**HOLLIDAY ENVIRONMENTAL SERVICES, INC.**

# ENVIRONMENTAL ENGINEERS & REGULATORY CONSULTANTS 

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BOX 2508 BELLAIRE, TEXAS 77402-2508 (713) 668-7640 FAX (713) 668-5184

E-MAIL ghh@houston.rr.com

11 April 2005

U. S. Environmental Protection Agency

EPA Docket Center

1301 Constitution Ave., N.W.

WPA West

Suite B-102

Washington, DC 20460

## RE: EPA DOCKET ID No. OW-2004-0032

Gentlemen:

These comments respond to the EPA request published on 2 September 2004
at 69 FR 53705 regarding "Notice of Availability of 2004 Effluent
Guidelines Program Plan."

## Recommendation

We believe 40 CFR §435.13 and 40 CFR §435.15 require immediate
clarification, because of EPA Region VI offshore NPDES permit
interpretation and new technical and statistical data (attached)
available regarding the inherent variability in the s**ediment toxicity
test** for synthetic base drilling fluid using *Leptocheirus.* This
clarification should be included in the EPA Effluent Guidelines Program
Plan for 2005, because the current regulatory interpretation, which is
based out-of-date technical information and enforcement understanding,
makes compliance with Region VI offshore NPDES permit (66 FR 65209)
beyond the technical capability of E&P offshore operators.

## Background

EPA proposed, on 3 February 1999 at 64 FR 5488-5554, the offshore
"Effluent Limitations Guidelines and New Source Performance Standards
for Synthetic-Based (sic) and Other Non-aqueous Drilling Fluids". The
proposal included a synthetic-base drilling fluid Sediment Toxicity
Test, which was unprecedented, having not been attempted for regulatory
discharge limit compliance by any control agency. EPA supported the
imposition of the Sediment Toxicity Test on the basis of the
"Development Document for Proposed Effluent Limitations Guidelines and
Standards for Synthetic-Based (sic) Drilling Fluids in the Oil and Gas
Extraction Point Source Category" (EPA 821-B-98-021). As discussed
later, the toxicity test results are more sensitive to small variations
in the test protocol and components than recognized by the Development
Document, EPA or E&P operators.

In May 1997, industry formed the "Synthetic-Based (sic) Mud Research
Group." The group recently released two research papers (Dorn, et al.
2005; Cano, et al. 2005). These papers demonstrate, respectively, the
Sediment Toxicity Test results are variable and ester containing
drilling fluids are not suitable when exposed to cement slurries or
downhole temperatures greater than 300º F. This means the technical
assumptions on which EPA relied Development Document, EPA-821-B-98-021
and Boormazian, and Smith, 2003) are suspect and probably invalid.

A method is available for immediately rectifying the problem.

### Problem

The sediment toxicity test sensitivity to small changes in test
components and test protocol is manifest. Dorn, et al. (2005) show
statistically the inherent variation in pass/fail status of the sediment
toxicity test (STT) has improved with time, but still is not a
regulatory tool.

The most recent inter-laboratory study (Dorn, et al., 2005) showed all
STT samples passed the sediment toxicity ratio (STR), but the
coefficient of variability (CV) ranged from 10 to 70 percent for the
reference drilling fluid and 15 to 61 percent for field drilling fluids.
This is an improvement from the first round robin, but only four of the
seven laboratories conducting the test demonstrated a CV of \<30
percent. This suggests the test protocol components exert a strong
influence on the test pass/fail probability. These components include
mixing time, mixing shear, base olefin manufacturing and test animal
weight, among many other variables.

This inherent variation in the test protocol results in initial sample
STR failure, e.g., first sample tested. A large laboratory consistently
conducting the sediment toxicity test recently reported 12 initial
sample failures of which eight passed upon testing the sample split. Not
only did the second (split) sample pass, but averaging the second sample
(a split of the first sample) results with the first sample results also
passed. This means the same sample, tested by the sample protocol
produced opposite results. In the intervening days between sampling and
the final results of the second test, the operators have to retain the
drilling wastes on the platforms or a boats/barges. **In my opinion,
under the above scenario, discharging the drilling wastes would subject
the operators to criminal sanctions, since the operators would have
knowingly and willingly contravened the permit conditions**. **The
operators are subjected to the threat of regulatory sanctions as the
result of inherent test variability known by EPA to exist in the test
protocol.**

### Inherent Variability of the Test

Industry investigators established variation of the sediment toxicity
test result from reference base olefin deterioration by oxygen
contamination (personal communication with John Candler, MI-Swaco),
branching of the olefins during manufacturing (personal communication
with Dr. Manny Cano, Shell Chemical) and different personnel perform the
test (personal communication with Dr. Phillip Dorn, Shell Global
Solutions). The first variable is controllable by nitrogen blanketing of
the base fluid container. The second variable cannot be controlled,
because each olefin manufacturing process produces slightly different
olefin molecules during each batch. The third variable is very difficult
to control, since more than one laboratory performs the tests and the
EPA test protocol is not specific enough to eliminate personnel
variations while performing the test.

