BEFORETHEENVIRONMENTAL REVIEWAPPEALS COMMISSION STATE OF OHIO PATRIOTWATERTREATMENT, LLC ERAC No. 156477 ERAC No. 156588 and CITY OFWARREN ERAC No. 786501 ERAC No. 786589 Appellants, V. CHRIS KORLESKI, DIRECTOR OF ENVIRONMENTAL PROTECTION and SCOTT NALLY, DIRECTOROF ENVIRONMENTAL PROTECTION Appellees. DECISION RenderedonJuly 3, 2012 

### April R. 

### Batt, Sarah L. 

### Herbert, and

### MacDonald W. Taylor for Appellants Patriot Water Treatment, LLC and City of Warren 

### SummerJ. 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") opposingfinal actionsbyAppellees Chris Korleski, DirectorofNos. 156477, 786501, 156588, & 786589 2 the Ohio Environmental Protection Agency from 2007 through 2010, and Scott Nally, Director ofthe Ohio Environmental Protection Agency since 2011 ("Director" or "Ohio EPA"). Appellants challenge the Director's August 10, 2010 issuance ofPatriot'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 ofWarren's NPDES 3PEoooo8*ND ("2012 NPDES Permit").

**{~2}** Following issuance of the 2012 NPDES Permit, the Director filed a Motion to Dismiss the appeals ofthe 2010 PTI and the 2010 NPDES Modification. The Director argued thatthe 2012 NPDES Permit renderedboth the 2010 PTI andthe 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 inall otherrespects? 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 ofcounsel, the Commission deniedAppellants' Motion to Strike. ERAC Nos. 156477 & 786501, Case File Items 

### QQQQQQ andTl 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 ofappeal to include assignments oferror related to tbe 2012 NPDES Permit. Nonetheless, issuance ofthe 2012 NPDES Permit rendered the 2010 NPDES Modification moot. Therefore, the Commission dismissed tbose assignments oferrorthat 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 BandC. ' 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 reliefcould be granted if the Commission ultimately concluded that Section BB ofWarren's 2012 NPDES Permit was unlawful or unreasonable. ERAC Nos. 156477 & 786501, Case File Item EEEEEE.Nos. 156477, 786501, 156588, & 786589 

### 3 {'114} The Commissionheld a four-day de novo hearing onthe remainingissues relating to Patriot's 2010 PTI andWarren's 2012 NPDES Permit from April 24 to April 26, 2012, andconcludedonMay 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 ofLaw, and Final Order AFFIRMING Patriot's 2010 PTI andMODIFYING Warren's 2012NPDES Permitby strikingPartII, 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, thenhorizontally along thelengthof the shale formation. Liquid, called "drilling liquid" or "drilling mud," is commonly used
to assist in this drilling process. OHIO ENVIRONMENTAL PROTECTIONAGENCY, 

### Drillingfor Natural Gas in 

### the Marcellus & 

### Utica Shales: Environmental Regulatory Basics, http:/ jwww.epa.ohio.govjshale.aspx (lastvisited May 4, 2012).

{'117} After drilling thewell, the driller creates perforations along thehorizontal portionofthewell, andthen pumpshighpressure "fracturingfluid" containing sandand otherchemicalsintothewell, opening small cracks intheshaleformation. 

### I d.

None ofthe parties moved the Certified Records into evidence.Nos. 156477, 786501, 156588, & 786589 4 {'118} After the fracturing process, the natural pressure ofthe shale formation forces some ofthe fracturing liquid back to the surface. Once it returns to the surface, this liquidis known as "flowbackwater."

### I d. {'119} Flowback water can vary greatly in composition. Specifically, testimony established that initial flowback 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.; TestimonyBlocksom. {'1\10} Patriot operates a "brine wastewater treatment system"4 located at 2840 SferraAvenue NW, Warren, Ohio, Trumbull County. Patriot accepts "low-salinity"brine wastewater from shale gas extraction activities. Ittreatsthe wastewatertoremove heavy metals and other constituents before the treated wastewater is sent to Warren's wastewater treatment plant ("WWTP"). The treated wastewaterisultimately discharged intothe 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. SeeAppellants 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 mustbe "pretreated" before entering the WWTP. Industrial users, such as Patriot, are therefore required to obtain PTis, as well as comply with federal, state, andlocal pretreatmentstandards. Testimony Kniss.

**{~12}** Patriot appealed its 2010 PTI on September 10, 2010. During the pendency ofPatriot's appeal ofthe 2010 PTI, the Directorissued a second PTI to Patriot
on March 19, 2012, for the "removal and replacement ofsix 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 ownedtreatmentworks pretreatmentprograms are createdto
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 ofa POTW. POTWs also consist ofpump stations and othercomponents. 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 ItemA. {'IllS} Warren appealed its 2010 NPDES Modification on December 29, 2010. During the pendency ofWarren's appeal ofthe 2010 NPDES Modification, the Director issued the 2012 NPDES Permit. Part II, Section BB ("Section BB") ofWarren'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 Chiefofthe Division ofOil and Gas Resources Management" and "until after an NPDES Permit Modification authorizing acceptance ofthe material is approved." On March 22, 2012, both Patriot andWarren filed objections to the 2012 NPDES Permit. ERAC. Nos. 156588 & 786589, Case File Item A. 

### II. 2010 

### PTI andNPDES Issuances {'1116} Patriot and Warren first approached Ohio EPA to inquire about the possibility ofdischarging brine wastewater through Warren's WWTP in early 2009. By April 2009, Ohio EPA hadbegun 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 ofher initial review ofPatriot's PTI application, Donna Kniss, Environmental Specialist 2 with Ohio EPA's Division of Surface Water Management ("DSWM"), reviewed the following provision containedin 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 ofenhanced recovery 

### * * *; orby other methods approved by the chieffor 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 conflictedwith activities Patriotproposedin its PTI application. An April 27, 2009 email from Ms. Kniss summarized Ohio EPA's evaluation ofR.C. 1509.22. The email states in pertinentpartasfollows: The Ohio EPA Division of Surface Water has contacted the Ohio Department ofNatural 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 EPAwill not authorizethe installation ofthese wastewatertreatmentunits. Appellants Ex.

