Law Office 

## TERRY JONATHAN LODGE

316 N. Michigan Street, Suite 520 Phone (419) 255-7552 Toledo, Ohio 43604-5627 Fax (419) 255-7552 lodgelaw@yahoo.com



### June 3, 2014

**James Zehringer, Director Ohio Department of Natural Resources** 
**2045 Morse Road Columbus, OH 43229-6693**  Via certified mail and email

**RE: Demand for revocation of Chief’s Orders for drilling waste disposal facilities**

**Dear Mr. Zehringer:**

**I am writing on behalf of citizens in Youngstown and in the Barnesville area, who are actively challenging the operations of fracking waste facilities, to demand an immediate end to a**  **flagrant violation of state law. I am referring to the illegality of the Department of Natural Resources’ issuances of Chief’s Orders to create twenty-three (23) drilling waste treatment and**  **disposal facilities across Ohio. Noncompliance with the explicit requirements of O.R.C. § 1509.22 requires the immediate revocation and cancellation of all Chief’s Orders issued since**  **January 1, 2014, because all of them have been improvidently issued.**

**Attached is a list of the facilities which have, to the best of our knowledge, each been issued a Chief’s Order. Each of the orders contains boilerplate wording and contains zero**  **conditions to assure workers’ or the public’s health and safety. The process culminating in issuance of these orders by the ODNR Chief of Oil and Gas Resources Management violates**  **mandatory requirements of the Ohio Revised Code.**

**We learned of ODNR’s facility approvals only by dedicated pursuit of public records requests. The unfortunate concealment of these public regulatory decisions may relate to the very**  **nature of the facilities themselves. They all seek to handle, process, treat and/or dispose of oil and gas drilling wastes from horizontal hydraulic fracturing (“fracking”) wells. The hundreds of**  **thousands of tons of solid wastes, and millions of gallons of liquid wastes which result from fracking, are rife with radiation, heavy metals, and toxic chemicals used to extract oil and gas**  **from deep shale formations. ODNR elicits almost no information from the facility applicants aimed at disclosure of their processes and technologies. But from even the little information**  **provided to the Department, the facilities are obviously handling radioactive fracking wastes, and that requires far more regulatory involvement and stringency than the Department provides.** 

**O.R.C. § 1509.22( C) states:**

**Page 1 of 2**

### (C) The chief shall adopt rules regarding storage, recycling, treatment, processing,

**andd disposal of brine and other waste substances .** The rules shall establish procedures and requirements in accordance with which a person shall apply for a permit or order for the storage, recycling, treatment, processing, or disposal of brine and other waste substances that are not subject to a permit issued under section 1509.06 or 1509.21 of the Revised Code and in accordance with which the chief may issue such a permit or
order.

**(Emphasis supplied). This statute requires that before ODNR may consider facility applications, ODNR first must promulgate and publish rules which define the permit types, how one may**  **apply, and the informational detail required for a considered decision to issue or deny such orders. But those rules do not exist; nothing can be found in the Ohio Administrative Code**  **which has been promulgated pursuant to Ohio’s Administrative Procedure Act (O.R.C. Chapter 119). According to O.R.C. § 1509.03(A), the APA must be obligatorily followed.**  **1**



### If, as we have concluded, these orders are being issued without rules, then there is no **legislative direction over the approval of these facilities, and the statute allowing them is void for unconstitutionally delegating legislative power to an executive agency. We submit that as to all**  **23 of the fracking waste facilities covered by Chief’s Orders, Chief Simmers’ decisions are unlawful, and his orders cannot stand. Accordingly, we urgently demand that the ODNR**  **immediately revoke and cancel all of these orders in favor of undertaking the requisite Chapter 119 rulemaking(s) to comply with the obligations imposed by O.R.C. § 1509.22.** 

**Please respond within twenty (20) days of receipt of this letter, indicating that ODNR is nullifying the existing chief’s orders. Otherwise, we will consider ourselves free to pursue other**  **options.**

**Thank you very much.**

**Very truly yours,**

/s/ Terry J. Lodge **Terry J. Lodge**

**cc: Rick Simmers Mike DeWine, Esq.** 

**Which states: “(A) The chief of the division of oil and gas resources management shall adopt, 1**  **rescind, and amend, in accordance with Chapter 119. of the Revised Code, rules for the administration, implementation, and enforcement of this chapter.”** 

