
2 We understand the meaning, but we don't see it
3 in the regulations.
4 In Section 122.37, you have additional requirements
5 for the area permits; and we see no basis for these in your
6 separate UIC requirements which were stated in the 146.21D.
7 We question whether you have the legal right to apply these
8 additional requirements for the area permits.
9 In 122.38A, this is where you require the plugging
10 or correction of improperly completed wells in the areas
11 of review.
12 We are concerned about the problem that we as
!3 an owner and operator of an injection facility or imposed
14 injection facility, have no legal right to go into wells
15 in this area of review that are owned by another person
16 or another corporation.
17 The agency—the issuing agency has the authority
18 to ask that person to correct the situation in their wells
19 or to correct a problem in a well where it is owned by
20 another individual. But we, as a separate owner, do not
21 have that right.
22 Therefore, the agency should provide us this or
23 take this action to correct this privilege or if it is an
24 abandoned well, they should provide us with authority to
25 go in and do the corrective action ourselves.
-------
223
»•
1 In Section 122.61, we have a statement where
2 absent a NPDES permit that we have no permission to discharge
3 or to continue our operations.
4 We are concerned with the fact that in the June 7th
5 regulations, which are presently finalized, under 122.12B
6 there is qualifications for this requirement where we can
7 make a proper application and the permit has not been issued
8 by the agency that we are allowed to continue our operation,
9 we have had experience with—There have been no NPDES permits
10 issued as far as I know for oil and gas operations in the
11 Gulf of Mexico.
12 Permits have been applied for with an acting under
13 that applied permit situation for some four years, and this
14 situation we are afraid will continue to exist until we
15 feel that we need to have this exemption where we have acted
16 to apply for these permits and the agency has not reacted.
17 In Section 122.64 on the new proposed NPDES section,
18 under D-20; we have a comment that any additional information
19 on the discharge from a point source may be required by the
20 Director, including bi-monitoring or any other analysis or
21 data that he feels necessary.
22 This comment and directive is too vague and too
23 open-ended. It almost amounts to a blank check for the
24 Director or issuing agency to require any and all extensive
25 information that we may not have available or may not know;
-------
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
224
»•
and we may have to go out and precure this by hiring con-
sultants and doing other actions that could be a tremendous
expense. It amounts to a blank check almost for the Director
to do any fishing for information or data that he might
feel—that he might like to have.
We have no objection to providing the data that is
available and that we know or that we have available in the
facility; but, we don't like to have the problem of having
to provide any and all data that might be requested.
In 122.64D, 11 and 16, we have a requirement for
this laundry list of a 129 pollutants. We understand and
we realize the situation that EPA under in being forced to
ask for these 129 pollutants.
However, we question the necessity for analyzing
*
for all of these pollutants in many of our facilities where
our function—For, instance, in a metal mining and processing
facility where logically only the metals would be present
in the effluent, we see no need for analyzing for all of
these organics or all of these pesticides.
We feel that there should be some reason applied
to this—active for this laundry list.
And in 122.68A21i-ii, we are concerned with this
factor five that has been mentioned before, we feel that
it is completely unsubstantiated by data and also extremely
unlikely that any one factor such as the five would apply
-------
225
1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
to all data,
We can see where, dependent upon the type of
material that the analysis was performed upon, sampling
variability, process variability, the amicable variability
that each one of these compounds would probably have a
factor of its own.
There might be some grouping that could be done
by family. But just pull the arbitrary factor of five out
of the air we feel is—We really don't know where we stand
on it. It might be too lenient, it might be too rigid.
These are all of my comments, I would be glad
to answer any questions. Thank you.
MS. STRUCK: Thank you for the comments. They
are very thorough and should help us quite a bit.
I just had one point of clarification.
You indicated that you didn't see comparable
positions in the consolidated regs similar to what you saw
for the continuation of permits—NPDES permits. To direct
you to 122.8 of the consolidated regs, because we have
picked up that same requirement for the other permits as
well as NPDES where EPA is the permitting authority.
MR. SCHNAPH: I have a question on this matter
of inspectors; liability to the inspections.
Do you know of any instances where there has
been any inspectors?
-------
226
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
MR. TRUE: No we don't. We have tried to make
them comply with our safety requirements and all of our
requirements when they have come into the plant; but we
have daily situations in the plant, and we have been
concerned about—if a person from EPA come into our plant,
and fell into our outfall and drowned. We have a respon-
sibility for any person on our plant property. However,
we feel that this is also your responsibility.
MR. SKINNER: Your comment on the 5,000 tons
per year as being the indicator for which permits EPA
would review when the state had a state program.
We realize the point you make is very valid, but
there may be a lesser amount of waste that would be more
hazardous and perhaps those are the terms that should be
reviewed.
The reason we selected 5,000 tons a year is to
give states some indication of which permits we would be
overseeing and which permits we would not be overseeing.
There certainly would not be anything that would
preclude the agency and the state to select other permits
to be reviewed as well for extremely hazardous waste.