## so. {1118} Shortly thereafter, however, ODNR came to a decision regarding the interactionbetweentheNPDES permitprogram andR.C. 1509.22(C). 

### AnApril29, 2009 email from Brian Hall, of Ohio EPA, to Rich Blasick, also of Ohio EPA, summarized Ohio EPA's discussionswith ODNR, statinginpertinentpart: Scott [Kell, of ODNR] clearly stated that taking brine to POTW/CWT is clearly under Ohio EPAjurisdiction anditwould leave itup to [Ohio EPA] to determineifa treatment system could meetWQS. * * * ERAC Nos. 156477 & 786501, Case File ItemXXX. {1119} Similarly, an email sent on July 21, 2009 from Scott Kell, of ODNR, to John Husted, also ofODNR, statedinpertinentpartas follows: [Patriot's] proposal would be permitted and regulated by OEPA. We [ODNR] would nothave approval, inspection, orenforcementauthority. 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 ofthe potential impact ofPatriot's discharge on water quality. Following Patriot's submission ofits PTI application, Ohio EPA requested that Patriot and Warren provide more information and data regarding the disposal of brine wastewaterthrough aWWTP. In response, Appellants proposedto 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 ofthebrine wastewater Patriot proposed to accept and treat. Tom Angelo, Director of the Warren WWTP, explained that the purpose ofthe WET test was to determine the point at which brine wastewater would begin to cause the death ofcertain indicator species6

### -in other words, to determine "how much brine water could actually come through the plantbefore 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 ofthe biological community to be protected. See Testimony Kniss.
7 LCso refers to the concentration requiredto kill halfofthetestedpopulation.
s LC10o refers tothe concentrationrequiredto kill all ofthe tested population.

### Nos. 156477,786501, 156588, & 786589 9 

### fleas and fathead minnows. The test used effluent from Warren's WWTP to create various dilutions ofbrine wastewater. DirectorEx. G; Testimony Kniss, Angelo.

**{~23}** 

### Based on observed mortality data at these varying concentrations, EnviroScience concluded thatthe 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. DirectorEx. 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. 

### DirectorEx. G; TestimonyAngelo, Kniss.

**{~25}** 

### In response, Ohio EPA advised Warren thattheWET testwas 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 ofTDS and other pollutants can vary greatly from one brine to another in the oil and gas industry, andtherefore, Ohio EPArequired datato ensurethatthetest sample brine was representative ofthe 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 resultingfrom long-term exposure to a substance, often atcomparativelylowlevels. 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 brinewastewaterfrom 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 thethirdweek, 6o,ooo gallons ofbrine wouldbe dischargedduring 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 ofthe 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 ofWarren'sWWTP. Warren measured conductivity, TDS, andchloride levels from each sampletaken. In addition, Warren conductedfurthertoxicitytesting on waterfleas andfathead minnows. Appellants Ex. 19.

**{~28}** Warren's summaryofthepilot study concludedthefollowing: The 8 week Pilot Study demonstrated that a controlled discharge ofbrine 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 limitthatcan occurin mid-summer at 3:0oam.Nos. 156477, 786501, 156588, & 786589 Warren shouldbe 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 determinefinal ceiling concentration. Appellants 

### Ex. 19. 11

**{~29}** Following the pilot study, Warren submitted an NPDES modification applicationto Ohio EPA onJune 9, 2010. Director Ex. D.

**{~30}** Ohio EPA conducted aninternal review ofboth 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 oferror: 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 higherthan 100,000gpd 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 isbothunreasonable andunlawful. B. PTI 748163 requires Patriot to comply with U.S. EPA categorical pretreatment standards andlocal pretreatmentregulations "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 andunlawful. ERAC No. 156477,Case File ItemA.

**{~31}** Patriot's two assignments oferror relate tothe following terms contained in its 2010PTI: No more than 100,000 gallons per day (gpd) may be discharged into the City ofWarren sewer system unless prior approval is obtained from the Ohio Environmental ProtectionAgency andthe City ofWarren.

" Patriotsubmitted a modified PTI application onJanuaryn, 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 adoptedfrom timetotime. ERAC No. 156477, Case File ItemA. 12

**{~32}** After the Director's issuance of Warren's 2010 NPDES Modification in December 2010, Warren timely appealed to this Commission settingforth the following three assignments oferror: A. The NPDES Modification, Part I, C.3. limits the amount ofwastewater 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 andunlawful. B. The NPDES Modification, Part I, C.3 unreasonably andunlawfully 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 lawfuljustification 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 andunlawful. 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 andunlawful. 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 dischargedtothe collection system. ERAC No. 786501, Case File ItemA. III. TheDirector's "DeterminationofUnlawfulPermitIssuance" 13

{1134} On May 16, 2011, Director Nally sent a letter to David Mustine, then Director ofODNR. The letter statedinfull: Dear DirectorMustine: 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 adoptedby ODNRunderthis 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 anundergroundformation; • road surface application (excluding flow back, drilling and treatmentfluids); • use in association with a method ofenhancedrecovery; or • by other methods approved by the ODNR, Chief of Mineral Resources Management for testing or implementing a new technology ormethod ofdisposal. 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 authorityto allow for discharges to surface waters either directly orvia a POTW. As you know, the City ofWarren is currently accepting low salinity brine from oiljgas operations (under so,ooo mg/1). Other POTWs have expressed a similar interestbutthose have notbeen approved. In ordertoNos. 156477, 786501, 156588, & 786589 implement this direction, it is my intention, as Director of Ohio EPA, to not reauthorize the City ofWarren 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 oftheinterplaybetween R.C. Chapter 6111, which governs Ohio's NPDES program and is regulated by Ohio EPA, and R.C. Chapter 1509, which governs oil andgas operations andthatthe Director acknowledges is regulated by ODNR. Significantly, no testimony was presented establishing any change in Ohio EPA's evaluation ofthe 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 ofUnlawful 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 itNos. 156477, 786501, 156588, & 786589 15

was unclear whether ERAC hadjurisdictionto grantthe Director's Request, and even if it did, the Director had not properly supported his Motion with admissible evidence substantiating several materialfacts. ERAC Nos. 156477 & 786501, Case File Item FFF.