**Page 2 of 2**

### LIST OF FACILITIES ISSUED ‘CHIEF’S ORDERS’

**1. 4 K Industrial Park,**
**LLC**
**1001 Main St. Martins Ferry, Ohio 43935** 

**2. Antero Resources Miley Pad, Noble County,** 
**Ohio**

**3. Buckeye brine, LLC**
**6505 US 36 Tuscarawas, OH** 

**4. Chesapeake Exploration**
**LLC**
**9125 Dawson Road. Hopedale, OH** 

**5. CNX gas company LLC Cowgill Road.**  **Sarahsville, OH**

**6. Dow Cameron oil and**

**gas. 1470 Adamsville Rd**  **Zanesville, Ohio**

**7. EnerGreen 360 Holding Company LLC**  **East Ohio regional**
**industrial Park Belmont County, Warren**  **Township**

**8. Enviro Clean Services**
**515 Industrial Blvd. Wooster, Ohio** 

**9. Enviro Tank Clean. Belpre, OH** 

**10. GreenHunter Water**
**50810 State Route 7 Washington County,**  **Grandview Township**

**11. Halliburton energy services, Inc.**  **Zanesville, Ohio**

**12. Heckmann Water**
**Resources Inc. 935 E. Pike** 
**Norwich Ohio**

**13. Iron Eagle Sherrodsville, LLC** 
**20 S. Church St. Sherrodsville, OH** 

**14. Liquid waste**
**solidification LLC**
**440 S. 3rd St. Steubenville, Ohio** 

**15. Somerset regional**

**water resources. 43031 Industrial Park Dr.**  **Cadiz, OH**

**16. The Belden brick**

**company. 375 Dover Rd. NW.**  **Sugar Creek, Ohio**

**17. Weavertown Transport Leasing, Inc.**  **2741 Stonecreek Rd,**
**Southwest New Philadelphia, Ohio** 

**18. Warren Drilling**
**305 Smithson Street Dexter City, OH** 

**19. CMS Oilfield Services 69500 Bannock Road**  **St Clairsville, OH**

**20. Keystone Clearwater Solutions, LLC** 
**Grunder Pad to Jenkins**
**Pad to Ocel Pad Carroll County** 

**21. NuGlobal Water Solutions, LLC** 
**44995 Dickerson Church**
**Road Cadis, OH** 

**22. Industrial Waste**
**Control/Ground Tech.**
**240 Sinter Court Youngstown, OH** 

**23. K&H 28333 West Belpre Pike**  **Coolville, OH**Facilities operating under HB 59. Rules have not been finalized for these facilities.

1) 4 K Industrial Park, LLC application 46 pages
1001 Main St. Martins Ferry, Ohio 43935

Will utilize waste treatment resources of the former RG steel Martins Ferry Ohio operation. Treatment of hydraulic fracturing water, and drilling fluids to acceptable quality for recycle back to drilling companies for reuse. Various chemical additives will be used. The operation wi ll be a zero discharge system requiring modification of the NPDS permit. Chemicals include, but are not limited to, sulfuric acid, L, soda ash, 30% caustic, polymer flocculant.

Water received will be pumped into a 200,000 gallons incoming storage tank. The current proposed treatment will allow between 135,000 and 150,000 gallons of flow back per day. The facility is located in Belmont County borders the Ohio River on the west at mile marker 88.5.

A technician will walk around the truck with a hand

- held radiation survey monitor and record the survey. The top hatch will be opened and the following air contaminants will be screened with a hand

held calibrated instrument with in the headspace of the truck, Hydrogen sulfide, percent oxygen, LEL, methane, ca rbon monoxide.

Facility is under 24

- hour surveillance by security cameras strategically placed on the property.

Process residue will be collected with in the geo

- tube filter bag stored in roll

- off container. The contents
of which will be tested in accord ance with the approved landfills acceptance policy. NORM/TENORM, liquids will b e screened in the laboratory i f reasons are found for further analysis. Samples will be
collected and sent to an a pproved laboratory for radium 226 and 228. The Ohio Departme nt of Health will be consulted for guidance in proper handling of elevated levels. Current options for disposal considerations are approved dilution techniques, transport to approve low

- level radiation landfill or to a Michigan landfill that allows levels up to 15 picocuries/grams for contaminated material.

2) Antero resources application 39 pages Brine treatment and recycling Miley Pad, Noble County, Ohio

The facility will be capable of treating up to 12,000 barr els per day, which is equivalent to a design capacity of 504,000 gallons per day. It is anticipated that a flow of 100,000 barrels per month (4,200,000 gallons per month) will be processed. Approximately 1 ton of wet sludge is generated per
1000 barrels of flow treated, which is equivalent to about 100 tons per month of anticipated flow.