### Olefin Contamination. John Chandler, MI-Swaco, reports Chevron provided a drum of C~16~ C~18~ internal olefin reference fluid. The drum contents were not nitrogen blanketed. The resulting base fluid showed a marked change in toxicity characteristics in the base fluid from the initial sampling to the bottom of the drum sample. The change with time in base fluid affects the sediment toxicity test results.

### Olefin Branching. Dr. Manny Cano, Shell Chemical, reports C~16~ C~18~ olefins batches are not the same, because branching of the olefin molecule during manufacturing. Branching means the olefin molecule is formed with a methyl or other radical attached to the olefin carbon chain in the manufacturing process. Thus, each, batch of olefin is different resulting in different characteristics. This means reference fluids compounds using Chevron C~16~ C~18~ internal olefin can and most likely are different from the next batch of reference fluids made by Chevron using the same process. Also, the reference olefin made by Chevron inherent differs from the olefin made by BP.

### Mixing Shear, and Different Laboratory Technicians. John Chandler, MI-Swaco, reports the type, speed and mixing time affects the repeatability of test results. The test protocol is silent regarding mixing procedure except to require through mixing of the sample with a high shear mixer. Mr. Chandler, also, reports good test results (97 percent pass) when using only one technician to perform the test. This provides consistence of test procedure including mixing time, speed and type of mixing equipment. Most operators rely on commercial laboratories where one of several technicians conducts the test. The use of different techicians causes variation in the results.

### Animal Size. Dorn et al. (2005) reports animal size is an observed cause for sediment toxicity test variability. John Candler, MI-Swaco, reports sieving the animals using 1000-710 mesh screen and 1000-840 mesh screen and performing the test protocol on each group of animals produces differing test results for the same fluids. Further, John Candler reports sieving the animal using 1000-710 mesh sieve, dividing the animal into two groups, immediately performing the test using one group and retaining the second group in a "feed lot", re-sieving the animals and performing the sediment toxicity test on the "fatter, older" animals produces differing results. The pass/fail probability is affected by the random selection of the animals of the same size.

There are numerous uncontrollable variables, which can affect the
outcome of the test. A false positive error can occur even though
drilling fluid is safe to discharge (Dorn, et al., 2005). The major
problem with the false positive error results in holding the drilling
waste onsite while the sample split is tested. This results in a minimum
of 8 days holding the cuttings on the platform or boat/barge.

### Possible Solution

One solution to the variability problem is temporarily provide tolerance
in determining STT pass/fail results until industry can develop the
sediment toxicity into a practical test. EPA recognized the sediment
toxicity test gives inherently variable results when Region VI included,
a "variability factor" (K-factor) in the permit calculation of STR
(Boormazian, and Smith, 2003, Attachment to Memorandum). The
"variability factor" was withdrawn in the final Gulf Coast Offshore
NPDES permit (69 FR 39478) as the result of a memorandum (Boormazian and
Smith, 2003), EPA to Region VI, which states

> "*\[u\]nfortunately, there is a common misunderstanding among some
> industry stakeholders about the application of the technology-based
> sediment toxicity and biodegradation limitations and standards.
> Industry stakeholders incorrectly assume ··these sediment toxicity and
> biodegradation limitations and standards (e.g. 40 CFR 435.13,
> Footnotes 6,7&8) call for statistical comparisons rather than the
> technology-based limitations and standards for sediment toxicity.
> Biodegradation calls for deterministic comparisons with an absolute
> upper limit. There is no room in NPDES permits for modifying the
> calculation method (e.g., use of a "K-factor") for the sediment
> toxicity and biodegradation limitations and standards"*.