**{~38}** On February 13, 2012, the Director moved for summaryjudgment 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 unlawfulbecausetheyviolated R.C. 1509.22. Unlike his November 1, 2011 Request, however, the Director supportedhis February 13, 2012 motion with affidavits from Ohio EPA andODNRemployees. ERAC Nos. 156477 & 786501, Case File ItemXXX. n39} The Commission deniedthe Director's Motion for SummaryJudgment on March 20, 2012. Inits ruling, the Commissionfound thatby 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. Issuanceofthe 2012NPDESPermit

**{~40}** In the midst ofthe 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 notedthatpursuantto R.C. 6111.03(J)(7), OhioAdm.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 beenviolated. ERAC Nos. 156477 & 786501, Case File ItemCCCCC. '" 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 "methodofdisposal" as usedNos. 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 ofthe 100,000gpdlimit contained in the 2010 NPDES Modification, Warren requested a loading-based TDS limit of 1,180,073 poundsperday. 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 ofbrine wastewater through a WWTP as setforth 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 of622 mg/L, and (2) a monthly loading limit of37,700 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, theTrumbull CountyCourt ofCommon Pleas dismissed Patriot andWarren's declaratory action, finding thatexclusivejurisdictionvested with ERAC becauseAppellants' 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-daymonth, this figure is the approximate equivalent of2,770 lbs per day, or roughly 0.23% ofthe 1,180,073 lbs per day Warren had requested in itsNPDES renewal application.Nos. 156477, 786501, 156588, & 786589 17 disposal ofbrine wastewater through a WWTP until thatmethod ofdisposal 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 approvedby 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}** Priortothepublichearing, theAgency releasedthefollowing 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 datafrom 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 ofwords." Mr. Stuhlfauth concluded that the statement was "probably referring to the work that [Ohio EPA] did in support ofNos. 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 ofthe renewal." Because the statement was released the day ofthe 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 ofbrine wastewater in Section BB ofthe final 2012 NPDES Permit as follows: BB. Beginning onthe effective date ofthis 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 ofthe state is not an authorized method of disposal underR.C. 1509.22(C)(1) unless anduntilitis approvedbytheChiefofthe Division of Oil and Gas Resources Management for testing or implementing a newtechnology ormethod ofdisposal. 

### Ifsuch an approval is grantedunder R.C. 1509.22(C)(1) by the Chiefofthe Division ofOil and Gas Resources Management,thepermittee must submit anNPDES Permit Modification application to Ohio EPA for approval prior to acceptance of brine wastewater. The permittee may not accept brinewastewaterfrom oil or gas drilling, exploration or production until after an NPDES Permit Modification authorizing acceptance ofthematerial is approved. ERAC No. 786589, Case File ItemA.

V. Appellants' ObjectionsandtheDirector'sMotiontoDismiss

**{~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 thatthe 2012 NPDES Permit superseded the 2010 NPDES Modification, thereby rendering the 2010 NPDES Modification moot. The Director further argued that because Warren's 2012Nos. 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 andWarren each filed Objections toWarren'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 ItemsA, B, andC. {'1151} Both Patriot andWarren presented the same four objections toWarren'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 thatmisledthepublic. C. The Director's issuance ofSection II.BB ofthe NPDES Renewal Permit exceeds the Director's authority. D. The Director's issuance ofSection II.BB ofthe NPDES Renewal Permit is unreasonable andunlawful. ERAC Nos. 156477 & 786501, Case File Items FFFFF andGGGGG. {'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. 156477 & 786501, Case File Item EEEEE. >6 Both Objections stated, " • • • this document should also serve as [Patriot/Warren's] protective Notice ofAppeal 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 oferror challenging Warren's 2010 NPDES Modification. The Commission also deniedthe Director's Motion with respect to Patriot's 2010 PTI, finding that meaningful reliefcouldbe granted ifthe 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'sMotionforPartial SummaryJudgment {1153} On April 13, 2012, the Director filed a Motion for Partial Summary Judgment on the following three issues: "(1) Appellants treat and dispose ofbrine; (2) the Chief ofthe Ohio Department of Natural Resources ('ODNR') Division of Oil and Gas Management, orhis predecessor, the ChiefofODNR Division ofMineral 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 ofPermit Issuance, the Commission addressed each ofAppellants' 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 ofObjection Ais includedbelow. ERAC Nos. 156477 & 786501, Case File Item 

### YYYYYY.Nos. 156477, 786501, 156588, & 786589 21 VII. Appellants'AssignmentsofErrorand/orObjections

**{~55}** The Commission will now address each of Appellants' Assignments of Error and/or Objections. A. 100,000gpdDischargeLimitation

**{~56}** Appellants argue thatthe 100,000 gpd discharge limitation contained in Patriot's 2010 PTI is unlawful andunreasonablefor two reasons: (1) the Director should have set a "loading-based" ratherthan "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-degradationrule.

**{~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 relatedas follows: Concentration(mass; ) x Flow(volj . ) 

### = Loading(mass; . ) vol ttme ttmeNos. 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.'sTestimony Blasick. {1159} Appellants do not dispute that a conductivity monitor is required to comply with a "loading-based" discharge limitation andthatPatriotdid notinclude 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 explainedthattheAgency set a maximum discharge limitation of 100,000 gpdto ensure that the potential increase in TDS concentration in the Mahoning River was not "significant." 19 Mr. Novak explained that, pursuantto 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 EPAcould successfullyimpose a loading-baseddischargelimitation. Testimony Blasick. '• Mr. Novak explained that he also considered possible biological inhibition atthe 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. TestimonyNovak.Nos. 156477, 786501, 156588, & 786589 

### 23 concentration in Patriot's effluent, (2) the discharge rate from Patriot to Warren's WWTP, (3) theflow inthe Mahoning River, and (4) theflow from Warren's POTW.2o Testimony Novak; Director Ex. XandY.

