BEFORE THE ENVIRONMENTAL REVIEW APPEALS COMMISSION 

STATE OF OHIO 

PATRIOT WATER TREATMENT, LLC ERAC No. 156477 

ERAC No. 156588 

and 

CITY OF WARREN ERAC No. 786501 

ERAC No. 786589 

Appellants, 

V. 

CHRIS KORLESKI, DIRECTOR OF 

ENVIRONMENTAL PROTECTION 

and 

SCOTT NALLY, DIRECTOR OF 

ENVIRONMENTAL PROTECTION 

Appellees. 

DECISION 

Rendered on July 3, 2012 

April R. Batt, Sarah L. Herbert, and MacDonald W. Taylor 

for Appellants Patriot Water Treatment, LLC and City of 

Warren 

Summer J. Koladin Plantz, Janean R. Weber, and Christine 

L. Rideout for Appellees Chris Korleski, Director of 

Environmental Protection and Scott Nally, Director of 

Environmental Protection 

{~1} This matter comes before the Environmental Review Appeals 

Commission ("Commission," "ERAC") on notices of appeal and objections filed by 

Patriot Water Treatment, LLC ("Patriot") and the City of Warren ("Warren") 

(collectively "Appellants") opposing final actions by Appellees Chris Korleski, Director of 
Nos. 156477, 786501, 156588, & 786589 2 

the Ohio Environmental Protection Agency from 2007 through 2010, and Scott Nally, 

Director of the Ohio Environmental Protection Agency since 2011 ("Director" or "Ohio 

EPA"). Appellants challenge the Director's August 10, 2010 issuance of Patriot's permit 

to install ("PTI") 748163 ("2010 PTI"), the Director's December 1, 2010 modification of 

Warren's National Pollutant Discharge Elimination System ("NPDES") 3PEoooo8*MD 

("2010 NPDES Modification"), and the Director's March 19, 2012 issuance of Warren's 

NPDES 3PEoooo8*ND ("2012 NPDES Permit"). 

{~2} Following issuance of the 2012 NPDES Permit, the Director filed a 

Motion to Dismiss the appeals of the 2010 PTI and the 2010 NPDES Modification. The 

Director argued that the 2012 NPDES Permit rendered both the 2010 PTI and the 2010 

NPDES Modification moot. On April 12, 2012, the Commission granted the Director's 

Motion with respect to the 2010 NPDES Modification.' The Commission denied the 

Director's Motion in all other respects? 

n3} The Ohio Department of Natural Resources ("ONDR") filed an amicus 

brief on April 19, 2012. At the hearing, Appellants orally moved to strike the ODNR's 

amicus brief. After arguments of counsel, the Commission denied Appellants' Motion to 

Strike. ERAC Nos. 156477 & 786501, Case File Items QQQQQQ and Tl I I I 1'. 

Pursuant to Revised Code ("R.C.") 3745.04(B), Patriot and Warren filed Objections to the 2012 

NPDES Permit, which the Commission construed as both objections and new notices of appeal. The 

objections effectively amended Warren's original notice of appeal to include assignments of error related 

to tbe 2012 NPDES Permit. Nonetheless, issuance ofthe 2012 NPDES Permit rendered the 2010 NPDES 

Modification moot. Therefore, the Commission dismissed tbose assignments of error that challenged the 

2010 NPDES Modification, but preserved the appeal regarding the objections that challenged tbe 2012 

NPDES Permit. ERAC Nos. 156477 & 786501, Case File Item EEEEEE; ERAC Nos. 156588 & 786589, 

Case File Items B and C. 

' The Commission denied the Director's Motion to Dismiss regarding the 2010 PTI appeal. The 

Commission found that the 2010 PTI appeal was not moot because meaningful relief could be granted if 

the Commission ultimately concluded that Section BB of Warren's 2012 NPDES Permit was unlawful or 

unreasonable. ERAC Nos. 156477 & 786501, Case File Item EEEEEE. 
Nos. 156477, 786501, 156588, & 786589 3 

{'114} The Commission held a four-day de novo hearing on the remaining issues 

relating to Patriot's 2010 PTI and Warren's 2012 NPDES Permit from April 24 to April 

26, 2012, and concluded on May 1, 2012. 

{'115} Based on the evidence adduced at the hearing3 and relevant statutes, 

regulations, and case law, the Commission issues the following Findings of Fact, 

Conclusions of Law, and Final Order AFFIRMING Patriot's 2010 PTI and MODIFYING 

Warren's 2012 NPDES Permit by striking Part II, Section BB therefrom. 

FINDINGS OF FACf 

I. Introduction 

{'116} Hydraulic fracturing, commonly known as "{racking," refers to the 

extraction of natural gas from tight shale formations through either the creation of 

artificial fractures or the expansion of existing ones. First, a well is drilled vertically 

from the Earth's surface down to a shale formation, then horizontally along the length of 

the shale formation. Liquid, called "drilling liquid" or "drilling mud," is commonly used 

to assist in this drilling process. OHIO ENVIRONMENTAL PROTECTION AGENCY, Drilling for 

Natural Gas in the Marcellus & Utica Shales: Environmental Regulatory Basics, 

http:/ jwww.epa.ohio.govjshale.aspx (last visited May 4, 2012). 

{'117} After drilling the well, the driller creates perforations along the horizontal 

portion of the well, and then pumps high pressure "fracturing fluid" containing sand and 

other chemicals into the well, opening small cracks in the shale formation. I d. 

None of the parties moved the Certified Records into evidence. 
Nos. 156477, 786501, 156588, & 786589 4 

{'118} After the fracturing process, the natural pressure of the shale formation 

forces some of the fracturing liquid back to the surface. Once it returns to the surface, 

this liquid is known as "flowback water." I d. 

{'119} Flowback water can vary greatly in composition. Specifically, testimony 

established that initial flow back water is generally "low-salinity" wastewater, which the 

oil and gas industry defines as containing less than so,ooo mg/1 of total dissolved 

solids ("TDS"). Comparatively, fracturing liquid remaining in the ground continues to 

pick up salts, heavy metals, and other contaminants over time. Thus, flowback water 

that has been in the ground for longer periods of time is generally "high-salinity" 

wastewater, which the oil and gas industry defines as containing more than so,ooo mg 

TDS/1. See id.; Testimony Blocksom. 

{'1\10} Patriot operates a "brine wastewater treatment system"4 located at 2840 

Sferra Avenue NW, Warren, Ohio, Trumbull County. Patriot accepts "low-salinity" brine 

wastewater from shale gas extraction activities. It treats the wastewater to remove heavy 

metals and other constituents before the treated wastewater is sent to Warren's 

wastewater treatment plant ("WWTP"). The treated wastewater is ultimately discharged 

into the Mahoning River. 

{'lin} Because Patriot sends wastewater to Warren's WWTP, Patriot is subject 

to certain pretreatment standards and permitting requirements as outlined in Ohio 

Administrative Code ("Ohio Adm.Code") Chapter 3745-3 and Ohio Adm.Code Chapter 

• In its January 11, 2010 PTI application, Patriot refers to its facility as a "brine wastewater 

treatment system." Accordingly, the Commission refers to discharges from Patriot as "brine wastewater" 

throughout this opinion. The Commission, however, makes no determination as to whether the liquid 

treated by Patriot constitutes "brine" within the meaning of R.C. 1509.22. As discussed below, the 

Commission does not express any opinion as to the applicability of R.C. 1509.22 to Patriot's and/or 

Warren's activities. See Appellants Ex. 24. 
Nos. 156477, 786501, 156588, & 786589 5 

3745-42. Wastewater treatment plants are designed to treat residential rather than 

industrial sewage, and accordingly, some industrial sewage must be "pretreated" before 

entering the WWTP. Industrial users, such as Patriot, are therefore required to obtain 

PTis, as well as comply with federal, state, and local pretreatment standards. Testimony 

Kniss. 

{~12} Patriot appealed its 2010 PTI on September 10, 2010. During the 

pendency of Patriot's appeal of the 2010 PTI, the Director issued a second PTI to Patriot 

on March 19, 2012, for the "removal and replacement of six frac tanks with two holding 

tanks." Patriot has not appealed the 2012 PTI. ERAC No. 156477, Case File Item A; 

Testimony Blocksom. 

{~13} Warren operates a WWTP located at 2323 Main Avenue SW, Warren, 

Ohio 44481, Trumbull County. Because Warren's WWTP discharges to the Mahoning 

River, it is subject to Ohio's NPDES permitting requirements as outlined in Ohio 

Adm.Code Chapter 3745-33. Additionally, because industrial users discharge 

wastewater to Warren's WWTP, Warren administers an Ohio EPA-approved publicly 

owned treatment works ("POTW") pretreatment program pursuant to Ohio Adm.Code 

Chapter 3745-3.s Publicly owned treatment works pretreatment programs are created to 

ensure that local POTWs maintain adequate control over discharges of industrial 

wastewater entering their WWTPs. This serves. to protect the WWTP and ensure that 

industrial discharges do not cause degradation of water quality downstream of the 

WWTP. Testimony Kniss. 

s At hearing, Ms. Kniss explained that a WWfP is one component of a POTW. POTWs also consist 

of pump stations and other components. Testimony Kniss. 
Nos. 156477, 786501, 156588, & 786589 6 

{'1114} To accommodate discharges from Patriot, Warren applied for and 

obtained an NPDES Modification in 2010 expressly allowing for acceptance of 

"wastewater generated during oil and gas well drilling". ERAC No. 786501, Case File 

Item A. 

{'IllS} Warren appealed its 2010 NPDES Modification on December 29, 2010. 

During the pendency of Warren's appeal of the 2010 NPDES Modification, the Director 

issued the 2012 NPDES Permit. Part II, Section BB ("Section BB") of Warren's 2012 

NPDES Permit expressly prohibited Warren from accepting "brine wastewater from oil 

or gas drilling, exploration, or production * * * unless and until it is approved by the 

Chief of the Division of Oil and Gas Resources Management" and "until after an NPDES 

Permit Modification authorizing acceptance of the material is approved." On March 22, 

2012, both Patriot and Warren filed objections to the 2012 NPDES Permit. ERAC. Nos. 

156588 & 786589, Case File Item A. 

II. 2010 PTI and NPDES Issuances 

{'1116} Patriot and Warren first approached Ohio EPA to inquire about the 

possibility of discharging brine wastewater through Warren's WWTP in early 2009. By 

April 2009, Ohio EPA had begun to informally investigate the interaction between the 

statutes that govern its NPDES permit program and Revised Code ("R.C. ") Chapter 

1509, which is administered by ODNR and not Ohio EPA. Specifically, as a part of her 

initial review of Patriot's PTI application, Donna Kniss, Environmental Specialist 2 with 

Ohio EPA's Division of Surface Water Management ("DSWM"), reviewed the following 

provision contained in RC. 1509.22(C)(1): 
Nos. 156477,786501, 156588, & 786589 

Brine from any well * * * shall be disposed of only by injection into an 

underground formation * * *; by surface application * * *; in association 

with a method of enhanced recovery * * *; or by other methods approved 

by the chief for testing or implementing a new technology or method of 

disposal. * * * 

7 

{1117} Ms. Kniss and others at Ohio EPA evaluated whether R.C. 1509.22 

conflicted with activities Patriot proposed in its PTI application. An April 27, 2009 email 

from Ms. Kniss summarized Ohio EPA's evaluation of R.C. 1509.22. The email states in 

pertinent part as follows: 

The Ohio EPA Division of Surface Water has contacted the Ohio 

Department of Natural Resources to ensure that Ohio EPA actions comply 

with the requirements of ORC 1509.22 regarding the disposal of this 

wastewater. If [Patriot/Warren's treatment process] does not comply with 

ORC 1509.22(C), then Ohio EPA will not authorize the installation of these 

wastewater treatment units. 

Appellants Ex. so. 

{1118} Shortly thereafter, however, ODNR came to a decision regarding the 

interaction between the NPDES permit program and R.C. 1509.22(C). An April29, 2009 

email from Brian Hall, of Ohio EPA, to Rich Blasick, also of Ohio EPA, summarized 

Ohio EPA's discussions with ODNR, stating in pertinent part: 

Scott [Kell, of ODNR] clearly stated that taking brine to POTW /CWT is 

clearly under Ohio EPA jurisdiction and it would leave it up to [Ohio EPA] 

to determine if a treatment system could meet WQS. * * * 

ERAC Nos. 156477 & 786501, Case File Item XXX. 