Apparently, the above misconception existed within EPA also, since
Region VI issued a Final NPDES General Permit at
<http://www.epa.gov/Arkansas/6en/w/offshore/permitfeb162002.pdf>
containing the following statement regarding a variability factor:

> The industry has requested an additional delay in the compliance
> requirements for the 4-day and 10-day sediment toxicity limits until
> February 1, 2003 (approximately one year after the expected effective
> date of the permit). *However, after further discussions and adoption
> of a variability factor for the 10-day test it has been determined
> that the additional extension is only needed for the 4-day sediment
> toxicity limit.* There are several complicating factors that will
> initially make compliance with the limit more difficult than with the
> stock base fluid sediment toxicity limit. Since the 4-day sediment
> toxicity test is used to measure toxicity of discharged drilling
> fluids, not just stock base fluids, components and additives to the
> drilling fluids will initially make compliance with the limits more
> difficult. The four day test has been shown to have more inherent
> variability than the ten day test. Also, demand on laboratories
> conducting the four day test will be much greater than for the ten day
> test; thus, there is more of a need to build laboratory capacity and
> develop an adequate supply of organisms. The administrative compliance
> order will therefore require operators to comply with the 4-day
> sediment toxicity limit by February 1, 2003.

Also, Booznazian and Smith (2003) state

> On December 18, 2001 (66 FR 65209) EPA finalized the modification to
> the EPA Region 6 Oil and Gas Extraction NPDES General Permit for
> Western Gulf of Mexico (GMG290000). As shown in Equations 3 though 5,
> the revised permit used this concept of a "Kfactor" to modify the
> effluent guidelines sediment toxicity and biodegradation limitations
> and standards. \[Equations not reproduced\]

Another issue of concern in the Boormazian and Smith (2003) is the
discussion regarding *"best available technology and best available
demonstrated technology" (attachment page 1 ¶2). Promulgating a
"···technology wherein only those synthetic materials or other base
fluids which minimize potential loadings and toxicity may be
discharged."* In my opinion, EPA saying the test is "demonstrated" does
not make the technology "demonstrated". **Had the technology been
"demonstrated" EPA Region VI would not have felt comfortable in
including a "variability factor" in the 2003 re-issued Offshore NPDES
Permit cited above.**

Similarly, Boormazian & Smith (2003) at page 2 ¶3 make a point of saying
EPA encourages use of "esters and internal olefin/ester blends." Cano,
et al. (2005) demonstrates the use of esters or ester blends in contact
with cement slurries results in thickening the drilling fluids beyond
useable bounds. In addition, Cano, et al. (2005) show internal
olefin/ester blends operating at or above 300º F demonstrate
unsatisfactory characteristics as drilling fluids.

The immediate problem involves the sediment toxicity test ratio failure
of the first sample (initial failure). A straightforward means of
alleviating this problem is to temporarily reapply the "EPA variable
factor" to the first sample tested. This is a viable procedure, since
most "initial failure" samples calculated without applying the
"variability factor" pass the second test, when averaged with the first
test result. Samples, which fail the sediment toxicity test when the
variability factor is applied, also, fail subsequent tests.

If the drilling fluid passes the sediment toxicity test, wherein the
"variability factor" is applied, the drilling waste could be discharged.
The second (split) sample would be tested, but calculated without the
variability factor. The average of these two STRs must be \<1 for the
discharge to continue. However, if the operator desires to retain the
drilling waste on the platform or boat/barge, while the second sample
(third test) is tested for sediment toxicity, a pass or fail criteria
would be established by averaging the three test results.

**Rationale:** The above approach is rational because:

> 1\. the inherent variability of the test demonstrates the test does
> not represent Best Professional Judgment, Best Available Technology,
> Best Available Demonstrated Technology, nor Best Practicability
> Technology. EPA Region VI recognized and memorialized the inherent
> problem with the test when Region VI issued NPDES Offshore Permit GMG
> 290000 incorporating the variability factor in 2003.
> http://www.epa.gov/Arkansas/6en/w/offshore/permitfeb162002.pdf

2.  further, readopting the EPA variability factor will not represent
    "backsliding", since the test was in jeopardy when initially
    promulgated.

3.  the application of the "EPA variability factor" would be temporary
    until industry can study the test further to eliminate the
    variability inherent in a test using animals. The Agency could
    require a semi-annual report on the progress made in reducing the
    variability inherent in the sediment toxicity test.

### Sources of error in the Calculation. 

### The EPA procedure for determining pass/fail depends on calculating a ratio (STR) of the sediment toxicity of the field drilling fluid and a reference fluid. Each test result included in the calculation of the ratio contains uncertainties, e.g. instrumentation, natural variability of the animals, natural variability of the reference and field base fluids, etc. Ratios based on conventional arithmetic calculations using numbers having normal distributions, are valid. However, if the ratios are calculated on the basis of non-normally distributed arrays, errors are introduced. The closer the denominator and numerator are each other, the more the error can be. Cano and Louallen (2004) propose the use of "interval arithmetic" will reduce the inherent error associated with the ratio calculation. Cano and Louallen (2004) show calculating the ratio for field drilling fluids using "interval arithmetic" eliminates the variability introduced by using conventional calculation techniques with non-normally distributed arrays.