**{~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 backgroundTDS concentration in the Mahoning River of307mg TDS/1, Mr. Novak calculated that this 51 mg TDS/1 increase represented an approximately 17% increase in TDS levels inthe Mahoning River. TestimonyNovak.

**{~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. Novaktestified that he usedthefollowing equations: TDS concentration x Daily Discharge =Daily TDS loading

__ _____: 0 ::":::oily,_T:..: 0 c::. 5::::.

10:::"d:::in,_g ___=Increase in TDS concentration FlowMahoning River+Flowwarren WWTP TestimonyNovak; DirectorExs. X andY. " Specifically, Ms. Kniss testifiedthat sheused thefollowing equations: TDS concentration x Daily Discharge= Daily TDS loading Dally TDS loading FloWMahoning River+DischargePatriot Increase in TDS concentration TestimonyKniss; DirectorEx. 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 calculationsyielded similarresultswith respectto a 100,000gpddischarge. 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. DirectorExs. V, X, andY. {1167} With respecttothe specific 100,000gpdfigure, Appellants do not dispute Ohio EPA's use of50,000 mg TDS/1for the TDS concentration inthe 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 ofthe 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 andothernaturalvariations inriverflow. TestimonyAngelo. {1169} Appellants argue that Ohio EPA improperlyusedthe 87-million gpd7Q10 value to calculate the discharge limit. In particular, because the flow in the MahoningNos. 156477,786501, 156588, & 786589 

### 25 River is controlled by the Army Corps ofEngineers ("Army Corps") through a series of dams ratherthanby seasonalvariations, Appellants contendthat Ohio EPA shouldhave 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 permitsfor Warren. TestimonyAngelo.

**{~70}** In support, Appellants point to a fact sheet released in association with Warren's 1986 NPDES permit. The fact sheetstatedinpertinentpart: Flows in the Mahoning River are completely regulated by a series ofdams located upstream of the study area. The lowest flow occurs in February while the high flow is July. 

### Because ofthis, using the Q3o,w

### flow to calculate average limits and the Q 7 ,w

### flow to calculate the maximum limits is 

### notappropriate. 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 regardingthe extentofthe changesthatmighthave resultedfrom thehigher 145 cfs flow value proposed by Appellants, and no other witnesses discussed the effect the use ofa flow value of 145 cfs might have had on Warren's NPDES permit terms or conditions. TestimonyAngelo.Nos. 156477, 786501, 156588, & 786589 26

**{~73}** Several witnesses on behalfofthe Director testified that the use of7Q10
was indeed appropriate and that the 7Q10 low-flow value is routinely used to calculate permitlimits. Testimony Kniss, Novak, Blasick.

**{~74}** Moreover, Ohio EPA also argues thatthe 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 appearedas follows: 

### Comment 8: The streamflow thatwas used in the conservative substance wasteload allocation model (CONSWLA) is 

### incorrect. It is 

### different than theflow cited infact sheetsfrom the period 1984 through 1996. During that time, theflow used in the allocation was based on the lowflow that occurred in February due to the Army Corp of Engineers' regulation of the flows in theMahoning River. Response 8: Similarto the allocation procedure described inthe 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 similartothe Februarylow flow cited in the 1996 fact sheet, 145 cfs. Appellants Ex. 8.

**{~75}** The Commission surmises thatthe differences in flow values did not have
a significant effect on Patriot's corresponding discharge limitation. Even if Ohio EPA had adoptedtheArmy Corps flow value (145 cfs) ratherthan7Q10 (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 havebeen no more than 7,000 

### gpd. 22

**{~76}** 

### Finally, Appellants argue that notwithstanding any error in Ohio EPA's calculations, the results ofthe 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-hourperiod. 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 ofeffluent toxicity and the inhibition ofthe 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 atthatlevel. 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, usingbothMs. Kniss's andMr. Novak's method ofcalculation:
2010 PTI dischargelimit (using 7Q10 Discharge RequiredtoAchieve EquivalentTDS Concentration flow) (usingArmyCorps flow) Novak 100,000gpd Approx. 105,823gpd Method Kniss Metbod lOO,OOOgpd Approx. 106,617gpd 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 conclusionthatAppellants could safelydischarge 664,000 gpd intothe Mahoning River. B. Requirementto ComplywithPretreatmentStandards

**{~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 adoptedfrom time totime. ERAC No. 156477, Case File ItemA.

**{~So}** Patriot did not present any specific evidence at the de novo hearing regarding this assignment oferror. Its Notice ofAppeal, however, statesthattheterm is unreasonable andunlawful becauseit "does notprovideregulatory certainty." ERAC No. 156477, Case File Item A. C. MisleadingStatementAccompanyingPublicHearing

**{~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 andGGGGG.

**{~82}** Specifically, Appellants take issue with the statement's reference to a "science based study." As noted above, Ohio EPA eventually concluded that theNos. 156477, 786501, 156588, & 786589 29 statementwas a "poor choice ofwords." Appellants argue because Ohio EPA released an inaccurate statement in connection with its January 12, 2012 public hearing, Warren's 2012 NPDES Permit shouldbe invalidated. Appellants Ex. 74·

**{~83}** Significantly, the Commission notes thatthe final version of2012 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 orderto "ensure compliance" with R.C. 1509.22 rather than for scientific reasons or to ensure compliance water quality standards. Thus, Appellantswere notprejudicedby Ohio EPA's error. Appellants Ex. 79. D. Draft

### vs. ProposedNPDES Permit

**{~84}** In Objection A, Appellants argue that the Director was required to first issue Warren's 2012 NPDES renewal as a "proposed," ratherthan "draft," permit. ERAC Nos. 156477 & 786501, Case File ItemsFFFFF 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. 3745.07states inpertinentpart: 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 ofthe permit, license, orvariance. 

### * * * (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 tobe issued
as "proposed" rather than "draft." 23 Although the Memorandum ofAgreement makes several references to "proposed" NPDES permits, the term is not defined. ERAC Nos. 156477 & 786501, Case File ItemVVVVVV.

**{~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 statesin pertinentpart: 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 (emphasisremoved).