{1119} Similarly, an email sent on July 21, 2009 from Scott Kell, of ODNR, to 

John Husted, also of ODNR, stated in pertinent part as follows: 

[Patriot's] proposal would be permitted and regulated by OEPA. We 

[ODNR] would not have approval, inspection, or enforcement authority. 

Appellants Ex. 52. 
Nos. 156477, 786501, 156588, & 786589 8 

{~20} In addition to the legal questions regarding the applicability of R.C. 

1509.22 to Patriot and Warren's brine wastewater treatment activities, Ohio EPA also 

conducted an evaluation of the potential impact of Patriot's discharge on water quality. 

Following Patriot's submission of its PTI application, Ohio EPA requested that Patriot 

and Warren provide more information and data regarding the disposal of brine 

wastewater through a WWTP. In response, Appellants proposed to conduct a pilot study 

to collect data and resolve issues related to the water quality concerns Ohio EPA raised. 

Appellants Ex. 6, 7, and 8; Testimony Blocksom. 

{~21} Subsequently, as Ohio EPA considered the pilot study proposal, 

Appellants voluntarily hired EnviroScience to conduct whole effluent toxicity ("WET") 

testing to determine the toxicity of the brine wastewater Patriot proposed to accept and 

treat. Tom Angelo, Director of the Warren WWTP, explained that the purpose of the 

WET test was to determine the point at which brine wastewater would begin to cause 

the death of certain indicator species6-in other words, to determine "how much brine 

water could actually come through the plant before an oops would happen." Testimony 

Angelo. 

{~22} The EnviroScience WET test, conducted in September 2009, involved 

laboratory toxicity testing to determine median lethal concentrations ("LCso")7 and 

absolute lethal concentrations ("LC10o")B of brine wastewater with respect to water 

6 Indicator species are chosen as representatives of the biological community to be protected. See 

Testimony Kniss. 

7 LCso refers to the concentration required to kill half of the tested population. 

s LC10o refers to the concentration required to kill all of the tested population. 
Nos. 156477,786501, 156588, & 786589 9 

fleas and fathead minnows. The test used effluent from Warren's WWTP to create 

various dilutions of brine wastewater. Director Ex. G; Testimony Kniss, Angelo. 

{~23} Based on observed mortality data at these varying concentrations, 

EnviroScience concluded that the LC50 and LC100 values for water fleas were 8.3% and 

25%, respectively. EnviroScience also concluded that the LC50 and LC100 values for 

fathead minnows were 13.7% and 25%, respectively. Director Ex. G. 

{~24} Using the 8.3% dilution corresponding to the LC50 value for water fleas 

as the maximum acceptable concentration of brine, EnviroScience concluded that 

Patriot could safely discharge 664,000 gallons per day ("gpd") of brine wastewater 

through Warren's WWTP,9 Warren submitted the WET test results to Ohio EPA on 

November 17, 2009. Director Ex. G; Testimony Angelo, Kniss. 

{~25} In response, Ohio EPA advised Warren that the WET test was insufficient 

because it failed to adequately characterize the "brine" utilized to prepare the various 

dilutions. In particular, on December 16, 2009, Ms. Kniss advised Warren that 

concentrations of TDS and other pollutants can vary greatly from one brine to another 

in the oil and gas industry, and therefore, Ohio EPA required data to ensure that the test 

sample brine was representative of the brine wastewater that Patriot would actually be 

treating. In addition, Ms. Kniss stated that WET testing must include both acute and 

chronic toxicity data. 10 Because the EnviroScience WET test did not adequately 

• Neither party introduced testimony or evidence indicating why the LC50 value for water fleas 

would or would not be the maximum acceptable concentration in Warren's WWTP effluent. Further, 

neither party introduced testimony or evidence indicating how EnviroScience calculated that a 664,000 

gpd discharge would result in an 8.3% dilution. See Director Ex. G. 

w Acute toxicity refers to immediate adverse effects resulting from short-term exposure to a 

substance, often at comparatively high levels. Conversely, chronic toxicity refers to adverse effects 

resulting from long-term exposure to a substance, often at comparatively low levels. Testimony Kniss. 
Nos. 156477, 786501, 156588, & 786589 10 

characterize the brine wastewater used in the WET test and did not include chronic 

toxicity data, Ms. Kniss stated that Ohio EPA could not approve Warren's proposal to 

begin accepting brine wastewater from Patriot. Director Ex. H; Testimony Kniss. 

{~26} On February 15, 2010, Ohio EPA authorized the 8-week pilot study 

Appellants had proposed. The pilot study consisted of a series of increasing brine 

discharges through Warren's WWTP. For the first week, 20,000 gallons of brine (at 

50,000 mg TDS/L) would be discharged through Warren's WWTP during an 8-hour 

period. The following week, 40,000 gallons would be discharged during an 8-hour 

period. During the third week, 6o,ooo gallons of brine would be discharged during an 8-

hour period. During the fourth week, 8o,ooo gallons of brine would be discharged 

during an 8-hour period. And finally, from the fifth week through the conclusion of the 

study, 100,000 gallons of brine would be discharged during an 8-hour period. At no 

time did brine discharges exceed 100,000 gallons per 8-hour period during the pilot 

study. Appellants Ex. 15, 19. 

{~27} Throughout the pilot study, Warren collected daily samples from its 

WWTP's influent and effluent streams, as well as from the Mahoning River upstream 

and downstream of Warren's WWTP. Warren measured conductivity, TDS, and chloride 

levels from each sample taken. In addition, Warren conducted further toxicity testing on 

water fleas and fathead minnows. Appellants Ex. 19. 

{~28} Warren's summary of the pilot study concluded the following: 

The 8 week Pilot Study demonstrated that a controlled discharge of brine 

water into Warren's WWTP did not have adverse water quality impacts to 

the treatment facility or receiving stream. The Study supports the initial 

toxicology test that indicated that Warren would be able to accept up to 

664,000 gallons per day of brine water at a maximum limit of 50,000 

mg/1 TDS at 8 MGD daily plant flows. The 8 MGD is set as the low flow 

limit that can occur in mid-summer at 3:0oam. 
Nos. 156477, 786501, 156588, & 786589 

Warren should be able to begin accepting brine water at the initial rate of 

100,000 gallons per day and increase amounts at a controlled rate, while 

sampling, to determine final ceiling concentration. 

Appellants Ex. 19. 

11 

{~29} Following the pilot study, Warren submitted an NPDES modification 

application to Ohio EPA on June 9, 2010. Director Ex. D. 

{~30} Ohio EPA conducted an internal review of both Patriot's PTI application" 

and Warren's NPDES modification application. After the Director issued the 2010 PTI 

in August 2010, Patriot timely appealed to this Commission, raising the following two 

assignments of error: 

A. PTI 748163 limits the amount of discharge to no more than 100,000 

gallons per day ("gpd") despite the fact that technical data supporting 

the PTI demonstrates discharges significantly higher than 100,000 gpd 

have no adverse impacts on the City of Warren sewer system. The 

Director has no reasonable technical basis nor lawful justification to 

merit setting a restrictive limit of 100,000 gpd. As such, the Director's 

action is both unreasonable and unlawful. 

B. PTI 748163 requires Patriot to comply with U.S. EPA categorical 

pretreatment standards and local pretreatment regulations "as they are 

adopted from time to time." Such a requirement does not provide 

regulatory certainty for Patriot and requires Patriot to potentially 

changes [sic] applicable requirements during the pendency of the 

already issued PTI. As such, the Director's action is both unreasonable 

and unlawful. 

ERAC No. 156477, Case File Item A. 

{~31} Patriot's two assignments of error relate to the following terms contained 

in its 2010 PTI: 

No more than 100,000 gallons per day (gpd) may be discharged into the 

City of Warren sewer system unless prior approval is obtained from the 

Ohio Environmental Protection Agency and the City of Warren. 

" Patriot submitted a modified PTI application on January n, 2010. Appellants Ex. 24. 
Nos. 156477, 786501, 156588, & 786589 

*** 

Patriot Water Treatment LLC shall comply with all applicable U.S. EPA 

categorical pretreatment standards and local pretreatment regulations as 

they are adopted from time to time. 

ERAC No. 156477, Case File Item A. 

12 

{~32} After the Director's issuance of Warren's 2010 NPDES Modification in 

December 2010, Warren timely appealed to this Commission setting forth the following 

three assignments of error: 

A. The NPDES Modification, Part I, C.3. limits the amount of wastewater 

generated during oil and gas well drilling to a discharge maximum of 

no more than 100,000 gallons per day ("gpd") despite the fact that 

technical data demonstrates discharges significantly higher than 

100,000 gpd have no adverse impacts on either the Warren sewer 

system or the receiving water bodies. The Director has no reasonable 

technical basis nor lawful justification to merit setting a restrictive 

limit of 10o,ooo gpd. As such, the Director's Action is both 

unreasonable and unlawful. 

B. The NPDES Modification, Part I, C.3 unreasonably and unlawfully sets 

a wastewater discharge limit based on gpd of flow in addition to 

concentration of the pollutant of concern. The Director has no 

reasonable technical basis nor lawful justification to add an additional 

restriction in Warren that does not appear in law or in permits for 

other municipal dischargers. As such, the Director's action is both 

unreasonable and unlawful. 

C. As justification for setting the unreasonably restrictive discharge limit 

described in [Assignment of Error A] above, the Director used 

inaccurate, outdated, and inappropriate data. Additionally, the 

Director set the limit based on hypothetical, future, speculative 

scenarios, including possible "future load increases" and "future 

changes to Ohio water quality standards." Establishing overly 

restrictive limits based on potential, future possibilities is both 

unreasonable and unlawful. 

ERAC No. 786501, Case File Item A. 

{~33} Warren's assignments of error relate to the following term in its 2010 

NPDES Modification: 
Nos. 156477, 786501, 156588, & 786589 

The permittee may elect to accept wastewater generated during oil and gas 

well drilling, development, and production in accordance with its 

approved Pretreatment Program. The pretreated wastewater must 

originate from regulated Centralized Waste Treatment (CWT) facilities 

which are tributary to the permittee's collection system. A maximum 

volume of 100,000 gallons/day of wastewater, with a Total Dissolved 

Solids (TDS) concentration equal to or less than so,ooo mg/1, may be 

discharged to the collection system. 

ERAC No. 786501, Case File Item A. 

III. The Director's "Determination of Unlawful Permit Issuance" 

13 

{1134} On May 16, 2011, Director Nally sent a letter to David Mustine, then 

Director of ODNR. The letter stated in full: 

Dear Director Mustine: 

I am writing to memorialize our recent discussions regarding brine 

disposal from oil and gas operations so that our respective agencies and 

the regulated community will have clear direction moving forward 

concerning this issue. As we have discussed, ODNR has the regulatory 

authority over the disposal of brine generated from oiljgas operations 

pursuant to Ohio Revised Code (ORC) Section 1509.22(C). There are no 

qualifiers as to the relative level of salinity in this definition or rules 

adopted by ODNR under this authority. 

Ohio Revised Code Section 1509.22(C)(1) strictly limits the options for 

disposing of brine resulting from the production of oil and gas to the 

following: 

• injection into an underground formation; 

• road surface application (excluding flow back, drilling and 

treatment fluids); 

• use in association with a method of enhanced recovery; or 

• by other methods approved by the ODNR, Chief of Mineral 

Resources Management for testing or implementing a new 

technology or method of disposal. 

Disposing into a surface water body, either directly or via a Publicly 

Owned Treatment Works (POTW) is not listed as one of these options. 

Moving Forward, ODNR does not envision using its authority to allow for 

discharges to surface waters either directly or via a POTW. 

As you know, the City of Warren is currently accepting low salinity brine 

from oiljgas operations (under so,ooo mg/1). Other POTWs have 

expressed a similar interest but those have not been approved. In order to 
Nos. 156477, 786501, 156588, & 786589 

implement this direction, it is my intention, as Director of Ohio EPA, to 

not reauthorize the City of Warren to take brine from oil/gas operations 

when their permit expires. Further, we will also proceed to deny any other 

permit applications from POTWs that have expressed an interest in 

receiving this material. 

Appellants Ex. 6o. 

14 

{~35} Several witnesses testified at the de novo hearing that this letter 

memorialized a change in "policy" between Director Nally's administration and that of 

the previous Director's administration. The evidence unambiguously documents that 

this "policy change" reflected a new interpretation of the interplay between R.C. Chapter 

6111, which governs Ohio's NPDES program and is regulated by Ohio EPA, and R.C. 

