THE STANDARD – MARCH 2015
From Frack to Fill – Part 2
Since our first article, “From Frack to Fill” in the fall of 2014, discussing oil and gas waste disposal practices, the Pennsylvania Department of Environmental Protection (PA DEP) released its much awaited Technologically Enhanced Naturally Occurring Radioactive Materials (TENORM) study report. The study concluded there is little potential for radiation exposure from flowback waters, treatment solids and drill cuttings, as well as the transportation, storage and disposal of drilling wastes. This is good news for the public as well as the industry.
Wastes that may contain small quantities of TENORM are being generated during oil and gas development. The industry should be applauded for its successful recycling efforts. However, not all waste can be recycled and must be disposed of properly. Beginning January 1, 2015, landfills in Pennsylvania have new limitations on the amount of oil and gas derived TENORM that they accept for disposal. A landfill’s TENORM allocation is now calculated on a monthly basis rather than a yearly basis, and a multiplier of 3 is now applied to each load of sludge. Solid waste facilities in West Virginia that accept TENORM for disposal require laboratory testing for Radium (Ra)-226 and Ra-228 if TENORM is suspected or if screening data exceeds natural background. If the combined Ra-226 and Ra-228 concentration exceeds 5 picocuries per gram (5 pCi/g), the waste must be sent to a permitted radioactive waste disposal facility. TENORM concentrations > 5 pCi/g are not allowed in Ohio landfills. In Pennsylvania, the PA DEP must be notified if a concentration of 5 pCi/L is exceeded.
It is important to understand how Ra concentrations are determined and if the data are of acceptable quality and defensible. The analytical methods are complicated and the samples challenging. Oil and gas development wastes often have high ionic strength from salts and dissolved solid content that may interfere with the laboratories ability to meet data quality objectives when reporting Ra. According to a 2014 American Chemical Society article, this is particularly a concern for liquids, such as flowback water.. In this study, US EPA Methods 903.0 and 904.0, using an alpha particle counting system, were questionable because of the observed low Ra-226 recoveries and dilutions required. This could result in Ra concentrations being grossly underreported. Gamma spectroscopy methodology, such as US EPA Method 901.1 and US Department of Energy Method 220.127.116.11, proved vastly more reliable than other techniques and is the analytical technique required in Ohio. Pennsylvania and West Virginia do not have definitive analytical requirements at this time.
Development and validation of effective methods for the analysis of Ra in oil and gas wastes, particularly water, sludge, and filter cake samples, are critical to appropriate regulatory and public health decision making.
Contact Environmental Standards for TENORM QA guidance or other chemistry QA services.
Environmental Standards Welcomes Dan McCarthy
Dan McCarthy joined Environmental Standards as Director of Information Technology and will be based in our Valley Forge, Pennsylvania, headquarters. With more than 25 years of experience in the field of information management, Dan brings expertise in data management and analysis, program management and implementation, and project coordination and management to Environmental Standards.
Dan’s experience has focused on the design, implementation, and management of solutions that involve information technology processes to collect, manage, and report geological, chemical, financial, and spatial data.
Dan will work with the firm’s partners and senior project managers on the further development and execution of strategy for multiple market sectors throughout the United States, with particular focus in oil and gas (both downstream and upstream), rail, specialty chemicals, and mining.
New Pennsylvania Governor Proposes Severance Tax on Natural Gas Wells
Democrat Tom Wolf was elected as the new governor of Pennsylvania in November 2014, and took office in January 2015. A large part of Governor Wolf’s campaign focused on taxing natural gas extraction to make up for Federal education funding cuts from recent years. Governor Wolf stated that Pennsylvania ranks 45th in the nation in percentage of state funding for public education. On February 11, 2015, Governor Wolf rolled out the tax proposal, named the Education Reinvestment Act, which includes a 5% severance tax plus 4.7 cents per thousand feet of volume on extraction of natural gas production. The Education Reinvestment Act is expected to generate over a billion dollars in fiscal year 2017, and is modeled on West Virginia’s severance tax plan. Governor Wolf’s proposal is to use the majority of the revenue to support education with the remainder of the funds going to local governments and the Pennsylvania Department of Environmental Protection.