**{~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 ItemYYYYYY.

23 Appellants did not attach the Memorandum ofAgreementto their Response orotherwise provide an authenticated copy of the memorandum to this Commission. Moreover, the memorandum was not introduced atthe hearing. See ERAC Nos. 156477 & 786501, Case File ItemVWVVV.Nos. 156477, 786501, 156588, & 786589 31 E. Part II, SectionBBofWarren's 2012NPDESPermit

**{~91}** In Objections C and D, Appellants argue that the Director acted unlawfully and unreasonablyby including Section BB in Warren's 2012 NPDES Permit. Section BB appears as follows: BB. Beginning onthe 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 ofthe state is not an authorized method of disposal under R.C. 1509.22(C)(1) unless anduntilitis approvedbythe Chiefofthe Division of Oil and Gas Resources Management for testing or implementing a newtechnology ormethod ofdisposal. Ifsuch an approval is grantedunder R.C. 1509.22(C)(1) by the Chiefofthe Division ofOil and Gas Resources Management, thepermittee must submit an NPDES Permit Modification application to Ohio EPA for approval prior to acceptance of brine wastewater. The permittee may not acceptbrine wastewater from oil or gas drilling, exploration or production until after an NPDES Permit Modification authorizing acceptance ofthematerial is approved. ERAC No. 786589, Case File ItemA.

**{~92}** Appellants argue that the Director lacks authority to enforce Chapter 1509 ofthe Revised Code andtherefore exceeded his authorityby including Section BB inWarren's 2012 NPDES Permit. Further,Appellants argue thateven ifthe Director had the authority to include Section BB, Patriot and/or Warren did, in fact, obtain "approval"from ODNRpursuantto 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 ofwater 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 thatNos. 156477, 786501, 156588, & 786589 32 neither Patriot's 2010 PTI nor Warren's 2010 NPDES Permit conditioned the acceptance ofbrine wastewater on ODNR approval. Therefore, Appellants argue Section BB constitutes an affirmative prohibition. Testimony Blocksom.**{~95}** On behalfofthe Director, Brian Hall, Assistant Chieffor DSWM at Ohio EPA, testified that the provision does not create an affirmative prohibition. Mr. Hall testifiedin relevant partas 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 DNRbeforeyou can acceptthis. 

### *** 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 seethat? A. It goes on, April, to say that, upon approval from DNR, that they coulddischarge 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 permitterm. Specifically, Mr. Blasicktestified 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 businesstogether, ignoring BB all together? THEWITNESS: They ignored-- COMMISSIONER SHILLING: Theyjust 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 againstthe City ofWarren. COMMISSIONER SHILLING: Basedon? THE WITNESS: Based on the fact that they were in violation of that condition withinthe permit. COMMISSIONER SHILLING: I guess I'm getting to the bigger question. Ifyou take that
-- and I'm kind ofguessing at this point. How would you putthatcase togetherfor the Director in terms ofaviolation of 1509? THE WITNESS: Yeah. It would be a violation ofthe permit conditions that they had not received approval from ODNR for 1509, and they were acceptingwastewaters thatthey shouldn'tbe. 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 ofthe Revised Code outside of Chapter 6111 in NPDES permits, the provision was included in Warren's 2012 NPDES Permit to implementthe Director's policy, as outlined in his May 16, 2011 letter, and to ensure compliance with R.C. 1509.22. Specifically, Mr. Stuhlfauthtestified as follows: Q. And, again, the purpose for BB was to implement Director Nally's determination; is thatcorrect? A. Itwas inthe May 2011letter. Yes. Testimony Stuhlfauth.

**{~98}** On behalfofthe Director, Mr. Hall also explainedthathebelieves 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 ofwater quality, Mr. Hall testifiedinpertinentpartasfollows: Q. And you testified that [Ohio Adm.Code 3745-33-07] gives you the abilityto add a prohibition [ofbrine] inWarren'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 orto an NPDES permit, that we feel thatwe have the rightto addit as a condition ofthepermit. Q. Whatdoes "ancillary" mean? A. To me, it means it's something that's additive. Itgets us from Point Ato Point Bto Point C. 

### *** Q. So to ensure adequate protection ofwater 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'tknow? A. Yeah. Whatconcentrations will be coming from PatriottoWarrenis why we're asking

- we would be asking for another modification to thepermit. Q. You already know, Brian. You set those limits in the 2010 modification. They are 

### so,ooo milligrams perliters TDS, correct? A. Thatwas in the previouspermit, yes. Q. So you do know. You know whatwater's coming intoWarren. A. But ifDNR gives them approval, would itbe what

- would itbe 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 ofTDS affects the volume of wastewater discharge that Ohio EPA would allow under its NPDES program. For example, if ODNR "approved" Warren to dispose ofhigh salinity brine, such approval could affect Ohio EPA's evaluation ofthevolume ofliquiditwould authorize Warren to discharge. Significantly, however, no testimony was presented indicating why theNos. 156477, 786501, 156588, & 786589 35 Director could not directly regulate TDS concentration in a permit, independent ofany 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 argumentthat Section BB is "ancillary" tothe protection ofwater 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, andthat such "approval" is issued only in the form ofa Chiefs Order. Because Warren had neither applied for such approval nor obtained a Chiefs Order, the Director contends thatWarren 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
anApril 29, 2009 email from Brian Hallto Rich Blasick, which statesin pertinentpart: Scott [Kell, of ODNR] clearly stated that taking brine to POTW/CWT is clearly under Ohio EPAjurisdiction and it wouldleave it up to [Ohio EPA] to determineifa treatment system could meetWQS. 

### * * * 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 contendthat ODNR's knowledge of Patriot's and Warren's proposal, combined with its subsequent determination that ODNR did not have jurisdiction over such discharges, constitutedNos. 156477, 786501, 156588, & 786589 "approval" within the meaning ofR.C. 1509.22. ERAC Nos. 156477 & 786501, Case File ItemPPPP. CONCLUSIONS OFLAW

I. StandardofReview

**{~103}** Ohio Revised Code 3745.05 sets forth the standard ERAC must employ when reviewing a final action ofthe 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 andreasonable, 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 ordervacating ormodifyingthe action appealedfrom." R.C. 3745.05.