Chapter 1509, which governs oil and gas operations and that the Director acknowledges 

is regulated by ODNR. Significantly, no testimony was presented establishing any 

change in Ohio EPA's evaluation of the potential impact of Patriot's and/or Warren's 

brine wastewater discharges on water quality in the Mahoning River. Testimony Kniss, 

Hall, Blasick, Stuhlfauth. 

{~36} On November 1, 2011, the Director filed a pleading entitled 

"Determination of Unlawful Permit Issuance and Request for Remand" ("Request"). In 

his Request, the Director stated that he "determined" that Ohio EPA's previous 

issuances of the 2010 PTI and the 2010 NPDES Modification exceeded its authority 

because the permits violated R.C. 1509.22. The Director also "requested" that the 

Commission remand the permits because "there [was] an independent legal defect in 

the issuance of the permits and there [was] no further reason for the Commission to 

consider [the] appeals." Case File Item FF. 

{~37} Construing the Director's Request as a motion for summary judgment, 

the Commission denied the Request on November 29, 2011. The Commission noted it 
Nos. 156477, 786501, 156588, & 786589 15 

was unclear whether ERAC had jurisdiction to grant the Director's Request, and even if 

it did, the Director had not properly supported his Motion with admissible evidence 

substantiating several material facts. ERAC Nos. 156477 & 786501, Case File Item FFF. 

{~38} On February 13, 2012, the Director moved for summary judgment on the 

"unlawful issuance" of the 2010 PTI and 2010 NPDES Modification. The Motion for 

Summary Judgment restated the Director's argument that Ohio EPA's previous actions 

were unlawful because they violated R.C. 1509.22. Unlike his November 1, 2011 Request, 

however, the Director supported his February 13, 2012 motion with affidavits from Ohio 

EPA and ODNR employees. ERAC Nos. 156477 & 786501, Case File Item XXX. 

n39} The Commission denied the Director's Motion for Summary Judgment on 

March 20, 2012. In its ruling, the Commission found that by arguing Ohio EPA's actions 

were unlawful, the Director was effectively appealing his own action. The Commission 

concluded that as an appellant, the Director lacked standing because he could not be 

aggrieved or adversely affected by his own final action. 12 ERAC Nos. 156477 & 786501, 

Case File Item CCCCC. 

IV. Issuance of the 2012 NPDES Permit 

{~40} In the midst of the pending litigation at ERAC and elsewhere,13 Warren's 

2010 NPDES Modification was set to expire on January 31, 2012. Thus, prior to the 

" The Commission also noted that pursuant to R.C. 6111.03(J)(7), Ohio Adm.Code 3745-33-04, and 

Ohio Adm.Code 3745-42-02, the Director retained authority to modify or revoke permits under certain 

circumstances, including where the Director determines that "applicable laws" have been violated. ERAC 

Nos. 156477 & 786501, Case File Item CCCCC. 

'" Patriot and Warren maintained at least one parallel case in the Trumbull County Court of 

Common Pleas. In their Trumbull County case, Patriot and Warren asked the Court for declaratory 

judgment on the issue of "whether OEPA, or ODNR, or both, have authority to regulate the treatment, 

processing, and disposal of a type of 'brine water' originating from natural gas and oil production 

operations and ultimately discharging into the waters of the State." Additionally, Patriot and Warren 

asked the Court to define the phrases "implementing a new technology" and "method of disposal" as used 
Nos. 156477,786501, 156588, & 786589 16 

expiration date, Warren submitted its application for an NPDES renewal on September 

16, 2011. Director Ex. TI. 

{~41} In its application for an NPDES renewal, instead of the 100,000 gpd limit 

contained in the 2010 NPDES Modification, Warren requested a loading-based TDS 

limit of 1,180,073 pounds per day. Director Ex. TI. 

{~42} After receiving Warren's NPDES application, Ohio EPA began internal 

discussions regarding terms and conditions to be included in Warren's renewal NPDES 

permit. Among other internal activities, Gary Stuhlfauth, the primary permit writer for 

Warren's 2012 renewal NPDES permit, drafted terms and conditions that incorporated 

the new policy regarding the disposal of brine wastewater through a WWTP as set forth 

in the Director's May 16, 2011 letter. This language would later become Section BB in 

Warren's final2012 NPDES Permit. Testimony Stuhlfauth. 

{~43} On December 1, 2011, Ohio EPA released a draft of Warren's NPDES 

renewal permit for public comment. The draft permit contained two specific TDS 

limitations: (1) a maximum effluent TDS concentration of 622 mg/L, and (2) a monthly 

loading limit of 37,700 kilograms.'4 The draft permit also included a provision, Section 

BB, citing R.C. 1509.22 and implementing Ohio EPA's new policy prohibiting the 

in R.C. 1509.22. Complaint, Patriot Water Treatment, LLC u. Ohio Enu. Protection Agency, Trumbull 

C.P. No. 11 CV 2454 (Nov. 2, 2011). 

On March 30, 2012, the Trumbull County Court of Common Pleas dismissed Patriot and Warren's 

declaratory action, finding that exclusive jurisdiction vested with ERAC because Appellants' Objections to 

Warren's 2012 NPDES Permit, which it filed before this Commission on March 22, 2012, were 

"indistinguishable" from the arguments raised in the Trumbull County declaratory action. Judgment 

Entry, Patriot Water Treatment, LLC u. Ohio Env. Protection Agency, Trumbull C.P. No. 11 CV 2454 

(Mar. 30, 2012). 

'4 37,700 kilograms is equivalent to approximately 83,114 pounds. For a 30-day month, this figure is 

the approximate equivalent of 2, 770 lbs per day, or roughly 0.23% of the 1,180,073 lbs per day Warren 

had requested in its NPDES renewal application. 
Nos. 156477, 786501, 156588, & 786589 17 

disposal of brine wastewater through a WWTP until that method of disposal is approved 

by ODNR. Appellants Ex. 71. 

{~44} Ohio EPA held a public comment period from December 1, 2011 to 

January 12, 2012. During the review period, Ohio EPA received 12 written comments, 

including submissions from Patriot and Warren. Both Patriot's and Warren's written 

comments objected to the specific 622 mg/L TDS limitation and Section BB's express 

prohibition of the acceptance of brine wastewater by Warren until that method is 

approved by ODNR. Director Ex. YY. 

{~45} Ohio EPA also held an approximately 2-hour public hearing on January 

12, 2012. At the public hearing, Ohio EPA received oral testimony from 30 individuals, 

including Tom Angelo (Director, Warren Department of Water Pollution Control), 

Andrew Blocksom (President, Patriot Water Treatment), and April Batt (counsel for 

Appellants). Director Ex. ZZ. 

{~46} Prior to the public hearing, the Agency released the following statement: 

Tonight's public hearing is the final information gathering step in the 

normal five-year renewal process for all NPDES permits. In addition to 

data from a science based study conducted in the Mahoning River from 

December 2010 until September 2011, Ohio EPA took into consideration 

the Clean Water Act, specific U.S. EPA requirements, Pennsylvania water 

quality standards and Ohio law when writing this proposed permit 

renewal. 

Appellants Ex. 74 (emphasis added). 

{~47} Upon learning of this statement, Appellants' counsel requested 

clarification of Ohio EPA's reference to a "science based study." Following a series of 

internal emails, Ohio EPA eventually determined that the statement referencing a 

"science based study" was "a poor choice of words." Mr. Stuhlfauth concluded that the 

statement was "probably referring to the work that [Ohio EPA] did in support of 
Nos. 156477, 786501, 156588, & 786589 18 

renewing the permit," but specifically acknowledged that "[t]here was no study, such as 

a special stream survey, etc., that [Ohio EPA] did in support of the renewal." Because 

the statement was released the day of the January 12, 2012 public hearing, Ohio EPA 

was unable to correct the statement prior to the hearing. Appellants Ex. 74; Testimony 

Stuhlfauth. 

{~48} On March 19, 2012, the Director issued Warren's final 2012 NPDES 

Permit. The final 2012 NPDES Permit did not contain any specific TDS limitation, but 

did address the acceptance of brine wastewater in Section BB of the final 2012 NPDES 

Permit as follows: 

BB. Beginning on the effective date of this permit, the permittee shall stop 

accepting brine wastewater from oil or gas drilling, exploration or 

production. Disposal of brine wastewater from oil or gas drilling, 

exploration or production through a wastewater treatment plant and 

discharge to waters of the state is not an authorized method of disposal 

under R.C. 1509.22(C)(1) unless and until it is approved by the Chief of the 

Division of Oil and Gas Resources Management for testing or 

implementing a new technology or method of disposal. If such an approval 

is granted under R.C. 1509.22(C)(1) by the Chief of the Division of Oil and 

Gas Resources Management, the permittee must submit an NPDES Permit 

Modification application to Ohio EPA for approval prior to acceptance of 

brine wastewater. The permittee may not accept brine wastewater from oil 

or gas drilling, exploration or production until after an NPDES Permit 

Modification authorizing acceptance ofthe material is approved. 

ERAC No. 786589, Case File Item A. 

V. Appellants' Objections and the Director's Motion to Dismiss 

{~49} On March 21, 2012, the Director filed a Notice of Permit Issuance and 

Motion to Dismiss and Postpone De Novo Hearing. The Director argued that the 2012 

NPDES Permit superseded the 2010 NPDES Modification, thereby rendering the 2010 

NPDES Modification moot. The Director further argued that because Warren's 2012 
Nos. 156477, 786501, 156588, & 786589 19 

NPDES Permit prohibited acceptance of brine wastewater, Patriot's 2010 PTI was 

moot.•s ERAC Nos. 156477 & 786501, Case File Item EEEEE. 

{'1150} On March 22, 2012, Patriot and Warren each filed Objections to Warren's 

2012 NPDES Permit pursuant to R.C. 3745.04(B). The Commission construed 

Appellants' Objections as both R.C. 3745.04(B) objections and as new appeals.•6 ERAC 

Nos. 156477 & 786501, Case File Items FFFFF and GGGGG, ERAC Nos. 156588 & 

786589, Case File Items A, B, and C. 

{'1151} Both Patriot and Warren presented the same four objections to Warren's 

2012 NPDES Permit: 

A. The Director failed to follow Ohio law with respect to pre-issuance 

requirements. 

B. The Director engaged in an unreasonable and unlawful public process 

that misled the public. 

C. The Director's issuance of Section II.BB of the NPDES Renewal Permit 

exceeds the Director's authority. 

D. The Director's issuance of Section II.BB of the NPDES Renewal Permit 

is unreasonable and unlawful. 

ERAC Nos. 156477 & 786501, Case File Items FFFFF and GGGGG. 

{'1152} These objections effectively amended Patriot's and Warren's appeals to 

the 2010 PTI and 2010 NPDES Modification to include objections to Warren's 2012 

NPDES Permit. Accordingly, even though the Commission found that the 2012 NPDES 

Permit superseded the 2010 NPDES Modification, the Commission granted the 

>s Notably, the Director did not argue that Patriot's 2012 PTI superseded its 2010 PTI. ERAC Nos. 

1564 77 & 786501, Case File Item EEEEE. 

>6 Both Objections stated, " • • • this document should also serve as [Patriot/Warren's] protective 

Notice of Appeal filed pursuant to R.C. 3745.04, R.C. 3745.07 and/or O.A.C. 3746-5-06 aud Ohio case 

law." ERAC Nos. 156477 & 786501, Case File Items FFFFF and GGGGG. 
Nos. 156477, 786501, 156588, & 786589 20 

Director's Motion to Dismiss only with respect to the assignments of error challenging 

Warren's 2010 NPDES Modification. The Commission also denied the Director's Motion 

with respect to Patriot's 2010 PTI, finding that meaningful relief could be granted if the 

Commission ruled in Appellants' favor with respect to Section BB of Warren's 2012 

NPDES Permit. ERAC Nos. 156477 & 786501, Case File Item EEEEEE. 

VI. Director's Motion for Partial Summary Judgment 

{1153} On April 13, 2012, the Director filed a Motion for Partial Summary 

Judgment on the following three issues: "(1) Appellants treat and dispose of brine; (2) 

the Chief of the Ohio Department of Natural Resources ('ODNR') Division of Oil and 

Gas Management, or his predecessor, the Chief of ODNR Division of Mineral Resources 

Management, has not approved Appellants' method of disposal of brine; and (3) the 

Director's issuance of a draft renewal permit to Warren was lawful and reasonable." 

ERAC Nos. 156477 & 786501, Case File Item MMMMMM. 

