Patriot Water Treatment LLC of Warren, OH, is back in business after the Ohio Environmental Review Appeals Commission (ERAC) on Tuesday ruled that the Ohio Environmental Protection Agency (OEPA) had overstepped its regulatory authority when it pulled the private operator’s permit to deliver natural gas drilling wastewater to the City of Warren for treatment.
Patriot was issued a permit by OEPA in 2010 to pretreat wastewater trucked into Warren from gas drilling sites to remove heavy metals, bromide and other contaminants. The brine water then was sent into Warren’s sewer to the city plant before being discharged into the Mahoning River. The permit allowed Patriot to accept and send to the plant up to 100,000 gallons/day of wastewater containing total dissolved solids levels of up to 50,000 parts per million (see Shale Daily, Dec. 8, 2010).
However, OEPA withdrew Patriot’s permit earlier this year and issued a revised permit, which still allowed Patriot to accept and pretreat brine, but after April 1 it was no longer able to send the treated brine to the Warren municipal treatment plant. OEPA’s actions idled the Patriot facility in April, which led to more than 20 people being fired (see Shale Daily, March 21).
“We are grateful that ERAC took the time to really evaluate all of the evidence and the applicable law,” said Patriot President Andrew Blocksom following the review board’s decision. “We have always known that we have the truth on our side and that eventually someone would take the time to hear us out.”
ERAC specifically determined that the OEPA had gone beyond its regulatory authority based on a policy change that occurred after a change in the agency’s administration and the appointment of Scott Nally as the new OEPA director. ERAC determined that the agency had no claim that Patriot’s or the City of Warren’s activities had caused any water quality concerns and that the policy decision was outside of the agency’s authority.
Last year Nally sent letters to Warren officials, as well as to officials in Steubenville and East Liverpool, OH, explaining that the Ohio Department of Natural Resources (ODNR) was the only agency authorized to issue brine disposal permits (see Shale Daily, May 20, 2011). The two other cities were at various stages of allowing their municipal wastewater treatment facilities to accept drilling brine.
“We had looked at Warren as a kind of a test case and we authorized a pretty limited amount,” OEPA spokesman Mike Settles told NGI’s Shale Daily earlier this year. “But after we did that, [Nally] came on board. We held discussions with the ODNR, and it was determined that we didn’t have the authority to [issue permits] to begin with.”
Warren Water Pollution Control Director Tom Angelo said city officials were glad the court had recognized that OEPA “had no claims of any water quality issues.”
April Bott of Bott Law Group LLC, who was legal counsel for Patriot and the city, said the decision concluded a “long and difficult process” for her clients. “My clients received all necessary permits and approvals in 2010. In my 15 years of practicing environmental law in Ohio, I have never seen a similar situation where the Ohio EPA issues a permit and changes policy post-issuance.”
There were 26 oil and gas drilling rigs active in Ohio at the end of June, according to Smith Bits data, including 13 horizontal drilling rigs. Only four of the rigs working in the state were drilling for natural gas — two of them in Noble County and one each in Knox and Stark counties.
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