**{~104}** This standard does not permit ERAC to substitute itsjudgmentfor thatof 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,
orthatwhich has no factual foundation." Citizens Committee to Preserve LakeLogan 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 tobe determinedby [ERAC] uponthe de novo hearing is whether there is a valid factual foundation for the Director's action and not whether the Director's action is thebestormost appropriate action, norwhether [ERAC] wouldhave takenthe same action." 

### Id.

**{~105}** Further, the Commission is required to grant "due deference to the Director's 'reasonable interpretation ofthe 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 ifthe Director's interpretation is not at variance with the explicit language ofthe regulations").

**{~106}** The Commission will now address each of Appellants' assignments of error, aswell as each ofAppellants' objectionstoWarren's 2012 NPDES Permit. II. 

### 1oo,ooogpdDischargeLimitation

**{~107}** InAssignment ofErrorA, Patriot challenges the following provision inits 2010 PTI: No more than 100,000 gallons per day (gpd) may be discharged into the City ofWarren sewer system unless prior approval is obtained from the Ohio Environmental ProtectionAgency andthe City ofWarren.

**{~108}** Specifically, Patriot argues that the Director improperly imposed a flowbased rather than loading-based discharge limitation. Patriot also argues that even ifa flow-based limitation was acceptable, the specific 100,000 gpd limitation was unreasonably low. Specifically, Patriot challenges Ohio EPA's use ofthe 87-million-gpd 7Q10 value in calculating the 100,000 gpd discharge limitation and also argues that WETtesting datademonstrates Patriotcould safely discharge atleast 300,000gpd.

**{~109}** In response, the Director argues that Ohio EPA could not have set a loading-based discharge limitation atthe time the 2010 PTI was issued because PatriotNos. 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 of7Q10 was reasonable andthatthe 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 worktogethertorestrictTDS loading intheMahoning 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 ofapproximately 10%.Nos. 156477, 786501, 156588, & 786589

**{~113}** Ohio's anti-degradationrule states inpertinentpart: 

### *** When making determinations regarding proposed activities that lower waterqualitythe directorshall considerthefollowing: (a) The magnitudeof theproposedlowering of waterquality; (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 andtheoverall aquatic communitystructure andfunction; (c) The anticipated impact of the proposed lowering of water quality on humanhealth andthe overall quality andvalue ofthewaterresource; (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 statewaters or superiorhigh qualitywaters; (e) The effects oflower water quality on the economic value ofthe water bodyfor recreation, tourism andothercommercial activities, aesthetics, or otheruse andenjoymentby humans; (f) The extenttowhich the resources or characteristics adversely impacted bythelowered waterqualityareunique orrarewithinthelocalityor state; (g) The cost ofthe water pollution controls associated with the proposed activity; (h) The cost effectiveness and technical feasibility ofthe non-degradation alternatives, minimal degradation alternatives or mitigative technique alternatives and the effluent reduction benefits and water qualitybenefits associatedwith such alternatives; (i) The availability, costeffectiveness, andtechnical feasibility ofcentral 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; 

### 39Nos. 156477,786501, 156588, &786589 (k) The reliability ofthe preferred alternative including, butnotlimitedto, the possibility of recurring operational and maintenance difficulties that wouldleadtoincreased degradation; (I) The condition ofthe local economy, the number andtypes ofnew direct and indirectjobstobe created, state andlocal tax revenuetobe generated, and other economic and social factors as the director deems appropriate; and (m) Any other information regarding the proposed activities and the affectedwaterbodythatthedirector 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 permissiblefactor the Director mayconsiderin evaluating a proposeddischarge.

**{~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 ofdischarges. Here, Patriotdid not specificallychallenge 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 afterAppellants' 8-weekpilotstudy, Ohio EPA hadnotreceived dataregardingthelongterm (i.e., longerthan eightweeks) effects oftheproposed discharge.

**{~116}** With regard to Ohio EPA's calculation ofthe potential TDS concentration increase associated with a discharge rate of 100,000 gpd, Patriot contends that Ohio EPA's use of7Q10 as a factor in the calculation was unreasonable. Specifically, Patriot argues thatflow in the Mahoning River is controlledbytheArmy Corps through a series of dams. Thus, Patriot argues that the use ofthe 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 comparedto the 145-cfsArmy Corps figure, wouldbe significant. In fact, as indicatedin 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 demonstratedthateven atonly 100,000gpd, 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 pursuanttoitsevaluation ofthefactors listedintheanti-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 100,000gpd discharge limitationin Patriot's 2010 PTI. III. 

### Requirementto Complywith 

### PretreatmentStandards

**{~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 theyare adoptedfrom timetotime. Although no testimonywas presented athearing, Patriot's 2010 Notice ofAppeal 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 issuedpursuantto Ohio Adm.Code Chapter 3745-42, which provides inpertinentpart: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 andto ensure adequateprotection ofenvironmental quality. {11121} Ohio Adm.Code 3745-42-01 defines "applicablelaws" as follows: (A) "Applicable laws" means any applicable provisions ofChapter 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 ofthe Revised Code, and Chapter 3745-3 ofthe 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. MisleadingStatementAccompanyingPublic 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 periodfor the 2012 NPDES Permit defective. {1[125} The statementreadin pertinentpart: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 datafrom 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 "sciencebased study," andthe statementwas a "poorchoice ofwords."

**{~127}** The Commission acknowledges that the statement at issue demonstrates
a lackofattentionto detail onthepartofOhio EPA. Nonetheless, Warren's 2012NPDES 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 studydid not have any impact onthe 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 statementdoes notrenderthe 2012NPDES Permitunlawful orunreasonable.

V. Draft

### vs. ProposedNPDES 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 itsApril 24, 2012 Ruling, the Commission disagrees and finds the Director's decisionto issue the 2012 NPDES Permit as "draft"tobelawful.

**{~130}** The issuance of "proposed actions" is governed by R.C. 3745.07, which statesinpertinentpart: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 ofthe permit, license, orvariance. * * 

### * 44

(Emphasis added). Thus, underthe plainlanguage ofthegoverning statute, theissuance of"proposed" actions is discretionaryratherthan 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 theterm nor reference any provision ofOhio 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 thatboth documents use the phrase in its more ordinary vernacular.