{1154} Although these three issues did not correspond directly to either 

Appellants' specific assignments of error or Appellants' objections filed in response to 

the Director's Notice of Permit Issuance, the Commission addressed each of Appellants' 

four objections to the 2012 NPDES Permit. The Commission granted the Director's 

Motion for Partial Summary Judgment with respect to Appellants' Objection A, which 

challenged the Director's issuance of a "draft" rather than "proposed" NPDES permit, 

and denied the Director's Motion for Partial Summary Judgment in all other respects. 

As indicated in the Commission's Ruling, a discussion of Objection A is included below. 

ERAC Nos. 156477 & 786501, Case File Item YYYYYY. 
Nos. 156477, 786501, 156588, & 786589 21 

VII. Appellants' Assignments of Error and/or Objections 

{~55} The Commission will now address each of Appellants' Assignments of 

Error and/or Objections. 

A. 100,000 gpd Discharge Limitation 

{~56} Appellants argue that the 100,000 gpd discharge limitation contained in 

Patriot's 2010 PTI is unlawful and unreasonable for two reasons: (1) the Director should 

have set a "loading-based" rather than "flow-based" discharge limitation; and (2) even if 

a flow-based discharge limitation is acceptable, the 100,000 gpd limitation is 

unreasonably low. Conversely, the Director responds that (1) Ohio EPA did not set a 

loading-based limit because Patriot lacked the equipment necessary to demonstrate 

compliance with such a requirement at the time the 2010 PTI was issued; and (2) the 

100,000 gpd limitation is reasonable because it was necessary to ensure compliance 

with its anti-degradation rule. 

{~57} At hearing, Richard Blasick, Manager, DSWM, Ohio EPA Northeast 

District Office ("NEDO"), testified that loading, concentration, and flow are all 

components of the same mathematical relationship. 17 Based on this relationship, Mr. 

Blasick explained that all three components are standard water quality related terms 

and conditions routinely contained in Ohio EPA PTI and NPDES permits. Testimony 

Blasick. 

{~58} Further, Mr. Blasick confirmed that Ohio EPA set only flow- and 

concentration-based discharge limitations in Patriot's 2010 PTI. Ohio EPA did not set a 

" Specifically, these three factors are related as follows: 

Concentration(mass; ) x Flow(volj . ) = Loading(mass; . ) vol ttme ttme 
Nos. 156477, 786501, 156588, & 786589 22 

loading-based discharge limitation because, at the time, Patriot had not installed a 

conductivity meter, a device designed to demonstrate compliance with a loading-based 

limit.'s Testimony Blasick. 

{1159} Appellants do not dispute that a conductivity monitor is required to 

comply with a "loading-based" discharge limitation and that Patriot did not include such 

a conductivity monitor in its PTI application. Instead, Appellants merely argue that 

Patriot "offered" to install such a monitor. Significantly, the parties presented no 

testimony at hearing indicating that Patriot ever modified its PTI application to reflect 

this "offer." Testimony Blocksom, Angelo. 

{116o} Paul Novak, DSWM's Permitting and Compliance Manager, also 

explained that the Agency set a maximum discharge limitation of 100,000 gpd to ensure 

that the potential increase in TDS concentration in the Mahoning River was not 

"significant."19 Mr. Novak explained that, pursuant to Ohio EPA's anti-degradation rule, 

the Agency considered "significant" increases to be those that are greater than 

approximately 10%. Testimony Novak. 

{1161} Mr. Novak testified that he calculated the potential TDS increase 

associated with various discharge levels using the following inputs: (1) the TDS 

'" Mr. Blasick noted that because Patriot installed a conductivity monitor after the 2010 PTI was 

issued, Ohio EPA could successfully impose a loading-based discharge limitation. Testimony Blasick. 

'• Mr. Novak explained that he also considered possible biological inhibition at the Warren WWfP, 

Ohio's water quality standard for TDS (1,500 mg/L), and Pennsylvania's water quality standard for TDS 

(500 mg/L). However, Mr. Novak testified that his primary concern was whether a "significant" increase 

in TDS concentration would occur in the Mahoning River as a result of the Patriot/Warren discharge. 

Testimony Novak. 
Nos. 156477, 786501, 156588, & 786589 23 

concentration in Patriot's effluent, (2) the discharge rate from Patriot to Warren's 

WWTP, (3) the flow in the Mahoning River, and (4) the flow from Warren's POTW.2o 

Testimony Novak; Director Ex. X andY. 

{~62} Selecting 50,000 mg/1 as the TDS concentration in Patriot's effluent, 12 

million gpd as Warren's WWTP flow, and 87 million gpd as the Mahoning River flow, 

Mr. Novak calculated a potential TDS concentration increase of 51 mg TDS/1 for a 

100,000 gpd discharge rate from Patriot's facility. Testimony Novak; Director Exs. X 

andY. 

{~63} Using a background TDS concentration in the Mahoning River of 307 mg 

TDS/1, Mr. Novak calculated that this 51 mg TDS/1 increase represented an 

approximately 17% increase in TDS levels in the Mahoning River. Testimony Novak. 

{~64} Ms. Kniss also testified that she performed similar calculations to 

determine the potential increase in TDS concentration resulting from Patriot's proposed 

discharges. Although Ms. Kniss did not include the 12 million gpd Warren WWTP flow 

in her calculations, she did, however, factor in the additional flow that would be caused 

by the volume of liquid discharged by Patriot through Warren's POTW.21 Testimony 

Kniss; Director Ex. V. 

' 0 Specifically, Mr. Novak testified that he used the following equations: 

TDS concentration x Daily Discharge =Daily TDS loading 

__ _____:0::":::oily,_T:..:0c::. 5 ::::. 10:::"d:::in,_g ___ =Increase in TDS concentration 

FlowMahoning River+Flowwarren WWTP 

Testimony Novak; Director Exs. X andY. 

" Specifically, Ms. Kniss testified that she used the following equations: 

TDS concentration x Daily Discharge= Daily TDS loading 

Dally TDS loading 

FloWMahoning River+DischargePatriot 

Increase in TDS concentration 

Testimony Kniss; Director Ex. V. 
Nos. 156477, 786501, 156588, & 786589 24 

{1165} Using the same 50,000 mg TDS/1 for brine, Ms. Kniss calculated a TDS 

concentration increase of 57·3 mg TDS/1 for a 100,000 gpd discharge rate. This 

corresponded to an approximately 19% increase over baseline TDS levels. Testimony 

Kniss; Director Ex. V. 

{1166} Although Mr. Novak and Ms. Kniss's calculations differed slightly, both 

calculations yielded similar results with respect to a 100,000 gpd discharge. Mr. Novak's 

calculations estimated a 17% increase, whereas Ms. Kniss's calculations predicted an 

approximately 19% increase. Both figures exceed the target 10% TDS concentration 

increase. Director Exs. V, X, andY. 

{1167} With respect to the specific 100,000 gpd figure, Appellants do not dispute 

Ohio EPA's use of 50,000 mg TDS/1 for the TDS concentration in the brine wastewater 

discharged from Patriot's facility. In fact, Mr. Blocksom explained that 50,000 mg 

TDS/L represented both the industry-defined upper limit for "low-salinity" wastewater 

and the point at which Patriot's facility could no longer effectively treat brine 

wastewater. Appellants likewise do not dispute the equations used by Mr. Novak and 

Ms. Kniss to calculate the potential TDS concentration increase. See Testimony 

Blocksom; Director Ex. TT. 

{1168} Instead, Appellants challenge only the 87 million gpd input Ohio EPA 

used as the value for flow in the Mahoning River. The 87 million gpd figure represents 

the "7Q1o" flow for the relevant portion of the Mahoning River. "7Q10" flow is defined 

as the lowest 7-day average flow that occurs, on average, every 10 years. Thus, 7Q10 

values reflect seasonal and other natural variations in river flow. Testimony Angelo. 

{1169} Appellants argue that Ohio EPA improperly used the 87-million gpd 7Q10 

value to calculate the discharge limit. In particular, because the flow in the Mahoning 
Nos. 156477,786501, 156588, & 786589 25 

River is controlled by the Army Corps of Engineers ("Army Corps") through a series of 

dams rather than by seasonal variations, Appellants contend that Ohio EPA should have 

used a flow value of 145 cubic feet per second ("cfs") in calculating the permit limits. 

Appellants note that the 145 cfs flow value had been used in setting limits in previous 

NPDES permits for Warren. Testimony Angelo. 

{~70} In support, Appellants point to a fact sheet released in association with 

Warren's 1986 NPDES permit. The fact sheet stated in pertinent part: 

Flows in the Mahoning River are completely regulated by a series of dams 

located upstream of the study area. The lowest flow occurs in February 

while the high flow is July. Because of this, using the Q3o,w flow to 

calculate average limits and the Q7,w flow to calculate the maximum 

limits is not appropriate. 

Appellants Ex. 28 (emphasis added). 

{~71} At the hearing, witnesses for the Director were unable to identify any 

specific factor to explain why the Agency's determination that the use of 7Q10 was not 

appropriate would have "changed" since issuance of the 1986 Warren fact sheet. See 

Testimony Kniss, Novak, Blasick. 

{~72} Further, on Appellants' behalf, Mr. Angelo testified that even small 

differences in the value used for flow can create significant changes when calculating 

permit limits. Significantly, however, Mr. Angelo provided no specific testimony 

regarding the extent of the changes that might have resulted from the higher 145 cfs flow 

value proposed by Appellants, and no other witnesses discussed the effect the use of a 

flow value of 145 cfs might have had on Warren's NPDES permit terms or conditions. 

Testimony Angelo. 
Nos. 156477, 786501, 156588, & 786589 26 

{~73} Several witnesses on behalf of the Director testified that the use of 7Q10 

was indeed appropriate and that the 7Q10 low-flow value is routinely used to calculate 

permit limits. Testimony Kniss, Novak, Blasick. 

{~74} Moreover, Ohio EPA also argues that the 87-million gpd 7Q10 value used 

to calculate the discharge limitation in Patriot's 2010 PTI was not significantly different 

from the 145 cfs Army Corps value cited by Appellants. For example, Ohio EPA's 

response to comments on the draft 2012 NPDES Permit relating to the 7Q10 flow value 

appeared as follows: 

Comment 8: The streamflow that was used in the conservative substance 

wasteload allocation model (CONSWLA) is incorrect. It is different than 

the flow cited in fact sheets from the period 1984 through 1996. During 

that time, the flow used in the allocation was based on the low flow that 

occurred in February due to the Army Corp of Engineers' regulation of 

the flows in the Mahoning River. 

Response 8: Similar to the allocation procedure described in the fact sheet 

for the 2008 permit renewal, the modeling for the current renewal used 

the annual 7Q10 flow to calculate the allocation for TDS. The 7Q10 flow, 

136 cfs, is similar to the February low flow cited in the 1996 fact sheet, 145 

cfs. 

Appellants Ex. 8. 

{~75} The Commission surmises that the differences in flow values did not have 

a significant effect on Patriot's corresponding discharge limitation. Even if Ohio EPA 

had adopted the Army Corps flow value (145 cfs) rather than 7Q10 (87 million gpd), the 
Nos. 156477,786501, 156588, & 786589 27 

corresponding change in the discharge required to reach an equivalent TDS level in the 

Mahoning River would have been no more than 7,000 gpd. 22 

{~76} Finally, Appellants argue that notwithstanding any error in Ohio EPA's 

calculations, the results of the EnviroScience WET testing and pilot study demonstrate 

that discharges of more than 100,000 gpd would not have resulted in a violation of 

water quality standards for the Mahoning River. Specifically, Appellants argue that, 

because the pilot study showed no adverse effects at a discharge rate of 100,000 gallons 

per 8-hour period, Patriot and Warren could safely discharge at least 300,000 gallons 

per 24-hour period. Cf Testimony Kniss. 

{~77} On the Director's behalf, Ms. Kniss explained that Ohio EPA could not 

extrapolate the study's 100,000 gallons per 8-hour period discharge to support a 

300,000 gallons per 24-hour period discharge because such escalation would increase 

the risk of effluent toxicity and the inhibition of the biological processes at the Warren 

WWTP. Although the pilot study confirmed the safety of short-term discharges at a 

particular level of TDS loading, Ms. Kniss explained that it did not specifically 

demonstrate the same for continuous loading at that level. Testimony Kniss. 

