If they only had a RCRA permit...Part 4

As I left off in my last post:

Which brings us to the 2006 DTSC public notice regarding the Part B permit?  What happened between 2006 and present date?

Here is what the DTSC stated in their 2006 Fact Sheet about Exide:

DTSC conducted a detailed review of the Exide Technologies Part B Permit application and has determined that it complies with all applicable regulatory standards and requirements.

Okay...no administrative dottin' and crossn' stuff holding it up...

DTSC completed an environmental impact evaluation called a draft Environmental Impact Report (EIR).

Okay...

The proposed project was concluded to have a potentially significant adverse air quality impact because PM10 (very fine particulate matter, under 10 microns in size) and off-site NOx emissions (nitrogen oxides, primarily related to trucks) exceeded the South Coast Air Quality Management District’s significance threshold for new sources.

So we have some air issues for particulate matter and nitrous oxide...

Note, that the Facility is not a new source and that all other emissions were determined to be less than significant.

What that means is that the requirements to deal with the PM and NOx are not as robust as they could be if the facility was a new facility.  That's part of the grandfathering issues with the Clean Air Act.  However, the DTSC found that all other emissions - which would include lead - were less than significant.

The impacts of the facility on all other environmental resources were also determined to be less than significant.

So other than PM10 and NOx, the DTSC had no environmental issue with Exide in 2006.  What about human health issues?

The risk assessment evaluated potential cancer and non-cancer health effects that could be caused by the facility’s operations. The assessment took into account a variety of factors, including the types and maximum amounts of waste that would be stored and handled at the facility, and all the possible ways people could be exposed (through breathing the air emissions, coming into contact with the soil surrounding the facility, and similar activities).

Okay...

For cancer, the potential effects from the facility are well within health risk limits.

Good on the cancer impact...

For non-cancer health risks, the risk assessment evaluated chronic and acute health effects for both the nearby residents and facility workers. The assessment concluded that non-cancer health risks are also well within the state established limits. 

Good on the non-cancer health impacts.

So what's the problem with issuing Exide their Part B permit in 2006? I can't find anything from that time using Google.  What I do find is information on a public meeting two California lawmakers had with the head of the DTSC.

I'll quote from Jessica Garrison's Los Angeles Times October 8th, 2013 article, starting here:

"Are our children worth as much as any other child?"

Agency Director Debbie Raphael somberly told the crowd that she could not explain the failures of the past but that her agency has been vigorously working to bring the facility into compliance during her two-year tenure.

Interrupting Raphael at one point, Mejia picked up a megaphone and screamed: "Stop permitting serial polluters! That's what you can do!"

It's the next paragraph that brought me back to Google for a search:

The meeting came the same day that the Department of Toxic Substances Control issued a consultant's report saying that its permitting program is racked by "poor management practices" and that the department does not have a system for revoking or denying permits even when there is a significant threat to human health, according to a consultant's report released by the agency Tuesday.

I looked at that report.  And what caught my eye was this:

Page 51 of the report

Here was the head of the DTSC being asked about the "failures" of the department with a consultants report concluding that the Exide permit should be revoked.

In 2006 everything was fine and now in 2013 no permit is the recommendation of their consultants that were hired to:

Using CPS HR Consulting's questions, I set out to find out why they made this recommendation.  Here is what the consultants say about Exide in their report to the DTSC:

Exide. This is a battery recycling facility located in Los Angeles area (City of Vernon). Exide is one of the last “interim” permits (a disposal site in existence prior to the 1982 law that established DTSC and grandfathered pre‐existing operators.) It has been controversial both because the South Coast Air Quality district has recently found its air emissions to pose elevated cancer risk in the area, while the Department discovered that the facility was releasing hazardous waste into the soil due to a degraded pipeline. The Department believed Exide was not fully cooperative or responsive.

In 2006 everything was in order, so where did this new information come from?

April 24, 2013: DTSC issued the order after receiving reports regarding airborne emissions from Exide’s operations and ongoing subsurface releases from degraded underground pipes.

All of this was happening under the backdrop of the fight in Texas over the Exide facility in Frisco. So what new stuff came into existence?  Enter Exhibits 1, 2, 3, and 4.  Man you gotta really get into the weeds to figure out what is going on.

Exhibit 1- Order of Temporary Suspension: "I conclude that it is necessary to issue this Order for Temporary Suspension pending hearing to prevent or mitigate the substantial danger pursuant to Health and Safety Code Section 25186.2."