**{~132}** In contrast, the phrase "proposed action" is specifically defined in the Ohio Administrative Code. Thethen-effectiveversion ofOhioAdm.Code 3745-47-03(M) statedasfollows: 24 "Proposed action" means a written statement that gives the director's intention with respect to the issuance 

### * * 

### * of any permit 

### * 

### * *, and concerning whichpersons authorized by law or agency regulations may file commentsor requestanadjudication hearing orpublicmeeting. (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 similardefinition can nowbefound in OhioAdm.Code 3745-47-02(P)(3) (effective dateApril 2, 2012).Nos. 156477, 786501, 156588, & 786589 45 hearing

### prior to the issuance ofan 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 ofadjudicationhearingsbefore issuing final actions need notbereachedin 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 ofappeals have all interpreted the "public hearings" provision ofthe FederalWater 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 notfind thefederal 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 ofthe final permits, andhave an opportunity for a full de 

### novo hearing before [ERAC] ifthey so desire. We find that this procedure is consistentwith due process, federal requirements, and R.C. 3745.07. {'l]134} Thus, pursuantto 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" ratherthanas "proposed." VI. PartII, SectionBB ofWarren's 2012NPDES Permit {'ll135} In Objections Cand D, Appellants challenge Section BB ofWarren'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 dischargetothe waters ofthe state is not an authorized methodofdisposal under R.C. 1509.22(C)(1) unless anduntil itis approvedbythe Chiefofthe Division of Oil and Gas Resources Management for testing or implementing a new technology or method ofdisposal. Ifsuch approval is granted under R.C. 1509.22(C)(1) by the Chief ofthe Division of Oil andNos. 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 wastewaterfrom oil or gas drilling, exploration or production until after an NPDES Permit Modification authorizing acceptance ofthe materialis approved.

**{~136}** Appellants arguethat Section BB exceeds the scope ofDirector's authority underOhio's NPDES permitting scheme.

**{~137}** The Director counters that Section BB ofWarren's 2012 NPDES Permit does not prohibit the acceptance ofbrine wastewater, and thus should not be analyzed

as a substantive provision ofthe 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
ensureprotectionofwaterquality.

**{~138}** The Commission will first address the Director's argument that Section BB does notconstitute an affirmative prohibition ofthe acceptance ofbrine wastewater. The Director argues thatbecause Section BB does not affirmatively prohibit acceptance ofbrinewastewater, itneed notbe analyzed as a substantiveprovision ofthepermit.

**{~139}** The Commission disagrees with the Director's characterization ofSection BB and finds that this provision does affirmatively prohibit Warren's acceptance of brinewastewater.

**{~140}** First, the language "shall stop accepting" explicitly requires Warren to take an affirmative action, namely, stop accepting brine wastewater. On behalf oftheNos. 156477, 786501, 156588, & 786589 

### 47 Director, Mr. Blasicktestified that Section BB is enforceable to the extentthatOhio EPA could seekan enforcement actionbased on a violation ofSection BB. 25

**{~141}** Significantly, ifWarren wishes to resume acceptance ofbrine 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 Managementhas approvedthis methodofdisposal.

**{~142}** Ohio EPA asserts that it is common practice to include references to provisions oflocal, state, andfederal laws notunder itsjurisdiction, butthatare related tothepermit atissue. Forexample, Part III, Section 24ofWarren'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 statelaw orregulation under authoritypreservedby Section 510 ofthe CleanWaterAct.

**{~143}** The Commission notes, however, that unlike Section BB, the above term is an example ofa simple, boilerplateterm generally informing a permittee ofits dutyto 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, itremains unclearwhetherOhio EPAbelieved ODNR would possess concurrentjurisdiction andcould pursue an enforcement action underR.C. 1509.22Nos. 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 ofwhether the Director hadthelegal authoritytoinclude Section BB inWarren's 2012 NPDES Permit.

**{~146}** The Director relies on two provisions ofthe Administrative Code as the legal basis for the Director's authority to include Section BB in Warren's 2012 NPDES Permit, OhioAdm.Code 3745-33-o4CA)(3) and3745-33-07(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 ofthe responsibility to comply with the authorized discharge levels specified in the permitorotherprovisions ofapplicablelaw.

**{~148}** Ohio Administrative Code 3745-33-07(A) grants the Director the authority to impose certain additional terms and conditions in NPDES permits not specificallyenumeratedelsewhere. The provisionprovides as follows: (A) 

### * 

### * * The director may impose additional terms and conditions as part ofan 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 arguesthatSection BB islawful undereither orbothofthese 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 SectionNos. 156477, 786501, 156588, & 786589 49 BB is authorized under Ohio Adm.Code 3745-33-07(A) because it is "ancillary" to the protection ofwaterquality. 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 ofOhio 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 complywith those otherlaws andregulations.

**{~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 pursuanttowhichhepromulgatedtherule.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 oftheAdministrative Code, the Commission notesNos. 156477, 786501, 156588, & 786589 50 {'11152} Revised Code 6111.03(A) outlines the overall purpose of Ohio's Clean WaterAct. Itauthorizes the Directorto develop plans andprograms "fortheprevention, control, and abatement ofneworexisting pollution ofthewaters ofthe state." {'11153} Further, R.C. 6111.03(J) describes the scope ofthe Director's authority to issue NPDES permits: The director ofenvironmental protection may* **: 

### *** (J)(1) Issue, revoke, modify, or deny 

### * * * permits for the discharge of sewage, industrial waste, orotherwastes intothewaters ofthe 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 andpretreatmenteffluent standards setunderthatact***. *** (3) To achieve and maintain applicable 

### standards ofquality for the waters ofthe 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 ofthe Director's authority to approve POTWpretreatmentprograms: The director ofenvironmentalprotection may * * *: (Q) Administer and enforce the publicly owned treatment works pretreatment program * * *. In the administration of that program, the director may do anyofthefollowing: 