22 Specifically, the table below shows tbe flow rates tbat would result in an equivalent TDS load to 

that permitted in Patriot's 2010 PTI, using both Ms. Kniss's and Mr. Novak's method of calculation: 

2010 PTI discharge limit (using 7Q10 Discharge Required to Achieve 

Equivalent TDS Concentration flow) (using Army Corps flow) 

Novak 100,000 gpd Approx. 105,823 gpd 

Method 

Kniss Metbod lOO,OOOgpd Approx. 106,617 gpd 

See notes 20 and 21, supra. 
Nos. 156477, 786501, 156588, & 786589 28 

{~78} Neither party addressed in detail the EnviroScience WET testing, which 

concluded that Patriot and Warren could safely discharge 664,000 gpd. In particular, 

the Commission notes that only the cover page of the test results was admitted into 

evidence at the de novo hearing and that the underlying data was not presented. Thus, 

no evidence before the Commission demonstrates how EnviroScience arrived at the 

conclusion that Appellants could safely discharge 664,000 gpd into the Mahoning River. 

B. Requirement to Comply with Pretreatment Standards 

{~79} In Assignment of Error B, Patriot challenges the following term in its 

2010 PTI: 

Patriot Water Treatment LLC shall comply with all applicable U.S. EPA 

categorical pretreatment standards and local pretreatment regulations as 

they are adopted from time to time. 

ERAC No. 156477, Case File Item A. 

{~So} Patriot did not present any specific evidence at the de novo hearing 

regarding this assignment of error. Its Notice of Appeal, however, states that the term is 

unreasonable and unlawful because it "does not provide regulatory certainty." ERAC No. 

156477, Case File Item A. 

C. Misleading Statement Accompanying Public Hearing 

{~81} In Objection B, Appellants argue that the public notice and comment 

process for the 2012 NPDES Permit was unlawful because the Director released a false 

and/or misleading statement to the public in connection with the January 12, 2012 

public hearing. This, Appellants argue, rendered the permit's notice and comment 

period defective. ERAC Nos. 156477 & 786501, Case File Items FFFFF and GGGGG. 

{~82} Specifically, Appellants take issue with the statement's reference to a 

"science based study." As noted above, Ohio EPA eventually concluded that the 
Nos. 156477, 786501, 156588, & 786589 29 

statement was a "poor choice of words." Appellants argue because Ohio EPA released an 

inaccurate statement in connection with its January 12, 2012 public hearing, Warren's 

2012 NPDES Permit should be invalidated. Appellants Ex. 74· 

{~83} Significantly, the Commission notes that the final version of 2012 NPDES 

Permit does not contain a specific TDS effluent discharge limitation, and no evidence 

was presented demonstrating that the "science based study" at issue here had any 

bearing on any of the permit terms challenged by Appellants during the renewal 

process. As discussed in greater detail below, the Director included Section BB in 

Warren's 2012 NPDES Permit in order to "ensure compliance" with R.C. 1509.22 rather 

than for scientific reasons or to ensure compliance water quality standards. Thus, 

Appellants were not prejudiced by Ohio EPA's error. Appellants Ex. 79. 

D. Draft vs. Proposed NPDES Permit 

{~84} In Objection A, Appellants argue that the Director was required to first 

issue Warren's 2012 NPDES renewal as a "proposed," rather than "draft," permit. ERAC 

Nos. 156477 & 786501, Case File Items FFFFF and GGGGG. 

{~85} On April 13, 2012, the Director filed a Motion for Partial Summary 

Judgment, in which he argued that pursuant to R.C. 3745.07, the decision to issue a 

permit as "proposed" is discretionary. Specifically, R.C. 3745.07 states in pertinent part: 

Before issuing, denying, modifying, revoking, or renewing any permit, 

license, or variance under Chapter 3704., 3714., 3734., or 6111. of the 

Revised Code, the director of environmental protection may issue a 

proposed action to the applicant that indicates the director's intent with 

regard to the issuance, denial, modification, revocation, or renewal of the 

permit, license, or variance. * * * 

(Emphasis added). 
Nos. 156477,786501, 156588, & 786589 30 

{~86} The Director argued the word "may" indicates that the choice to issue a 

"proposed" rather than a "draft" permit was wholly within his discretion. ERAC Nos. 

156477 & 786501, Case File Item MMMMMM. 

{~87} In their memorandum in opposition to the Director's motion, Appellants 

argued that a Memorandum of Agreement between the United States Environmental 

Protection Agency ("U.S. EPA") and Ohio EPA requires all NPDES permits to be issued 

as "proposed" rather than "draft."23 Although the Memorandum of Agreement makes 

several references to "proposed" NPDES permits, the term is not defined. ERAC Nos. 

156477 & 786501, Case File Item VVVVVV. 

{~88} A U.S. EPA memorandum issued specifically relating to Warren's 2012 

NPDES Permit also references a "proposed" rather than "draft" permit. In particular, 

the memorandum states in pertinent part: 

When the Proposed Permit is issued, please forward one copy and any 

significant comments received during any public notice period to this 

office*** 

Director Ex. AAA (emphasis removed). 

{~89} Similarly, however, this memorandum neither defines "proposed" nor 

expressly requires issuance of a "proposed" permit within the meaning of the Ohio 

Administrative Code. Director Ex. AAA. 

{~go} The Commission granted the Director's Motion for Partial Summary 

Judgment with respect to Objection A on April 24, 2012. ERAC Nos. 156477 & 786501, 

Case File Item YYYYYY. 

2 3 Appellants did not attach the Memorandum of Agreement to their Response or otherwise provide 

an authenticated copy of the memorandum to this Commission. Moreover, the memorandum was not 

introduced at the hearing. See ERAC Nos. 156477 & 786501, Case File Item VWVVV. 
Nos. 156477, 786501, 156588, & 786589 31 

E. Part II, Section BB of Warren's 2012 NPDES Permit 

{~91} In Objections C and D, Appellants argue that the Director acted 

unlawfully and unreasonably by including Section BB in Warren's 2012 NPDES Permit. 

Section BB appears as follows: 

BB. Beginning on the effective date of this permit, the permittee shall stop 

accepting brine wastewater from oil or gas drilling, exploration or 

production. Disposal of brine wastewater from oil or gas drilling, 

exploration or production through a wastewater treatment plant and 

discharge to waters of the state is not an authorized method of disposal 

under R.C. 1509.22(C)(1) unless and until it is approved by the Chief of the 

Division of Oil and Gas Resources Management for testing or 

implementing a new technology or method of disposal. If such an approval 

is granted under R.C. 1509.22(C)(1) by the Chief of the Division of Oil and 

Gas Resources Management, the permittee must submit an NPDES Permit 

Modification application to Ohio EPA for approval prior to acceptance of 

brine wastewater. The permittee may not accept brine wastewater from oil 

or gas drilling, exploration or production until after an NPDES Permit 

Modification authorizing acceptance of the material is approved. 

ERAC No. 786589, Case File Item A. 

{~92} Appellants argue that the Director lacks authority to enforce Chapter 

1509 of the Revised Code and therefore exceeded his authority by including Section BB 

in Warren's 2012 NPDES Permit. Further, Appellants argue that even if the Director had 

the authority to include Section BB, Patriot and/or Warren did, in fact, obtain 

"approval" from ODNR pursuant to R.C. 1509.22(C). 

{~93} The Director responds that he was required to include Section BB to 

"ensure compliance" with R.C. 1509.22, and the permit term is also "ancillary" to the 

protection of water quality and thus authorized under Ohio Adm.Code 3745-33-07(A). 

Testimony Hall. 

{~94} As an initial matter, the parties also dispute whether Section BB 

affirmatively prohibits Warren from accepting brine wastewater. Appellants argue that 
Nos. 156477, 786501, 156588, & 786589 32 

neither Patriot's 2010 PTI nor Warren's 2010 NPDES Permit conditioned the 

acceptance of brine wastewater on ODNR approval. Therefore, Appellants argue Section 

BB constitutes an affirmative prohibition. Testimony Blocksom. 

{~95} On behalf of the Director, Brian Hall, Assistant Chief for DSWM at Ohio 

EPA, testified that the provision does not create an affirmative prohibition. Mr. Hall 

testified in relevant part as follows: 

Q. * * * Ohio EPA is prohibiting Warren from accepting waters from 

Patriot based on Ohio EPA's determination of compliance status 

with 1509.22. Does your statute allow you to do that? 

*** 

A. I believe that what we put in the Warren NPDES permit is asking 

Warren-- we're not prohibiting them. We're saying you need to get 

approval from DNR before you can accept this. 

*** 

Q. So on page 34 in BB, the first sentence says, "Beginning on the 

effective date of this permit, the permittee shall stop accepting 

brine wastewater from oil and gas drilling, exploration and 

production." Do you see that? 

A. It goes on, April, to say that, upon approval from DNR, that they 

could discharge it. 

Testimony Hall. 

{'ll96} Significantly, however, also on behalf of the Director, Mr. Blasick 

explained that Section BB could give rise to an enforcement action, based solely on the 

permit term. Specifically, Mr. Blasick testified as follows: 

COMMISSIONER SHILLING: I have one question. What would you 

advise the agency to do if, all of a sudden, Patriot and Warren resumed 

business together, ignoring BB all together? 

THE WITNESS: They ignored--

COMMISSIONER SHILLING: They just pretended BB didn't exist in the 

NPDES permit. 
Nos. 156477, 786501, 156588, & 786589 

THE WITNESS: I would recommend that we initiate an enforcement 

action against the City of Warren. 

COMMISSIONER SHILLING: Based on? 

THE WITNESS: Based on the fact that they were in violation of that 

condition within the permit. 

COMMISSIONER SHILLING: I guess I'm getting to the bigger question. 

If you take that -- and I'm kind of guessing at this point. How would you 

put that case together for the Director in terms of a violation of 1509? 

THE WITNESS: Yeah. It would be a violation of the permit conditions 

that they had not received approval from ODNR for 1509, and they were 

accepting wastewaters that they shouldn't be. 

Testimony Blasick. 

33 

{~97} Addressing the Director's authority to issue Section BB, Mr. Stuhlfauth, 

who drafted the 2012 NPDES Permit, testified that although Ohio EPA rarely includes 

specific references to sections of the Revised Code outside of Chapter 6111 in NPDES 

permits, the provision was included in Warren's 2012 NPDES Permit to implement the 

Director's policy, as outlined in his May 16, 2011 letter, and to ensure compliance with 

R.C. 1509.22. Specifically, Mr. Stuhlfauth testified as follows: 

Q. And, again, the purpose for BB was to implement Director Nally's 

determination; is that correct? 

A. It was in the May 2011letter. Yes. 

Testimony Stuhlfauth. 

{~98} On behalf of the Director, Mr. Hall also explained that he believes Section 

BB is "ancillary" to water quality protection and, therefore, authorized under Ohio 

Adm.Code 3745-33-07(A). Regarding the connection between Section BB and the 

protection of water quality, Mr. Hall testified in pertinent part as follows: 

Q. And you testified that [Ohio Adm.Code 3745-33-07] gives you the 

ability to add a prohibition [of brine] in Warren's NPDES renewal? 
Nos. 156477,786501, 156588, & 786589 

A. No. What I said was that I believe that we have the ability - if 

something is ancillary to water quality or to an NPDES permit, that 

we feel that we have the right to add it as a condition of the permit. 

Q. What does "ancillary" mean? 

A. To me, it means it's something that's additive. It gets us from Point 

A to Point B to Point C. 

*** 

Q. So to ensure adequate protection of water quality. I'm asking you: 

What are you trying to - what compliance or noncompliance have 

you determined that Warren - that you cannot ensure adequate 

protection of water quality without prohibiting Warren from 

accepting Patriot's water? 

A. We don't know. That's why we're asking for a modification to the 

permit. 

Q. You don't know? 

A. Yeah. What concentrations will be coming from Patriot to Warren is 

why we're asking - we would be asking for another modification to 

the permit. 

Q. You already know, Brian. You set those limits in the 2010 

modification. They are so,ooo milligrams per liters TDS, correct? 

A. That was in the previous permit, yes. 

Q. So you do know. You know what water's coming into Warren. 

A. But if DNR gives them approval, would it be what - would it be for 

low-salinity brine? Would it be for high-salinity brine? We don't 

know. 

Testimony Hall. 

34 

{~99} Mr. Hall explained that the concentration of TDS affects the volume of 

wastewater discharge that Ohio EPA would allow under its NPDES program. For 

example, if ODNR "approved" Warren to dispose of high salinity brine, such approval 

could affect Ohio EPA's evaluation of the volume of liquid it would authorize Warren to 

discharge. Significantly, however, no testimony was presented indicating why the 
Nos. 156477, 786501, 156588, & 786589 35 

Director could not directly regulate TDS concentration in a permit, independent of any 

ODNR action, just as the Agency had done in Warren's 2010 NPDES Modification and 

in Patriot's 2010 PTI. Testimony Hall. 