Sludges will be solidified with fly ash and sent to the WMI Northwest landfill in Parkersburg, West Virginia. The WMI landfill does not require testing TENORM.

3) Buckeye brine, LLC application broken down into multiple files

6505 US 36. Tuscarawas, OHT he facility will receive waste oil field fluids and treat them to specifications suitable for reuse as

Frack ing fluid. The facility will als o receive oilfield sludges and solids, de

- water them with a centrifuge. The solids will go to a landfill in a dry state requiring no further. Solidification, while the water will be introduced into our recycling operation, or disposed of in our injectio n well, 30 miles away to the east in Coshocton. All vessels intended to be processed in the solids. Facility will be scanned using a handheld
Scintillation monitor.

Note: letter to ODNR, since starting operations, we have received over 1 million barrels of fluid and have accumulated a considerable inventory of solids. We first clean solids out of our tanks in July and did so again in early September. Owing to widespread confusion and concern about the TENORM rules and guidance, we have been unable to g et the material except that at any Ohio landfill. After much struggling, we have finally managed to start moving the material to a landfill outside of Ohio. Meanwhile, we face the need for another tank cleanout immediately at a time when we are under way with some new construction projects. We need to move our solids out of the Coshocton facility and store them at another location until we can dewater the solids. To the extent possible through gravity separation in preparation for shipping them to a lan dfill.

4) Chesapeake E xploration LLC application multiple files
9125 Dawson Road. Hopedale, OH

Electrocoagulation , solids are skimmed, decanted and properly disposed in accordance with current regulations. This appears to be a mobile unit maximum processing capacity is 10,000 barrels a day.

5) CNX gas company LLC Cowgill Road. Sarahsville, OH

T he proposed facility is an in ground centralized impoundment the facility will receive freshwater flow back in produced fluids from multi ple Consol gas operations. The fluids will be stored in the impoundment and sent to surrounding Consol Utica Wells for recycling during frack operations. The facility will have a 6 inch clay liner, covered with a secondary HDPE liner, covered by a geo

- ne t fabric for the leak detection layer than a primary HDPE liner. Facility will operate with automatic security and fluid tracking system.

The total volume of storage will be approximately 10,000,000 gallons with 2 feet freeboard. Fluids will
be delivere d to the site via pipeline and possibly by tanker trucks. Depth of the impoundment will average 16 feet, with up to 22 feet at the sump. No mention of how solids will be handled.

6) Dow Cameron oil and gas.
1470 Adamsville Rd Zanesville, Ohio

Facility rec eives oil and gas brine filters to remove suspended solids, then transports filtered water to accepted disposal Wells . Solidification process has been implemented in order to manage all residual solids. No mention of what this process is or where the sol ids are disposed of.7) EnerGreen 360 Holding Company LLC

Eas t Ohio regional industrial Park Belmont County, Warren Township

Will manufacture several products and structural fill to develop the property. The material will be used
at the same location t hat the treatment process takes place

, structural fill for pad ready sites

– drilling sites eligible to be under ODNR authority. Road base for construction of least roads

– within regulated area. The property will be developed with the chemically and geo technically treated material. Once placed in the backfill the professional engineer will render the site “clean” certified under Ohio voluntary action program (OEPA) issuing a ”no further action” letter on the redeveloped site.

Our intent is to remain on the site developing sections of the 200+ acres in 6 acre tracts as we go.

8) Enviro Clean Services
515 Industrial Blvd. Wooster, Ohio

Centralized waste treatment facility. All waste brought into the facility for solidification unloaded into
solidification pit, mixed with sawdust and auto fluff and tire fluff. Can manage 90

– 100 tons per day. The facility may also except tank bottoms for treatment. Solids to be disposed of at a permitted landfill. Facility also plans to accept TENORM waste for down ble nding. The facility will conduct a “finger printing” test on the waste with a Rad

– A lert 100 radiation screening unit.

9) Enviro Tank Clean. Belpre, OH

Basically the same operation as Enviro Clean above. Same owner from West Virginia.

10) GreenHunter Water

50810 State Route 7 Washington County, Grandview Township

Brine holding facility. Brine water is held until capacity is available at one of five permitted disposal Wells in Ohio or to permitted disposal Wells in West Virginia. If water is received that because of solids cannot be taken directly to a disposal well, the water is processed through a vibration system that
removes the solids. The water is then taken to disposal well for injection or offered back to the producer. As of yet, no producer has taken the water. Solids are taken to Waste Management through a WV disposal profile. This landfill does not require TENORM testing.