### ***

that its definition reflects the well-established notion that an administrative agency may not enact rules that expand upontbe statutory authorityunderwhich those rules were promulgated.Nos. 156477, 786501, 156588, & 786589 (2) Approve and deny requests for approval ofpublicly owned treatment works pretreatmentprograms * * 

### * 

### *** Any approval ofa publicly owned treatment works pretreatment program may contain any terms andconditions, including schedules ofcompliance, thatare necessaryto achieve compliancewith this chapter. (Emphasis added). 51

**{~155}** Thus, under the applicable provisions ofR.C. 6111.03, the unambiguous purpose ofthe NPDES permit program, the POTW pretreatment program, and indeed the entirety ofOhio's Clean WaterAct is to prevent, control, andreduce 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" mustbe limited to thoselaws and regulations that fall within the scope ofChapter 6111. In other words, the Director's authority to ensure compliance with "applicable laws" is limitedto those "applicable laws" that serve the purpose ofprotecting water quality. To hold otherwise would be to allow the Director to use the rulemaking and permitting processestoimpermissiblyexpandupon his statutory authority. 27

**{~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 includethe following language. • • • In order to assistthe division in the furtherance ofits 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 establishedin this section. • • • (Emphasis added). Thus, the bill acknowledges the well-established rule that one administrative agency may not, unless otherwise providedforby statute, enforce the rules andregulations ofanother.Nos. 156477, 786501, 156588, & 786589 52 otherwise served as an integral component ofR.C. Chapter 61n'simplementation ofthe Clean WaterAct. 2B Therefore, the Commission finds that, tothe extent Section BB seeks to "ensurecompliance" with R.C. 1509.22,the Director actedunlawfully.

**{~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 ofwater quality. Specifically, Mr. Hall explained thatthe term was included in response to concerns regarding TDS in brine wastewater derived from oil and gas operations,29 Mr. Hall opinedthat ODNR couldtheoretically approve Warrento dispose ofbrine at high concentrations ofTDS, andthatin such a scenario, the discharge could jeopardizeWarren'sWWTP orwater qualityintheMahoning River.

**{~159}** Significantly, the Commission has previously held that the Agency must be able to establish a validfactual foundation for the correlationbetween anoperational restriction and that restriction's ultimate goal. E.g., General Electric Lighting v. Jones, ERAC No. 185017 (March 1, 2005), citingDayton Power & Lighting Co. v. Jones, ERAC No. 574950 (Aug. 21, 2003).

2s Infact, NPDES permitsrarely, ifever, includedterms thateven cross-reference statutes outsideof Chapter 6111. Testimony Stuhlfauth.
29 Mr. Hall's argument is undercutby the fact that in the various dispositive motions filed with the Commission prior to thehearing, the Director consistentlyarguedthatthe mere existence ofR.C. 1509.22 necessitated inclusion ofSection BB, independentofany impact onwater quality. E.g., ERAC Nos. 156477 & 786501, Case File Items FF, XXX, andMMMMMM.Nos. 156477, 786501, 156588, & 786589 53

**{~160}** For example, in General Electric Lighting, the permit at issue imposed operational restrictions on the "secondaryvoltage (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 reflectedthe conditions present during a required stacktest. I d. atFOF

**~19.** Thus, Ohio EPA argued that the restrictions on voltage and current served the purpose ofensuring 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."Id. atCOL

**~17.**

**{~161}** Here, as in General Electric Lighting, the Commission finds that the evidence fails to establish the correlation between Section BB andthe 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 ofbrinedisposal atany concentration.

**{~162}** Moreover, testimony supportsthat otherterms and conditions within the Director's authority to include in NPDES permits canbeusedto directly limitTDS. 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 workedtogethertorestrictthetotalTDS enteringWarren'sWWTP.

**{~163}** Although the Commission grants deference to the Director's factual determinations, the nexus between a given permit term and the desired result mustbeNos. 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 establishedthat Section BB was included for theprimarypurpose ofensuring compliance with R.C. 1509.22,3° a statute outside of Chapter 6111 andover whichthe Directorhas nojurisdiction.

**{~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 applicabilityofR.C. 1509.22to Warren orto 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" oftheWarren/Patriotmethodofdisposal.

**{~166}** The Commission emphasizesthatthis Decision does notrelieve Patriotor Warren of their independent obligations to comply with applicable laws. The Commission simply holds that Director exceeded his authorityby including Section BB inWarren's 2012 NPDES Permit.

3° Note 29, supra.

### Nos. 156477, 786501, 156588, & 786589 

### 55 FINALORDER

**{~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 Permitunlawful, andhereby MODIFIES, pursuantto 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 otherrespects.

**{~169}** 

### The Commission, in accordance with Ohio Adm.Code 3746-13-01, informs thepartiesthat: Any party adversely affected by an order ofthe commission may appeal to the court of appeals of Franklin County, or, ifthe 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 ofappeal designating the orderfrom which an appeal is being taken. Acopy ofsuch 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 shallbe requiredto make an appeal effective.

Entered into theJoun;al ofthe Commissionthis

**J~** 

### day ofJuly 2012. TheEnvironmentalReview Appeals CommissionNos. 156477, 786501, 156588, & 786589 Copies Sentto: PATRIOTWATERTREATMENT, LLC CITY OFWARREN CHRIS KORLESKI, Director SCOTT NALLY, Director April R. Bott Sarah L. Herbert MacDonaldW. Taylor SummerJ. Koladin Plantz Janean R. Weber Christine L. Rideout [CertifiedMail] [CertifiedMail] [Certified Mail] [Certified Mail] 

### s6Nos. 156477, 786501, 156588, 786589 CERTIFICATION
I hereby certifythattheforegoing is a trueandaccurate copyofthe DECISION in PatriotWaterTreatmentLLC. andCityofWarren. Ohio v. Chris Korleski. DirectorofEnvironmentalProtection, Case Nos. ERAC 156477, 786501, 156588, 786589 enteredintotheJournalofthe Commission thisgrddayofJuly, 2012.

J ie A. Slane, Executive Secretary (d Dated

**this~** dayof July2012, atColumbus, Ohio.