{~100} Finally, both the Director's argument that Section BB was required to 

"ensure compliance" with R.C. 1509.22, and his argument that Section BB is "ancillary" 

to the protection of water quality, necessarily hinge on a determination that Patriot and 

Warren have not, in fact, obtained ODNR "approval" pursuant to R.C. 1509.22(C). In 

this regard, the Director argues that ODNR only issues R.C. 1509.22(C) "approval" in 

response to formal applications, and that such "approval" is issued only in the form of a 

Chiefs Order. Because Warren had neither applied for such approval nor obtained a 

Chiefs Order, the Director contends that Warren had not received "approval" pursuant 

to R.C. 1509.22. Testimony Husted, Simmers. 

{~101} Conversely, Appellants argue that a series of communications between 

Ohio EPA and ODNR demonstrate that ODNR did "approve" Patriot's method of 

disposal and that no formal Chiefs Order was required. Specifically, Appellants rely on 

an April 29, 2009 email from Brian Hall to Rich Blasick, which states in pertinent part: 

Scott [Kell, of ODNR] clearly stated that taking brine to POTW/CWT is 

clearly under Ohio EPA jurisdiction and it would leave it up to [Ohio EPA] 

to determine if a treatment system could meet WQS. * * * 

ERAC Nos. 156477 & 786501, Case File Item PPPP; Testimony Blocksom, Angelo. 

{~102} Appellants argue that this email memorializes extensive discussions 

between Ohio EPA and ODNR regarding R.C. 1509.22. Appellants contend that ODNR's 

knowledge of Patriot's and Warren's proposal, combined with its subsequent 

determination that ODNR did not have jurisdiction over such discharges, constituted 
Nos. 156477, 786501, 156588, & 786589 

"approval" within the meaning of R.C. 1509.22. ERAC Nos. 156477 & 786501, Case File 

ItemPPPP. 

CONCLUSIONS OF LAW 

I. Standard of Review 

{~103} Ohio Revised Code 3745.05 sets forth the standard ERAC must employ 

when reviewing a final action of the Director. The statute provides, in relevant part, that 

"[i]f, upon completion of the hearing, the commission finds that the action appealed 

from was lawful and reasonable, it shall make a written order affirming the action, or if 

the commission finds that the action was unreasonable or unlawful, it shall make a 

written order vacating or modifying the action appealed from." R.C. 3745.05. 

{~104} This standard does not permit ERAC to substitute its judgment for that of 

the Director as to factual issues. CECOS Intematl., Inc. v. Shank, 79 Ohio App.3d 1, 6 

(10th Dist. 1992). The term "unlawful" means "that which is not in accordance with 

law," and the term "unreasonable" means "that which is not in accordance with reason, 

or that which has no factual foundation." Citizens Committee to Preserve Lake Logan v. 

Williams, 56 Ohio App.2d 61, 70 (10th Dist. 1977). "It is only where [ERAC] can 

properly find from the evidence that there is no valid factual foundation for the 

Director's action that such action can be found to be unreasonable. Accordingly, the 

ultimate factual issue to be determined by [ERAC] upon the de novo hearing is whether 

there is a valid factual foundation for the Director's action and not whether the 

Director's action is the best or most appropriate action, nor whether [ERAC] would have 

taken the same action." I d. 

{~105} Further, the Commission is required to grant "due deference to the 

Director's 'reasonable interpretation of the legislative scheme governing his Agency."' 
Nos. 156477, 786501, 156588, & 786589 37 

Sandusky Dock Corp. v. Jones, 106 Ohio St.3d 274 (2005), citing Northwestern Ohio 

Bldg. & Constr. Trades Council v. Conrad, 92 Ohio St.3d 282 (2001); State ex rel. 

Celebrezze v. National Lime & Stone Co., 68 Ohio St. 3d 377 (1994); North Sanitary 

Landfill, Inc. v. Nichols, 14 Ohio App. 3d 331 (2nd Dist. 1984). The deference is not, 

however, without limits. See e.g., B.P. Exploration and Oil, Inc. v. Jones, ERAC Nos. 

184134-36 (March 21, 2001) (in which the Commission noted that such deference must 

be granted to the Director's interpretation and application of his statutes and rules, 

"particularly if the Director's interpretation is not at variance with the explicit language 

of the regulations"). 

{~106} The Commission will now address each of Appellants' assignments of 

error, as well as each of Appellants' objections to Warren's 2012 NPDES Permit. 

II. 1oo,ooo gpd Discharge Limitation 

{~107} In Assignment of Error A, Patriot challenges the following provision in its 

2010 PTI: 

No more than 100,000 gallons per day (gpd) may be discharged into the 

City of Warren sewer system unless prior approval is obtained from the 

Ohio Environmental Protection Agency and the City of Warren. 

{~108} Specifically, Patriot argues that the Director improperly imposed a flowbased rather than loading-based discharge limitation. Patriot also argues that even if a 

flow-based limitation was acceptable, the specific 100,000 gpd limitation was 

unreasonably low. Specifically, Patriot challenges Ohio EPA's use of the 87-million-gpd 

7Q10 value in calculating the 100,000 gpd discharge limitation and also argues that 

WET testing data demonstrates Patriot could safely discharge at least 300,000 gpd. 

{~109} In response, the Director argues that Ohio EPA could not have set a 

loading-based discharge limitation at the time the 2010 PTI was issued because Patriot 
Nos. 156477, 786501, 156588, & 786589 

had not yet installed the requisite equipment. The Director further contends that PTis 

and NPDES permits regularly contain a combination of limitations based on flow, 

concentration, and loading. Additionally, with respect to the specific 100,000 gpd 

limitation, the Director argues that its use of 7Q10 was reasonable and that the 100,000 

gpd limitation was necessary to ensure compliance with Ohio EPA's anti-degradation 

rule. 

{~110} Regarding the use of flow-based rather than loading-based discharge 

limitations, Patriot agrees that a conductivity meter is required to demonstrate 

compliance with loading-based discharge limitations. Patriot also agrees that its PTI 

application did not contain such equipment and that such equipment was not installed 

when the Director issued the 2010 PTI. Accordingly, the Commission finds that the 

Director possessed a valid factual foundation, and thus acted reasonably in not 

including a loading-based discharge limitation in Patriot's 2010 PTI. 

{~111} Moreover, the Commission also notes that it has previously affirmed 

permit restrictions based on a combination of factors. See Shelly Materials, Inc. v. 

Koncelik, ERAC No. 645916 (January 25, 2012), at ~203. Similar to the restrictions in 

Shelly Materials, the combination of the flow and concentration restrictions at issue 

here work together to restrict TDS loading in the Mahoning River. 

{~112} Regarding the specific 100,000 gpd value, testimony established that 

Ohio EPA set the 100,000 gpd limit primarily for the purpose of satisfying its antidegradation rule set forth in Ohio Adm.Code 3745-1-05. Specifically, Mr. Novak 

explained that Ohio EPA targeted a TDS concentration increase in the Mahoning River 

of approximately 10%. 
Nos. 156477, 786501, 156588, & 786589 

{~113} Ohio's anti-degradation rule states in pertinent part: 

*** 

When making determinations regarding proposed activities that lower 

water quality the director shall consider the following: 

(a) The magnitude of the proposed lowering of water quality; 

(b) The anticipated impact of the proposed lowering of water quality on 

aquatic life and wildlife, including threatened and endangered species, 

important commercial or recreational sport fish species, other individual 

species and the overall aquatic community structure and function; 

(c) The anticipated impact of the proposed lowering of water quality on 

human health and the overall quality and value of the water resource; 

(d) The degree to which water quality may be lowered in waters located 

within national, state or local parks, preserves or wildlife areas, waters 

listed as state resource waters in rules 3745-1-08 to 3745-1-30 of the 

Administrative Code, or waters categorized outstanding national resource 

waters, outstanding state waters or superior high quality waters; 

(e) The effects of lower water quality on the economic value of the water 

body for recreation, tourism and other commercial activities, aesthetics, or 

other use and enjoyment by humans; 

(f) The extent to which the resources or characteristics adversely impacted 

by the lowered water quality are unique or rare within the locality or state; 

(g) The cost of the water pollution controls associated with the proposed 

activity; 

(h) The cost effectiveness and technical feasibility of the non-degradation 

alternatives, minimal degradation alternatives or mitigative technique 

alternatives and the effluent reduction benefits and water quality benefits 

associated with such alternatives; 

(i) The availability, cost effectiveness, and technical feasibility of central or 

regional sewage collection and treatment facilities, including long-range 

plans outlined in state or local water quality management planning 

documents and applicable facility planning documents; 

G) The availability, reliability and cost effectiveness of any nondegradation alternative, minimal degradation alternative or mitigative 

technique alternative; 

39 
Nos. 156477,786501, 156588, &786589 

(k) The reliability of the preferred alternative including, but not limited to, 

the possibility of recurring operational and maintenance difficulties that 

would lead to increased degradation; 

(I) The condition of the local economy, the number and types of new direct 

and indirect jobs to be created, state and local tax revenue to be generated, 

and other economic and social factors as the director deems appropriate; 

and 

(m) Any other information regarding the proposed activities and the 

affected water body that the director deems appropriate. 

Ohio Adm.Code 3745-1-05 (Emphasis added). 

40 

{~114} Thus, under Ohio Adm.Code 3745-1-05, the magnitude of TDS 

concentration increase, and its corresponding effect on water quality, is clearly a 

permissible factor the Director may consider in evaluating a proposed discharge. 

{~115} Further, the myriad of factors listed in the anti-degradation rule 

illustrates the balance the Director must strike when evaluating the impact of new or 

experimental types of discharges. Here, Patriot did not specifically challenge Ohio EPA's 

10% target TDS concentration increase and acknowledges its proposal represented a 

novel approach to brine wastewater treatment and disposal in Ohio. Moreover, even 

after Appellants' 8-week pilot study, Ohio EPA had not received data regarding the longterm (i.e., longer than eight weeks) effects of the proposed discharge. 

{~116} With regard to Ohio EPA's calculation of the potential TDS concentration 

increase associated with a discharge rate of 100,000 gpd, Patriot contends that Ohio 

EPA's use of 7Q10 as a factor in the calculation was unreasonable. Specifically, Patriot 

argues that flow in the Mahoning River is controlled by the Army Corps through a series 

of dams. Thus, Patriot argues that the use of the 87-million-gpd 7Q10 flow value was 

inappropriate and that Ohio EPA should have used the 145-cfs Army Corps' flow value 

instead. 
Nos. 156477, 786501, 156588, & 786589 41 

{~117} Notably, Appellants presented no evidence indicating that the resulting 

difference between equivalent TDS discharges using the 87-million-gpd 7Q10 figure, as 

compared to the 145-cfs Army Corps figure, would be significant. In fact, as indicated in 

its response to comments, Ohio EPA determined that the difference would be minimal. 

Moreover, based upon the equations introduced by Mr. Novak and Ms. Kniss, which 

Appellants did not challenge, the evidence demonstrated that even at only 100,000 gpd, 

the resulting TDS concentration increase in the Mahoning River could be as high as 

19%-significantly greater than the 10% TDS concentration increase Ohio EPA targeted 

pursuant to its evaluation of the factors listed in the anti-degradation rule. 

{~118} Thus, the Commission finds that Director possessed a valid factual 

foundation for targeting a potential TDS concentration increase of 10% and for using 

7Q10 as a factor in calculating such potential TDS concentration increases. Accordingly, 

the Commission finds that the Director acted lawfully and reasonably in imposing a 

100,000 gpd discharge limitation in Patriot's 2010 PTI. 

III. Requirement to Comply with Pretreatment Standards 

{~119} In Assignment of Error B, Patriot challenges the following term in its 

2010 PTI: 

Patriot Water Treatment LLC shall comply with all applicable U.S. EPA 

categorical pretreatment standards and local pretreatment regulations as 

they are adopted from time to time. 

Although no testimony was presented at hearing, Patriot's 2010 Notice of Appeal argues 

that the term at issue does not provide sufficient regulatory certainty. The Commission 

disagrees. 

{~120} The parties do not dispute that Patriot's 2010 PTI was issued pursuant to 

Ohio Adm.Code Chapter 3745-42, which provides in pertinent part: 
Nos. 156477,786501, 156588, & 786589 

(D) The director may impose such special terms and conditions as are 

appropriate or necessary to ensure compliance with the applicable laws 

and to ensure adequate protection of environmental quality. 