11) Halliburton energy services, Inc. a pplication 398 pages liquid mud plant Zanesville, Ohio

Use drilling mud, containing any contained drilling solids, is placed into the facility storage tanks for processing. The use drilling mud may be processed through a centrifuge at the LMP to physicallyseparate out the drilling solids from the use drilling mud. Solid and liquid chemicals are mixed with the

recycle drilling mud to create the different consistencies and types of drilling mud required for specific well drilling applications. The facility is capable of handling and processing more tha n 250 barrels per day of drilling mud.

12) Heckmann Water Resources Inc.
935 E. Pike
Norwich Ohio

Storage facility consists of six

– 500 barrel frack tanks. Each bracket tank is individually filled directly
from the truck. All frack tanks are located insid e of the Earth and containment with a 16mm HDPE textured liner, with a 10 ounce nonwoven geotextile between the Earth and the liner. Depending on the need of the customer, the brine inside the tank is either disposed of at an injection well or returned to
the customer. No comment on treatment of solids.

13) Iron Eagle Sherrodsville, LLC
20 S. Church St. Sherrodsville, OH

T he site for the proposed transfer station will be on the same location as the proposed, iron Eagle treatment facility, whose preliminar y notice has already been supplied to ODNR. NOTE : preliminary notice for Iron Eagle treatment facility has not been included in ODNR response to my records
request.

14) Liquid waste solidification LLC
440 S. 3rd St. Steubenville, Ohio

A pre

- frack nonhazardo us solidification facility. We solidify 100% of all liquids that are brought into our facility. We are a fully indoor facility on a concrete floor without any floor drains in our entire facility. We empty the waste into our 1/2 inch thick steel bends th at are 6 feet deep, 10 feet wide and 30 feet long. We then add solidification agents such as sawdust and quicklime and mix within excavator. Once the material is to a point that it wil l pass the paint filter test w e then load it into a truck and ship it to our local landfill APEX. Presently handling anywhere from 100 to 500 barrels a week.

15) Somerset regional water resources.
43031 Industrial Park Dr. Cadiz, OH

P roposing to construct a beneficial reuse wastewater treatment facility to treat wastewater, a nd drilling muds that will be trucked in from the oil and natural gas wells. Will be receiving frack flow back water, produced water, and drilling muds from the oil and natural gas wells to be treated and reused at well sites. Will also treat pipeline te sting water and drilling mud for reuse at oil and natural gas drilling sites.

Each truck will be tested for drip gas level and radiation scan will be performed using a handheld instrument prior to and loading. If radiation readings are below are permit l evel the water will be pumped into the DAF unit. Anticipated volume, 600,000 gallons daily. Dewatered mud will be placed inthe roll

- off boxes will be hauled off

- site for disposal at an approved landfill. The roll

- off boxes will be

scanned for radiation levels prior to be sent off

- site.

16) The Belden brick company.
375 Dover Rd. NW. Sugar Creek, Ohio

Brine is hauled from production tanks at the well to the brine storage facility and placed in tanks where it is stored until it is taken by truck to be used for dust control on our haul roads.

17) Weavertown Transport L easing, Inc. 2741 Stonecreek Rd, Southwest New Philadelphia, Ohio

Cleans tote containers used for oil and gas primarily in Eastern Ohio. Future plans for expansion of service to be provided at th e facility will include solidification of drilling mud, CNET water, and drill cuttings and brine water processing poor recycling and/or transport to class II injection well. Solids will be sent to a landfill. Anticipated that the treatment facility could process up to 200,000 gallons per day

. Application does discuss down blending but does not discuss how tested.

18. Warren Drilling
305 Smithson Street Dexter City, OH

19. CMS Oilfield Services
69500 Bannock Road St Clairsville, OH

Storage, drilling mud, drill cuttings, other. Flow Back, Produced waste and sand.

20. Key stone Clearwater Solutions, LLC
Grunder Pad to Jenkins Pad to Ocel Pad Carroll County21. NuGlobal Water Solutions, LLC

44995 Dickerson Church Road Cadis, OH

22. Industrial Waste Control/Ground Tec h.
240 Sinter Court Youngstown, OH

23. K&H 28333 West Belpre Pike Coolville, OH

Solidification facility. Solids sent to landfill in WV. Not TENORM testing re