Substantial danger...go on...

Exhibit 2: On March 5, 2013, Exide submitted a Storm Sewer Inspection Report (Report) which indicates that the underground pipelines used to convey the lead contaminated storm water to a hazardous waste treatment tank system are in poor conditions. Exide proposes to replace and design the underground pipelines to meet with the tank ancillary equipment requirements ... 

Okay, so that's what the consultant means as "releasing hazardous waste into the soil due to a degraded pipeline."  What about the claim that the SCAQMD "recently found its air emissions to pose elevated cancer risk in the area?"  Was this for PM10 and NOx?

16.1 In a letter dated March 1,2013, the SCAQMD advised Exide that the HRA submitted by Exide in January, 2013 indicates the Facility poses a maximum individual cancer risk (MICR) of 156 in one million for an offsite worker receptor about 300 meters northeast of the Facility (primarily arsenic).

16.4 Also, according to the SCAQMD, the HRA indicates the Facility poses a maximum individual cancer risk (MICR) of 22 in one million to the nearest residential receptor.

Wait...arsenic?  Nooooo not arsenic, and cancer?  Nooooo.  But alas, I must now go back to my ol' faithful nemesis, Arsenic.  That's what the DTSC is using to claim that "emissions from the facility operations pose a significant risk to the surrounding community."

Good ol' Arsenic.  Good ol' cancer risk...now the fun begins.  Is the DTSC correct in the assertion that the Exide is emitting arsenic into the community that increases the risk to "pose a significant risk to the surrounding community?"  Here is what they say in Exhibit 2 about that:

DTSC accepts a cumulative risk that does not exceed a one in one million (10-6) for cancer risk. A risk level of 10-6 implies there is a likelihood that up to one person. out of one million equally exposed people, would contract cancer if exposed to the specific concentration continuously (24 hours per day) over 70 years (an assumed lifetime). This would be in addition to those cancer cases that would annually occur in an unexposed population of one million people.

Okay, so the pipes be leakin' and Exide is going to fix them.  The arsenic presents another hurdle to overcome.  What I want to know is how they calculated that 22 in one million to the nearest receptor risk.

Inquiring minds gotta know.


If they only had a RCRA permit...Part 5

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If they only had a RCRA permit...Part 3

Okay, so let's be honest with one another here regarding the Exide facility in California.  The NIMBY folks and the environmental activists folks do not want it.  Period.  No matter what Exide does to reduce, control, or eliminate exposure, the fact that they have a smoke stack, operate a smelter, and work with lead - a chemical they know causes harm to children - makes this facility unwanted.

There is nothing, absolutely nothing, that will convince these loud and angry folks otherwise.

Nothing.

That's not how the DTSC is supposed to look at the situation.  They are supposed to make decisions on health impact based off of data that supports or contradicts the contention of "imminent and substantial danger to public health and the environment." (1)

The loud and angry folks that protest, yell, threaten, and show up at public meetings to discus things like Exide's Part B permit, are the ones who get the agency's attention.  No one at the DTSC has the guts to tell them to shush and look at the numbers and evidence to determine harm.

On Tuesday, critics of Exide and state regulators, including Assembly Speaker John A. Pérez and two state senators, complained bitterly about how the residents were being treated. According to the Los Angeles Times, lawmakers clapped along while the audience rhythmically chanted, “Shut it down” at a community meeting attended by DTSC Director Debbie Raphael and other regulators.  (2)

 The other issue at hand is an agency - and this is not inclusive of only DTSC - that does not fully understand the science and technicalities regarding the stuff they regulate.  Remember the quote from the DTSC's "top spokesman" as quoted in the LA Times article that started these blog posts?

Jim Marxen, the agency's top spokesman, said last week that regulators do not have a good explanation for the plant's continued operation without a full permit.  "I don't blame the activists who say we are slow to act," he said. "If that was in my neighborhood, I would say the same thing. ... Ten years ago, when they had hearings on this, there was frustration even then."

Maybe he does know there is no difference between an interim status facility and a full Part B facility, but he is perpetuating the belief that the "neighborhood" is being impacted without a Part B in place.

The other issue in play regarding the permit revolves around the question; Is a Part B permit actually required?  Here is what California says about the Exide facility in Vernon:

A RCRA Permit (42 U.S.C. Section 6901 et seq.), is required for the storage, treatment, and disposal of hazardous wastes, and corrective action for the releases of hazardous wastes / substances found at the facility. On August 1, 1992, DTSC received RCRA final authorization from the U.S. EPA to implement the State Hazardous Waste Management Program (HWMP) in lieu of the federal RCRA program. Therefore, a Permit issued by DTSC is considered a RCRA-equivalent Permit.