{11121} Ohio Adm.Code 3745-42-01 defines "applicable laws" as follows: 

(A) "Applicable laws" means any applicable provisions of Chapter 6111. of 

the Revised Code and rules promulgated thereunder, the federal water 

pollution control act (33 U.S.C. sections 1251 et seq., as amended through 

July 1, 2007) and 40 CFR Chapter I, subchapters D, N and 0 (effective 

July 1, 2008). 

42 

{1[122} Appellants do not dispute that Patriot, as an industrial user, is subject to 

pretreatment standards as set forth in the Federal Water Pollution Control Act, Chapter 

6111 of the Revised Code, and Chapter 3745-3 of the Ohio Administrative Code. Thus, 

the term at issue in Patriot's 2010 PTI is simply a term or condition designed to ensure 

compliance with "applicable laws" within the meaning of Ohio Adm.Code 3745-42-

04(D). 

{1[123} Accordingly, the Commission finds that the Director acted lawfully and 

reasonably in requiring Patriot to "comply with all applicable U.S. EPA categorical 

pretreatment standards and local pretreatment regulations as they are adopted from 

time to time." 

IV. Misleading Statement Accompanying Public Hearing 

{1[124} In Objection B, Appellants argue Ohio EPA's January 12, 2012 statement, 

released in conjunction with a public hearing scheduled for that same day, was 

misleading. Appellants assert this statement rendered the public notice and comment 

period for the 2012 NPDES Permit defective. 

{1[125} The statement read in pertinent part: 
Nos. 156477, 786501, 156588, & 786589 

Tonight's public hearing is the final information gathering step in the 

normal five-year renewal process for all NPDES permits. In addition to 

data from a science based study conducted in the Mahoning River from 

December 2010 until September 2011, Ohio EPA took into consideration 

the Clean Water Act, specific U.S. EPA requirements, Pennsylvania water 

quality standards and Ohio law when writing this proposed permit 

renewal. 

43 

{~126} The Director concedes Ohio EPA could not identify any particular 

"science based study," and the statement was a "poor choice of words." 

{~127} The Commission acknowledges that the statement at issue demonstrates 

a lack of attention to detail on the part of Ohio EPA. Nonetheless, Warren's 2012 NPDES 

Permit did not contain a specific TDS limitation. The 622 mg TDS/L restriction 

contained in the draft permit did not ultimately appear in the final version. Thus, to the 

extent that a "science based study" may or may not have existed, data obtained from a 

non-identified study did not have any impact on the challenged terms and conditions in 

Warren's final 2012 NPDES Permit. Appellants were, therefore, not prejudiced by the 

Ohio EPA's inaccurate statement. 

{~128} Accordingly, the Commission finds that Ohio EPA's January 12, 2012 

statement does not render the 2012 NPDES Permit unlawful or unreasonable. 

V. Draft vs. Proposed NPDES Permit 

{~129} Appellants' Objection A asserts that the Director acted unlawfully and 

unreasonably by issuing Warren's 2012 NPDES Permit as a "draft" rather than 

"proposed" action. As stated in its April 24, 2012 Ruling, the Commission disagrees and 

finds the Director's decision to issue the 2012 NPDES Permit as "draft" to be lawful. 

{~130} The issuance of "proposed actions" is governed by R.C. 3745.07, which 

states in pertinent part: 
Nos. 156477, 786501, 156588, & 786589 

Before issuing, denying, modifying, revoking, or renewing any permit, 

license, or variance under Chapter 3704., 3714., 3734., or 6111. of the 

Revised Code, the director of environmental protection may issue a 

proposed action to the applicant that indicates the director's intent with 

regard to the issuance, denial, modification, revocation, or renewal of the 

permit, license, or variance. * * * 

44 

(Emphasis added). Thus, under the plain language of the governing statute, the issuance 

of "proposed" actions is discretionary rather than mandatory. 

{~131} Further, although Appellants correctly observe that both the 

Memorandum of Agreement and the U.S. EPA memorandum regarding Warren 

reference a "proposed" permit, the documents neither define the term nor reference any 

provision of Ohio law. Appellants presented no evidence demonstrating that either the 

Memorandum of Agreement or U.S. EPA's memorandum regarding Warren's 2012 

NPDES Permit used the phrase "proposed permit" as defined in Ohio Adm.Code 3745-

47-03(M). Instead, it appears that both documents use the phrase in its more ordinary 

vernacular. 

{~132} In contrast, the phrase "proposed action" is specifically defined in the 

Ohio Administrative Code. The then-effective version of Ohio Adm.Code 3745-47-03(M) 

stated as follows: 2 4 

"Proposed action" means a written statement that gives the director's 

intention with respect to the issuance * * * of any permit * * *, and 

concerning which persons authorized by law or agency regulations may 

file comments or request an adjudication hearing or public meeting. 

(Emphasis added). 

{~133} Moreover, the Tenth District Court of Appeals previously held that 

neither state law nor the Federal Water Pollution Control Act require an adjudicatory 

24 A similar definition can now be found in Ohio Adm.Code 3745-47-02(P)(3) (effective date April 2, 

2012). 
Nos. 156477, 786501, 156588, & 786589 45 

hearing prior to the issuance of an NPDES permit. City of Lancaster v. McAvoy, 10th 

Dist. No. 79AP-260 (Oct. 25, 1979). The court stated: 

I d. 

While a determination ofthe Director's duties with regard to the holding 

of adjudication hearings before issuing final actions need not be reached in 

this appeal, the issue was briefed by the parties and, in the interest of 

judicial economy, we shall address the issue. The cities contend that three 

federal circuit courts of appeals have all interpreted the "public hearings" 

provision of the Federal Water Pollution Control Act (Section 402(a)(1)) to 

require a formal adjudication hearing prior to the issuance of a permit. 

The federal courts construed this provision within the context of the 

federal procedure for issuing permits, which does not provide for a de 

novo hearing at a second administrative level [such as ERAC]. 

Accordingly, we do not find the federal decision persuasive. 

Under the procedures employed in this case, the cities were afforded an 

opportunity to make written comments or request a public meeting prior 

to the issuance of the final permits, and have an opportunity for a full de 

novo hearing before [ERAC] if they so desire. We find that this procedure 

is consistent with due process, federal requirements, and R.C. 3745.07. 

{'l]134} Thus, pursuant to R.C. 3745.07, the Commission finds the Director acted 

within his discretion in issuing Warren's 2012 NPDES Permit as a "draft action." 

Accordingly, the Commission finds that he acted lawfully and reasonably when issuing 

the 2012 NPDES Permit as "draft" rather than as "proposed." 

VI. Part II, Section BB ofWarren's 2012 NPDES Permit 

{'ll135} In Objections C and D, Appellants challenge Section BB of Warren's 2012 

NPDES Permit. Section BB provides as follows: 

Beginning on the effective date of this permit, the permittee shall stop 

accepting brine wastewater from oil or gas drilling, exploration or 

production. Disposal of brine wastewater from oil or gas drilling, 

exploration or production through a wastewater treatment plant and 

discharge to the waters of the state is not an authorized method of disposal 

under R.C. 1509.22(C)(1) unless and until it is approved by the Chief of the 

Division of Oil and Gas Resources Management for testing or 

implementing a new technology or method of disposal. If such approval is 

granted under R.C. 1509.22(C)(1) by the Chief of the Division of Oil and 
Nos. 156477, 786501, 156588, & 786589 

Gas Resources Management, the permittee must submit an NPDES Permit 

Modification application to Ohio EPA for approval prior to acceptance of 

brine wastewater. The permittee may not accept brine wastewater from oil 

or gas drilling, exploration or production until after an NPDES Permit 

Modification authorizing acceptance of the material is approved. 

{~136} Appellants argue that Section BB exceeds the scope of Director's authority 

under Ohio's NPDES permitting scheme. 

{~137} The Director counters that Section BB of Warren's 2012 NPDES Permit 

does not prohibit the acceptance of brine wastewater, and thus should not be analyzed 

as a substantive provision of the permit. Instead, the Director argues that Section BB 

merely informs Warren of its existing obligations under Ohio law. The Director also 

argues that even if the term does create an affirmative prohibition, it is permissible 

under Ohio Adm.Code 3745-33-04(A)(3) and Ohio Adm.Code 3745-33-07(A) because 

the term is both necessary to "ensure compliance" with R.C. 1509.22 and necessary to 

ensure protection of water quality. 

{~138} The Commission will first address the Director's argument that Section 

BB does not constitute an affirmative prohibition of the acceptance of brine wastewater. 

The Director argues that because Section BB does not affirmatively prohibit acceptance 

of brine wastewater, it need not be analyzed as a substantive provision of the permit. 

{~139} The Commission disagrees with the Director's characterization of Section 

BB and finds that this provision does affirmatively prohibit Warren's acceptance of 

brine wastewater. 

{~140} First, the language "shall stop accepting" explicitly requires Warren to 

take an affirmative action, namely, stop accepting brine wastewater. On behalf of the 
Nos. 156477, 786501, 156588, & 786589 47 

Director, Mr. Blasick testified that Section BB is enforceable to the extent that Ohio EPA 

could seek an enforcement action based on a violation of Section BB. 2 5 

{~141} Significantly, if Warren wishes to resume acceptance of brine wastewater, 

it must demonstrate to Ohio EPA compliance with R.C. 1509.22. Specifically, as set out 

in Section BB, prior to accepting brine wastewater, Warren must submit an NPDES 

modification application demonstrating that ODNR's Chief of the Division of Oil and 

Gas Resources Management has approved this method of disposal. 

{~142} Ohio EPA asserts that it is common practice to include references to 

provisions of local, state, and federal laws not under its jurisdiction, but that are related 

to the permit at issue. For example, Part III, Section 24 of Warren's 2012 NPDES Permit 

provides as follows: 

Nothing in this permit shall * * * relieve the permittee from any 

responsibilities, liabilities, or penalties established pursuant to any 

applicable state law or regulation under authority preserved by Section 510 

of the Clean Water Act. 

{~143} The Commission notes, however, that unlike Section BB, the above term 

is an example of a simple, boilerplate term generally informing a permittee of its duty to 

comply with other applicable laws. It is, therefore, distinguishable from Section BB in 

that Section BB imposes an affirmative obligation to demonstrate compliance with R.C. 

{~144} Because Section BB imposes an affirmative obligation on Warren, and 

because it subjects Warren to potential Ohio EPA enforcement actions that would have 

been otherwise unavailable to Ohio EPA had the provision been omitted, the 

'5 Also, it remains unclear whether Ohio EPA believed ODNR would possess concurrent jurisdiction 

and could pursue an enforcement action under R.C. 1509.22 
Nos. 156477,786501, 156588, & 786589 

Commission finds that Section BB affirmatively prohibits the acceptance of brine 

wastewater. Therefore, Section BB must be analyzed as a substantive provision in 

Warren's 2012 NPDES Permit. 

{~145} The Commission will now turn to the question of whether the Director 

had the legal authority to include Section BB in Warren's 2012 NPDES Permit. 

{~146} The Director relies on two provisions of the Administrative Code as the 

legal basis for the Director's authority to include Section BB in Warren's 2012 NPDES 

Permit, Ohio Adm.Code 3745-33-o4CA)(3) and 3745-33-07(A). 

{~147} Ohio Administrative Code 3745-33-04(A)(3) governs the relationship 

between Ohio's NPDES permitting scheme and other applicable laws. The provision 

states as follows: 

Possession of an Ohio NPDES permit shall not relieve any person of the 

responsibility to comply with the authorized discharge levels specified in 

the permit or other provisions of applicable law. 

{~148} Ohio Administrative Code 3745-33-07(A) grants the Director the 

authority to impose certain additional terms and conditions in NPDES permits not 

specifically enumerated elsewhere. The provision provides as follows: 

(A) * * * The director may impose additional terms and conditions as part 

of an NPDES permit as are appropriate or necessary to ensure compliance 

with the applicable laws and to ensure adequate protection of water 

quality. 

(Emphasis added). 

{~149} The Director argues that Section BB is lawful under either or both of these 

provisions because it is necessary to ensure compliance with R.C. 1509.22, a provision 

the Director deemed an "applicable law." Alternatively, the Director argues that Section 
Nos. 156477, 786501, 156588, & 786589 49 

BB is authorized under Ohio Adm.Code 3745-33-07(A) because it is "ancillary" to the 

protection of water quality. The Commission disagrees. 