Not surprisingly, the proposed tax has received push back from the natural gas industry. The Marcellus Shale Coalition, an industry coalition that works with exploration and production, midstream, and supply chain partners in the Appalachian Basin, released a statement regarding Governor Wolf’s energy tax proposal. The statement identified that natural gas operators pay the same taxes as other businesses in Pennsylvania, and those taxes helped generate more than $2.1 billion through 2013. The statement goes on to say that Pennsylvania is the only state that imposes a special impact tax, which is estimated to have generated nearly $830 million by April this year. Sixty percent of the revenue from the special impact tax is funneled directly to the communities where the drilling is occurring. The rest goes to various state agencies involved in regulating drilling and the Marcellus Legacy Fund, which is spread out around the state for environmental and infrastructure projects. Additionally, the Marcellus Shale Coalition identified that Pennsylvanians have benefited from $700 million in royalties from energy development on public lands.
The Education Reinvestment Act is proposed to go into effect in 2016, with realized revenue in 2017. If enacted, the Education Reinvestment Act will eliminate the special impact tax. The proposed act is likely to get some resistance in the state’s Republican-controlled legislature, although lawmakers from both parties have proposed their own versions of similar taxes.
US EPA Promotes Enhanced Access to Inspection and Compliance Data
The US EPA recently updated its compliance website. The site was promoted in a blog post by Marion Herz, Chief of Staff for US EPA’s Office of Compliance, in February 2015. The website provides access to Enforcement and Compliance History Online (ECHO), a tool providing analysis of compliance and enforcement data through dashboards, maps, and charts. This is part of an ongoing initiative by the US EPA to make environmental data easily accessible to the public, to workers, and to the regulated community.
While the release of data is not new, improved tools and accessibility are driving the next generation of information portals. It is more important than ever to effectively manage compliance information to ensure your company is aware of the US EPA record for your facilities. Ensuring the accuracy of public data is an ongoing challenge serving everyone’s best interest. Some states, such as Maine, have offered supplements to the ECHO site. In an effort to ensure the facts are clear, Maine addresses concerns regarding differences in terminology that may lead to a “false impression of inactivity, or inappropriately harsh activity, when reviewing a report created with ECHO.”
ECHO provides information on over 800,000 facilities nationwide. The US EPA has committed to rapidly updating records of inspections, violations, and enforcement actions. In the past, these online records have received as many as 2 million visits per year. In its newest form, ECHO is designed for the masses using mainstream technology. The US EPA encourages web developers to build its data directly into their own apps and web pages. Additionally, the US EPA Compliance and Enforcement website provides access to other tools supporting information about potential pollution sources such as greenhouse gases, wastewater discharges, and toxic chemicals. The Agency promises there will be “more to come as we continue to advance our commitment to inform and empower the public.”
Proposed 2015 Method Update Rule for 40 CFR Part 136
On February 19, 2015, the US EPA released the proposed 2015 Method Update Rule (MUR) for 40 CFR Part 136 in the Federal Register. Comments are due to the US EPA on the proposed rule by April 20, 2015. 40 CFR Part 136 identifies acceptable analysis methods for industries and municipalities that are required by regulations promulgated under the Clean Water Act to analyze the chemical, physical, and biological components of wastewater and other environmental samples.
Included in the proposed 2015 MUR are:
- Revisions to Methods 608 (Organochlorine Pesticides and PCBs by GC/HSD), 624 (Purgeables by GC/MS), and 625 (Base/Neutrals and Acids by GC/MS),
- Minor corrections to several microbiological methods,
- New versions of many Standard Methods and ASTM Methods,
- A handful of new methods, and,
- Changes to the procedure for determining the method detection limit (MDL).