The adoption of the variability factor on a temporary basis would
provide an opportunity to compare 'variability factor' results with
"interval mathematic" results. Perhaps this simple change will remove
the significant errors in the EPA protocol.

### Discussion

Unknown mathematical and natural variability inherent in the EPA
Discharge Limitation Guidelines (40 CFR §§ 435.13 and 15) results in
initial test failures, which generally are nullified by a duplicate test
on the split sample. Sixty-seven percent of the time, the duplicate
sediment toxicity test of the split sample results in the drilling waste
passing the EPA criteria for discharge. The initial sample test failure
requires holding the drilling waste on the platform or boat/barge until
a second (split) sample is tested. This delay is expensive and
dangerous. The loading of cuttings boxes onto a boat/barge in the open
sea easily can result in injury to the boat or barge personnel. This
exposure is unnecessary, since the waste is likely to pass on the second
test even when averaged with the first test.

The test as promulgated by EPA represents the cutting edge of science.
EPA has not imposed this type of test on any other industry or
municipality. The sediment toxicity test is not Best Practicable
Technology because it has **not** been shown to present consistent and
repeatable results. The petroleum industry has spent over \$2 million
trying to make the EPA experimental test criteria work. Much progress
has been made, but EPA Region VI recognized the inherent problems with
the test. **Accordingly, they incorporated a "variability factor" in the
2003 NPDES Offshore Permit for the Western Gulf of Mexico**. EPA
headquarters, without recognition of the inherent variability in the
test protocol, recommended the "variability factor" be removed. The
public record does not support the arguments asserted by headquarters.
In fact, the Technology-Based Effluent Limits -- Chapter 5 (EPA NPDES
Permit Writers Manual, 1996) is silent on the issue of "deterministic
comparisons." The manual at §5.1.3 allows "\[d\]eviation of effluent
limits based on ELG \[Effluent Limit Guidelines\]. **Therefore, the
assertion by Boornazian and Smith (2003) that technology based limits
are "deterministic" appears to contradict the official Permit Writers'
Manual.**

Reasonable relief is possible. EPA established, in the NPDES Permit
Writers' Manual (1996) the concept of "deviation" (§5.1.3) from the
Effluent Limitation Guidelines. Region VI established and justified the
deviation (variability factor) in the 2003 NPDES Offshore Permit for the
Gulf of Mexico (GMG 290000). The permit Writers' Manual has not been
changed; therefore EPA sanctions deviation. There is no "back sliding"
involved in the revising the permit, because the test method does not
represent BPT. Therefore, providing a temporary return to "variability
factor" represent a reasonable solution until industry makes the test
"capable of real use" by additional and much needed research.

Respectfully submitted,

[s/ G. H. Holliday]{.underline}

G.H. Holliday, Ph.D., P.E., DEE

### 

### References

Boornazian, Linda and Mary Smith, 2003. "To: Miguel Flores Region VI
Memorandum "Clarification of Technology-based Sediment Toxicity and
Biedegradation Limitations and standards for Controlling Synthetic-based
(sic) Drilling Fluid Discharges" 10 October

Cano, M.L. and J.T. Louallen, 2004; "Proposal for Analysis of Base
10-Day and Field Drilling Mud 4-day Leptocheirus plumulosus Sediment
Toxicity Testing Results -- A New Interval Arithmetic Approach to
Demonstrate Compliance, unpublished July 28.

Cano, M.L, S. Rabke, J.Candler, P.B. Dorn, J.T. Louallen and P. Scott,
2005. "Impact of Heat Ageing on Sediment Toxicity of Ester/Olefin Based
Drilling Muds to Leptocheirus plumulosus" SPE/EPA/DOE Exploration and
Production Environmental Conference, Galveston, TX 7-9 March.

Dorn, P.B.., S. Rabke, A. Glickman, J. Louallen, K. Nguyen, R. Mac
Gregor, J. Candler, D.C. L Wonge, C., Hood, J. Hall and T. Purcell,
2005. "Development, Verification and Improvement of a Sediment Toxicity
Test for Regulatory Compliance" SPE 94269, SPE/EPA/DOE Exploration and
Production Environmental Conference, Galveston, TX 7-9 March.

EPA, 1996. NPDES Permit Writer's Manual, EPA-833-B-96-003, December.