{~150} First, with respect to Section BB being necessary to ensure compliance 

with R.C. 1509.22, the Commission finds that Ohio Administrative Code 3745-33-

04(A)(3) does not authorize the Director to impose restrictions in NPDES permits 

beyond the scope of Ohio EPA's regulatory authority. Instead, Ohio Adm.Code 3745-33-

04(A)(3) simply notes that other laws and regulations may be applicable to the 

permittee and possession of an NPDES permit does not affect the permittee's duty to 

comply with those other laws and regulations. 

{~151} Similarly, Ohio Adm.Code 3745-33-07(A) also does not provide a legal 

basis for the Director to enforce R.C. 1509.22. Although this provision authorizes the 

Director to impose additional terms and conditions necessary or appropriate to ensure 

compliance with "applicable laws," it is well-settled that an administrative agency's 

regulations cannot expand upon the statutory authority under which they are 

promulgated. Odita v. Ohio Dept. of Human Serv, 88 Ohio App.3d 82 (1oth Dist. 1993) 

("an administrative agency can only exercise those powers conferred upon it by the 

Constitution or the statute which created it or vested it with power"). Therefore, the 

term "applicable laws" cannot be interpreted such that Ohio Adm.Code 3745-33-07(A) 

would expand the scope of the Director's authority under R.C. 6111.03-the statute 

pursuant to which he promulgated the rule.26 

•• Ohio Admistrative Code 3745-42-01 specifically defines "applicable laws" as "any applicable 

provisions of Chapter 6111. of the Revised Code and rules promulgated thereunder, the federal water 

pollution control act ( 33 U.S.C. sections 1251 et seq., as amended through July 1, 2007) and 40 CFR 

Chapter I, subchapters D, N and 0 (effective July 1, 2008)." Although Ohio Adm.Code 3745-42-01 is not 

directly applicable to Ohio Adm.Code Chapter 3745-33 of the Administrative Code, the Commission notes 
Nos. 156477, 786501, 156588, & 786589 50 

{'11152} Revised Code 6111.03(A) outlines the overall purpose of Ohio's Clean 

Water Act. It authorizes the Director to develop plans and programs "for the prevention, 

control, and abatement of new or existing pollution of the waters of the state." 

{'11153} Further, R.C. 6111.03(J) describes the scope of the Director's authority to 

issue NPDES permits: 

The director of environmental protection may* * *: 

*** 

(J)(1) Issue, revoke, modify, or deny * * * permits for the discharge of 

sewage, industrial waste, or other wastes into the waters of the state * * *. 

Any permit terms and conditions set by the director shall be designed to 

achieve and maintain full compliance with the national effluent 

limitations, national standards of performance for new sources, and 

national toxic and pretreatment effluent standards set under that act***. 

*** 

(3) To achieve and maintain applicable standards of quality for the 

waters of the state * * *, the director shall impose, where necessary and 

appropriate, as conditions of each permit, water quality related effluent 

limitations * * *. 

(Emphasis added). 

{'11154} And finally, R.C. 6111.03(Q) outlines the scope of the Director's authority 

to approve POTW pretreatment programs: 

The director of environmental protection may * * *: 

(Q) Administer and enforce the publicly owned treatment works 

pretreatment program * * *. In the administration of that program, the 

director may do any of the following: 

*** 

that its definition reflects the well-established notion that an administrative agency may not enact rules 

that expand upon tbe statutory authority under which those rules were promulgated. 
Nos. 156477, 786501, 156588, & 786589 

(2) Approve and deny requests for approval of publicly owned treatment 

works pretreatment programs * * * 

*** 

Any approval of a publicly owned treatment works pretreatment program 

may contain any terms and conditions, including schedules of compliance, 

that are necessary to achieve compliance with this chapter. 

(Emphasis added). 

51 

{~155} Thus, under the applicable provisions of R.C. 6111.03, the unambiguous 

purpose of the NPDES permit program, the POTW pretreatment program, and indeed 

the entirety of Ohio's Clean Water Act is to prevent, control, and reduce water pollution. 

Accordingly, when interpreting Ohio Adm.Code 3745-33-07(A), the Director's authority 

to impose terms and conditions necessary to ensure compliance with "applicable laws" 

must be limited to those laws and regulations that fall within the scope of Chapter 6111. 

In other words, the Director's authority to ensure compliance with "applicable laws" is 

limited to those "applicable laws" that serve the purpose of protecting water quality. To 

hold otherwise would be to allow the Director to use the rulemaking and permitting 

processes to impermissibly expand upon his statutory authority. 2 7 

{~156} Revised Code Chapter 1509 does not expressly fall within the scope of 

Chapter 6111, and no testimony was presented indicating that R.C. Chapter 1509 

'7 The Commission notes that Senate Bill 315, effective September 10, 2012, modifies R.C. 1509.02 

to include the following language. 

• • • In order to assist the division in the furtherance of its sole and exclusive authority as 

established in this section, the chief may enter into cooperative agreements with other 

state agencies for advice and consultation, including visitations at the surface location of 

a well on behalf of the division. Such cooperative agreements do not confer on other 

state agencies any authority to administer or enforce this chapter and rules adopted 

under it. In addition, such cooperative agreements shall not be construed to dilute or 

diminish the division's sole and exclusive authority as established in this section. • • • 

(Emphasis added). Thus, the bill acknowledges the well-established rule that one administrative agency 

may not, unless otherwise provided for by statute, enforce the rules and regulations of another. 
Nos. 156477, 786501, 156588, & 786589 52 

otherwise served as an integral component of R.C. Chapter 61n's implementation of the 

Clean Water Act. 2B Therefore, the Commission finds that, to the extent Section BB seeks 

to "ensure compliance" with R.C. 1509.22, the Director acted unlawfully. 

{~157} Notwithstanding his argument that Ohio EPA was required to ensure 

compliance with R.C. Chapter 1509, the Director also argues that inclusion of Section 

BB was lawful and reasonable under his authority to protect water quality, which is 

within the scope of R.C. Chapter 6111 and authorized under Ohio Adm.Code 3745-33-

07(A). 

{~158} On behalf of the Director, Mr. Hall provided testimony that Ohio EPA 

included Section BB in Warren's 2012 NPDES Permit because it was "ancillary" to the 

protection of water quality. Specifically, Mr. Hall explained that the term was included 

in response to concerns regarding TDS in brine wastewater derived from oil and gas 

operations,29 Mr. Hall opined that ODNR could theoretically approve Warren to dispose 

of brine at high concentrations of TDS, and that in such a scenario, the discharge could 

jeopardize Warren's WWTP or water quality in the Mahoning River. 

{~159} Significantly, the Commission has previously held that the Agency must 

be able to establish a valid factual foundation for the correlation between an operational 

restriction and that restriction's ultimate goal. E.g., General Electric Lighting v. Jones, 

ERAC No. 185017 (March 1, 2005), citing Dayton Power & Lighting Co. v. Jones, ERAC 

No. 574950 (Aug. 21, 2003). 

2s In fact, NPDES permits rarely, if ever, included terms that even cross-reference statutes outside of 

Chapter 6111. Testimony Stuhlfauth. 

29 Mr. Hall's argument is undercut by the fact that in the various dispositive motions filed with the 

Commission prior to the hearing, the Director consistently argued that the mere existence of R.C. 1509.22 

necessitated inclusion of Section BB, independent of any impact on water quality. E.g., ERAC Nos. 156477 

& 786501, Case File Items FF, XXX, and MMMMMM. 
Nos. 156477, 786501, 156588, & 786589 53 

{~160} For example, in General Electric Lighting, the permit at issue imposed 

operational restrictions on the "secondary voltage (V) and current (milliamps) recorded 

at each transformer set within the [electrostatic precipitator] ESP***." Id. at FOF '117. 

Ohio EPA noted that the voltage and current restrictions contained in the permit 

reflected the conditions present during a required stack test. I d. at FOF ~19. Thus, Ohio 

EPA argued that the restrictions on voltage and current served the purpose of ensuring 

compliance with emissions limitations by requiring that the ESP be operated under 

"normal" conditions. Id. The Commission, however, rejected this contention, finding 

that "the data demonstrate[d] that no direct correlation exists between the required 

parameters, in this instance kilovolts, milliamps and emissions, and assuring 

compliance." I d. at COL ~17. 

{~161} Here, as in General Electric Lighting, the Commission finds that the 

evidence fails to establish the correlation between Section BB and the stated purpose of 

the restriction, namely, protecting water quality. Indeed, Section BB does not expressly 

limit TDS at all. Rather, it simply requires ODNR approval for a particular disposal 

method. Just as Mr. Hall explained, the term does not limit ODNR's ability to approve 

of brine disposal at any concentration. 

{~162} Moreover, testimony supports that other terms and conditions within the 

Director's authority to include in NPDES permits can be used to directly limit TDS. For 

example, Warren's 2010 NPDES permit contained terms limiting the acceptance of 

brine from Patriot to a maximum of 100,000 gpd at so,ooo mg TDS/1. These 

limitations worked together to restrict the total TDS entering Warren's WWTP. 

{~163} Although the Commission grants deference to the Director's factual 

determinations, the nexus between a given permit term and the desired result must be 
Nos. 156477, 786501, 156588, & 786589 54 

based on a valid factual foundation. General Electric Lighting, at COL ~17. Here, the 

Commission finds that no valid factual foundation exists to establish the correlation 

between the restriction imposed by Section BB and the goal of reducing TDS or 

protecting water quality. Instead, the evidence established that Section BB was included 

for the primary purpose of ensuring compliance with R.C. 1509.22,3° a statute outside of 

Chapter 6111 and over which the Director has no jurisdiction. 

{~164} Accordingly, for the foregoing reasons, the Commission finds that the 

Director acted unlawfully and unreasonably by including Section BB in Warren's 2012 

NPDES Permit. 

{~165} The Commission notes that it makes no determination as to the 

applicability of R.C. 1509.22 to Warren or to Patriot. Further, the Commission makes no 

determination regarding whether Patriot or Warren engage in the disposal of brine. 

Likewise, the Commission also makes no determination as to whether ODNR 

"approved" of the Warren/Patriot method of disposal. 

{~166} The Commission emphasizes that this Decision does not relieve Patriot or 

Warren of their independent obligations to comply with applicable laws. The 

Commission simply holds that Director exceeded his authority by including Section BB 

in Warren's 2012 NPDES Permit. 

3° Note 29, supra. 
Nos. 156477, 786501, 156588, & 786589 55 

FINAL ORDER 

{~167} For the foregoing reasons, the Commission hereby AFFIRMS Patriot's 

PTI 748163. 

{~168} Further, the Commission finds Part II, Section BB of Warren's 2012 

NPDES Permit unlawful, and hereby MODIFIES, pursuant to R.C. 3745.05(F), Warren's 

NPDES 3PEoooo8*ND by removing Part II, Section BB therefrom. The Commission 

AFFIRMS Warren's NPDES 3PEoooo8*ND in all other respects. 

{~169} The Commission, in accordance with Ohio Adm.Code 3746-13-01, 

informs the parties that: 

Any party adversely affected by an order of the commission may appeal to 

the court of appeals of Franklin County, or, if the appeal arises from an 

alleged violation of a law or regulation, to the court of appeals of the 

district in which the violation was alleged to have occurred. The party so 

appealing shall file with the commission a notice of appeal designating the 

order from which an appeal is being taken. A copy of such notice shall also 

be filed by the appellant with the court, and a copy shall be sent by 

certified mail to the director or other statutory agency. Such notices shall 

be filed and mailed within thirty days after the date upon which appellant 

received notice from the commission of the issuance of the order. No 

appeal bond shall be required to make an appeal effective. 

Entered into the Joun;al of the 

Commission this J~ day 

of July 2012. 

The Environmental Review 

Appeals Commission 
Nos. 156477, 786501, 156588, & 786589 

Copies Sent to: 

PATRIOT WATER TREATMENT, LLC 

CITY OF WARREN 

CHRIS KORLESKI, Director 

SCOTT NALLY, Director 

April R. Bott 

Sarah L. Herbert 

MacDonald W. Taylor 

Summer J. Koladin Plantz 

Janean R. Weber 

Christine L. Rideout 

[Certified Mail] 

[Certified Mail] 

[Certified Mail] 

[Certified Mail] 

s6 
Nos. 156477, 786501, 156588, 786589 

CERTIFICATION 

I hereby certify that the foregoing is a true and accurate copy of the DECISION in 

Patriot Water Treatment LLC. and City of Warren. Ohio v. Chris Korleski. 

Director of Environmental Protection, Case Nos. ERAC 156477, 786501, 156588, 

786589 entered into the Journal of the Commission this grd day of July, 2012. 

J ie A. Slane, Executive Secretary 

(d 

Dated this~ day of 

July 2012, at Columbus, Ohio.