Many of the proposed changes are likely to be of interest to the regulated community.
Please contact Principal Chemist David R. Blye, CEAC (firstname.lastname@example.org) for more information on having Environmental Standards, Inc. review the proposed updates to 40 CFR Part 136 and develop comments to the US EPA on your company’s behalf. There is a potential cost-sharing opportunity if multiple organizations are interested in a general review. In addition, a review can be performed and comments developed with your specific NPDES permit in mind.
Environmental Standards assisted industry and municipal stakeholders in providing significant technical comments to the 2012 MUR, particularly for Method 1668C that ultimately did not get promulgated.
Herbal Supplements: Buyer Beware
Four major retailers – GNC, Target, Walgreens, and Walmart – were recently told by the New York State Attorney General’s Office to stop selling fraudulent and potentially dangerous herbal supplements, according to a New York Times blog post. DNA tests were conducted on the products in order to identify the unique genetic fingerprints from the plants and herbs that the supplements supposedly contained. Based on the results, it was determined that many of the supplements contained nothing more than generic fillers and minimal amounts (if any) of the actual herbs or plants listed on their labels.
The most troubling outcome of this investigation was the degree of contamination observed in these products following the detection of DNA fingerprints from many unlisted ingredients. For example, a batch of ginko biloba was found to contain powdered radish, houseplants, and wheat, despite a label that stated the product was wheat and gluten-free. Other products tested negative for the herbs listed on their labels, but contained fillers from the class of plants that includes peanuts and soybeans, both of which are hazardous for people who are allergic to such constituents. It is important to note that during the manufacturing process of supplements, the DNA of the active plant ingredient can be destroyed and therefore, the DNA testing that was performed on these supplements could be inconclusive for that particular ingredient. However, this does not controvert the fact that the DNA tests were conclusive for many contaminants that were initially unlisted on the product labels.
Under the Dietary Supplement Health and Education Act of 1994 (DSHEA), the manufacturers of dietary supplements are prohibited from marketing products that are misbranded or adulterated, meaning that firms must evaluate the safety and labeling of their products before they are marketed to ensure that they conform to all DSHEA and Food and Drug Administration (FDA) standards. The FDA regulates and targets individual supplements that are found to contain dangerous ingredients, but the system has essentially operated under an honor code, and the repercussions of selling adulterated or misbranded dietary supplements have not been severe. In fact, this threat of legal action against these large retailers and drugs stores was the first time that a law enforcement agency has imposed such fractions for selling mislabeled or impure dietary supplement products.
Serious injuries and even fatalities have occurred due to the use of contaminated supplements in recent years, including a 2013 outbreak of hepatitis in 72 individuals across 16 states, as well as the death of an infant after receiving a probiotic that was contaminated with yeast just last year. Supplements are not exposed to the FDA’s premarket approval standards that exist in the pharmaceutical industry, but after this investigation, regulators will likely force supplement manufacturers to prove what ingredients and components are in their products on a regular basis in order to minimize potentially harmful situations. At Vitale Scientific Associates, LLC (VSA), we help our clients develop analytical testing programs and quality assurance plans to monitor and maintain product quality and to meet regulatory standards. If you have any questions regarding these services please contact David Thal or Evan Ogburn at 865-376-7590.
Work Continues on US DOE Data Management Implementation
In early 2014, a multi-disciplinary team was assembled to deploy EQuIS™ environmental data management software solutions across the US Department of Energy’s (US DOE’s) portfolio of legacy management sites. The decision to migrate environmental data from an already existing platform to EQuIS was made upon the successful outcome of an extensive pilot evaluation performed by US DOE and consultant S.M. Stoller with help from EarthSoft® and Environmental Standards, Inc. As a result of the favorable outcome, Environmental Standards was requested by EarthSoft to provide support in the implementation of a robust commercial environmental data management system and the migration of environmental data for over 90 sites falling under CERCLA, RCRA, and FUSRAP. Environmental Standards is proud to continue to support the team in this endeavor with the goal of completing the migration by the end of 2015.