My question is, do you think there should be
such an indicator in the regulation as to which permits
would automatically be reviewed, and if so, would you
suggest something different from 5,000 tons per year?
-------
227
1 MR. TRUE: Yes, I would definitely suggest that
9
the volume of waste no indication of the problem at all.
3 For instance, many of the wastes that we will
4 be handling and the refining of facilities are what we
consider extremely low hazard, but they are also under
c
extremely large volume.
7
We think that a depressionary clause where
Q
possibly a ten percent of the permits in the state or a
Q
certain percentage of the—of what you call most hazardous
permits in the state and the selection being left up to
the state agency.
12
A proper sampling procedure proportion of the
13
state's permits should be acceptable.
14 MR. BALTAY: I wonder if I could get some clari-
fication in two areas: First, could you mention again—
16
discuss the area of permits. Would you go through that
17
point for me one more time? I believe you mentioned the
18
consolidated acts of additional requirements for the area
19
permit.
20
MR. TRUE: You are talking about the siting
21
requirements?
22
MR. LEVIN: I think Mr. Baltay is referring to
23
your statement where you question our legality in requesting
24
information of the area permits; the specific section is
25
122.37 with your citation.
-------
228
1 MR. TRUE: Okay. In 122.37 you have a
2 requirement for—I don't have the law here in front of me—
3 but you have a listing of the—of additional requirements,
4 and we identify those in the separate UIC requirements under
5 146.21D. So I wonder where you got those additional
6 requirements from since there is no legal background in
7 the act itself; I mean in the 146 designation.
8 MR. BALTAY: If we are discussing 122.37 area
9 permits, I guess we were not thinking of those as require-
10 ments, we were thinking of those to define the conditions
11 under which an area permit may be used in lieu of the
12 individual citationer.
13 So it is not as if these were action requirements,
14 something that becomes incumbent. But these are really
15 criteria for the use of the permitting authority to judge
whether^this~appl±carrt^would™qualify for an area permit
17
18
19
20
21
22
23
24
25
as opposed to a number of individual permits.
MR. TRUE: I follow your reasoning, but it is
difficult for me to make the fine line between a condition
and a requirement. There may be a legalistic term.
MR. BALTAY: There is no requirement to the
same construction. The question is if they happen to be
then you are eligible for an area permit, if they are not
that way, then we have a case-by-case permit.
The other point I wanted to drag you out on is
-------
229
1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
the point you made with regard to underground source of
drinking water and spelling out the consequences of that.
As you know probably, there is a question speci-
fically in the preamble that points out that at one point
you were looking at restricting the scope of regulations
to those that penetrate into above-ground drinking water
systems.
I guess I would like to solicit some of your
ideas and recommendations in regard to that question.
Is it really possible with the fluids injection operation
on some basis to the drinking water sources or trying to
make that judgment whether or not there is some.conceivable
impact or lateral migration that might occur from this
practice.
MR. TRUE: Well, we feel at the very least that
areas where there are no known drinking water aquifers or
where drinking water aquifers are already contaminated either
naturally or by—or historically, that surely there should
not be the same degree of protection afforded to these
areas or is necessary for these areas as those areas where
there are good drinking water aquifers.
However, the degree of this, I also realize your
position in that we cannot logically ask for a blank check
to go in and do any and all injection that we wish in these
areas.
-------
230
t-
1 However, I feel that where we are injecting
2 wastes into these areas, and they are already contaminated,
3 that we should be allowed to continue with our operations;
4 we should not be restricted in that case.
5 MR. BALTAY: How would you fashion such an araend-
6 ment. Would you do that in terms of requirements or
7 construction? Just how would you express that?
8 MR. TRUE: I think that—I am making a general
9 comment here probably without too much thinking—but, logi-
10 cally I would feel that it would depend again—there would
11 have to be some judgment called upon the degree of hazard
12 or the type of material that is called upon to be injected.
13 Possibly Class 1 wells, we would be a little
14 more concerned with Class 1 wells under all circumstances.
15 I think Class 2 wells, we feel fairly free that they should
16 be allowed ta go ahead with the present operation they
17 have.
18 And Class 3 wells, we feel that there are special
19 cases there where operations are such that they should not
20 be retested.
21 MR. BALTAY: Thank you, Mr. True.
22 MR. ECKERT: Any other questions by the panel.
23 Thank you very much sir. Are there any other
24 persons who wish to present testimony who hasn't had an
25 opportunity to sign up?
-------
231
1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
If not, I want to extend on behalf of the panel
thanks to all the speakers that participated in this hearing
and at the hearings yesterday and the day before; and we
close the formal portion hearing. We will now go off the
record.
(Whereupon, at 10:40 a.m. the hearing was closed.)
-------
232
1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
This is to certify that the attached proceedings
before the U. S. Environmental Protection Agency were aad as
therein appears; and that this is the transcript thereof
for the files of the Agency.
• J
etty Morgan, Reporter
-------
I
------- |