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Laboratory Employee Sentenced in Water Quality Fraud Case
The December 2014 issue of The Standard contained an article titled “A Laboratory’s Fall From Excellence to Fraud,” describing the case against John W. Shelton of Appalachian Laboratories. US Attorney Booth Goodwin recently announced that Mr. Shelton was sentenced to 21 months in federal prison. Mr. Shelton pleaded guilty to conspiring to violate the Clean Water Act. He admitted that he, and other employees, tampered with water samples to make them appear within permissible levels. He stated he diluted samples by adding distilled water, and substituted water samples from the “honeyhole,” named such because samples taken from that spot were always within permissible limits. Each time samples were diluted or water was substituted, Shelton probably allowed excessive pollutants to be discharged from mining operations into adjacent creeks and rivers.
Shelton also admitted that he and other Appalachian Laboratory employees failed to place samples on ice as required by law, and instead kept them in their trucks all day.
New Proposed US EPA Regulations Address Byproduct Materials Produced by Uranium In-Situ Recovery
In January 2015, the US EPA proposed new regulations under 40 CFR Part 192 “Health and Environmental Protection Standards for Uranium and Thorium Mill Tailings.” These regulations have been proposed to address what the US EPA views as the most significant hazards associated with uranium in-situ recovery (ISR) operations. ISR is the dominant approach for uranium recovery and mining. Whether the US EPA has legal authority to regulate the ISR mining under these proposed regulations will certainly be challenged. Currently the Nuclear Regulatory Commission has the authority to regulate uranium mining, where the US EPA’s role is to set water quality standards. However, if the regulations are ultimately promulgated this will add new health and environmental protection standards to regulations promulgated under the Uranium Mill Tailings Radiation Control Act of 1978 (UMTRCA). The regulations will then be implemented by the NRC under 42 U.S.C. 2022(b),(d).
The proposed regulations describe the US EPA’s intent for what they describe as a more rigorous approach for (a) determining background groundwater concentrations, which are necessary to establish appropriate restoration goals, (b) establishing restoration goals, and (c) demonstrating the continued stability of groundwater after restoration. In addition, prolonged stability monitoring will be needed to provide the necessary level of confidence that groundwater quality will not degrade over time or promote contaminant migration in the future. Current NRC requirements, and these proposed requirements point to the critical nature of a field sampling and analytical program that is accurate, consistent, and comparable over the period of time from pre- (baseline or background data collection) to post-operation. Proper and consistent collection and analysis of geochemical constituents will be the key to geochemical modeling and the statistical comparison of the constituents to regulatory levels.
Important components in this US EPA announcement include:
- The wastewater generated during and after operations at an ISR facility, as well as all evaporation pond sludges derived from such wastewaters, have been determined to be uranium byproduct material by the NRC, bringing them under the jurisdiction of UMTRCA.
- Groundwater protection standards include the 13 constituents on Table 1*. These analytes must not exceed the higher of the following values:
- (1) The background concentrations of groundwater constituents measured prior to the start of the ISR operational phase as determined by preoperational monitoring conducted under § 192.53(a); or
- (2) The most protective standards issued under the SDWA (40 CFR 141.61, 141.62, 141.66, 141.80 and 143.3), values from RCRA standards (40 CFR 264.94), and the maximum constituent concentrations found on Table 1 to subpart A of 40 CFR part 192. This includes the updated 2000 MCL standards for arsenic and uranium.
- Alternative Concentration Limits (ACL)**
- ACLs may be proposed by the licensee, and if approved, they must be established at concentration level that represents a cumulative excess lifetime risk to an average individual at no greater than 10-4. Multiple years of monitoring post-closure will need to be performed to show that no statistically significant trend in the species is evident. The use of non-parametric analysis to address non-detects may have significant value.
- Monitoring programs include a specification of frequency, duration, and proper placement of monitoring wells. These are critical for both pre- (baseline or background data collection) and post-operation (three-year and long-term stability). The proposed regulation identifies excursions, using the NRC definition with monitoring of indicator compounds against “upper control limit” levels.
- Default long-term, post-operation monitoring will be required for 30 years. The 30 year requirement appears to be based upon RCRA guidance. The proposed regulation indicates that this 30 year period may be shortened if after three years of stability monitoring the licensee demonstrates, through geochemical modeling (e.g., PHREEQC, and Geochemist’s Workbench) of the site, that the subsurface conditions within the production zone will remain stable into the future. The US EPA also cites RCRA guidance as an appropriate statistical analysis approach to established compliance.
- A corrective action program shall be established by the licensee and address a range of possible excursion and exceedance scenarios
Comments are due to the US EPA by April 27, 2015.
*Table 1 includes arsenic, barium, chromium, cadmium, lead, mercury, selenium, silver, nitrate (as N), molybdenum, Ra-226 and Ra-228 combined, uranium (U-234, U-235, U-238 combined), gross alpha (excluding radon and uranium).
** “We believe it only is appropriate to establish restoration goals based on a thorough characterization of the preoperational environment and not to approve ACLs unless it has proven impracticable to achieve or maintain the initial restoration goals or return to background conditions after restoration.” Source: US EPA.
West Virginia is in US EPA Region III – For Now
The state of West Virginia’s Senate Judiciary Committee is thinking about originating a resolution asking the federal government to switch the US EPA region under which West Virginia falls. Currently, West Virginia is in US EPA Region III based in Philadelphia, but some members of the State Senate believe the state and the coal industry may get more cooperation from the Atlanta-based US EPA Region IV. That is the reason for West Virginia SENATE CONCURRENT RESOLUTION NO. 38: Proposed Resolution, offered by Senators Snyder, Trump, Beach, Carmichael, Ferns, Gaunch, D. Hall, Karnes, Kirkendoll, Leonhardt, Maynard, Miller, Nohe, Palumbo, Romano, Williams and Woelfel.
In part, the resolution states:
Taking into consideration: (1) That the EPA presumably organizes its administration into regions such that, in administering the various federal laws under its purview, it can take into account, among other things, the similar demographic and economic characteristics of the states in each region when implementing regulatory and enforcement policies for each region; (2) that the demographic and economic characteristics of West Virginia, and particularly the southern coal producing regions of West Virginia, align much more with the demographic and economic characteristics of the states in EPA Region IV in contrast to the states in EPA Region III; (3) that Kentucky, the third largest coal-producing state in the United States, is in Region IV, while West Virginia, the second largest coal-producing state in the United States, is in Region III; and (4) that the primary industry that the EPA regulates in West Virginia is the coal industry, it would be appropriate that West Virginia be transferred from EPA Region III to EPA Region IV…
“We’re more in tune with people from Atlanta and that region on philosophical ideas and theories,” Sen. Art Kirkendoll (D-Logan) is reported to have said. “It can make a difference in what you get and do not get done.” The Atlanta region includes coal mining states Kentucky and Tennessee.
Kirkendoll said he believed such a request would get support from the coal industry. “Ask Alpha Natural Resources, Arch Coal, all of the permitting agencies that deal with [EPA] and find out if they don’t think they have a more rational reason to be in the Atlanta region rather than Philadelphia,” Kirkendoll said. Senate Judiciary Chairman Charles Trump (R-Morgan) said the proposal is worth a strong review. “[West Virginia’s] legislature has a voice – we may not have control – but we have a voice that should be heard in Washington,” Trump said.
Could such an action realistically occur? It is not likely. Manpower, budgeting, contracting, and federal procurement obligations would necessitate a regulatory process that would take considerable time, energy, and budget funding – none of which US EPA has at the Federal or regional levels. Yet for the people of West Virginia and the industries within it, there might be benefits and it is potentially worth contemplating.