The issue of whether a Part B permit is actually required in California is beyond my expertise. What I do know about Part B permitting is from the Federal point of view.

Under 40 CFR 266.100(c), owners or operators of smelting, melting, and refining furnaces that process hazardous wastes solely for metals recovery are conditionally exempt from regulation, except for 40 CFR 266.101 and 266.112, provided they comply with limited requirements set forth in Section 266.100(c). Similarly, 40 CFR 266.100(f) provides that owners or operators of smelting, melting and refining furnaces that process hazardous wastes for the recovery of precious metals are conditionally exempt from regulation, except for 40 CFR 266.112, provided they comply with limited requirements specified in Section 266.100(f).

Here is where it gets nuanced.  Are lead-acid batteries hazardous waste?  In California they appear to be:

Processing lead-acid batteries for recycling by draining the electrolyte, crushing, smelting or other physical methods is a fully regulated hazardous waste activity that requires a hazardous waste treatment permit. (4)

From the federal perspective, they are not:

40 CFR 266.80: If you generate, collect, transport, store, or regenerate lead-acid batteries for reclamation purposes, you may be exempt from certain hazardous waste management requirements.  Alternatively, you may choose to manage your spent lead-acid batteries under the ‘‘Universal Waste’’ rule in 40 CFR part 273.

40 CFR 273.2: A used battery becomes a waste on the date it is discarded (e.g., when sent for reclamation).

Remember how I said hazardous waste regulations are nuanced?  Let's not get into the definition of "discarded" or "core charges."  At some point the used lead-acid battery will need to be reclaimed.  That's what Exide does.  They smelt the lead to make new batteries.  The act of smelting is reclamation.  The reclamation allows the lead to be used again in new batteries.  That's recycling.

EPA says that Universal Waste (lead-acid batteries) that will be sent for recycling, fall under 273.60

(b) The owner or operator of a destination facility that recycles a particular universal waste without storing that universal waste before it is recycled must comply with 40 CFR 261.6(c)(2).

Because Exide stores the batteries, they must do the following in (c)(1):

(c)(1) Owners and operators of facilities that store recyclable materials before they are recycled are regulated under all applicable provisions of subparts A though L, AA, BB, and CC of parts 264 and 265, and under parts 124, 266, 267, 268, and 270 of this chapter and the notification requirements under section 3010 of RCRA, except as provided in paragraph (a) of this section. (The recycling process itself is exempt from regulation except as provided in §261.6(d).)

Note the last sentence?  "The recycling process itself is exempt from regulation except as provided in §261.6(d)"  Because Exide will store the batteries prior to reclamation, they must meet those requirements in 264/265.  In a nutshell, here is what the EPA says:

Spent lead-acid battery reclamation regulations are found in Part 266, Subpart G. Generators, transporters and storers are not subject to regulation under 40 CFR Parts 262 through 266 or Parts 270 or 124 or Section 3010 of RCRA per 40 CFR 266.80(a). However, reclaimers who store batteries prior to reclamation are subject to most facility standards and permit requirements with regard to storage per 40 CFR 261.6(a) and 40 CFR 266.80(b). Generally, the reclamation process itself is exempt from regulation.

261.6(a) states the same thing as (c)(1) above.  266.80(b) is the requirement for lead-acid batteries and a facility like Exide that stores and reclaims "are subject to 40 CFR parts 261, §262.11, and applicable provisions under part 268 [land disposal requirements]."

This leaves the "recycling unit itself" - in this case the smelter - which for lead-acid battery smelting is exempt.

Under 40 CFR 266.100(c), owners or operators of smelting, melting, and refining furnaces that process hazardous wastes solely for metals recovery are conditionally exempt from regulation, except for 40 CFR 266.101 and 266.112, provided they comply with limited requirements set forth in Section 266.100(c)[sic]. (5) (Note: 266.100(c) should be 266.100(d))

266.101: Management prior to burning

266.112: Regulation of residues

266.100(d): owners or operators of lead recovery furnaces that are subject to regulation under the Secondary Lead Smelting NESHAP must comply with the requirements of paragraph (h) of this section.

266.100(h): Starting June 23, 1997, owners or operators of lead recovery furnaces that process hazardous waste for recovery of lead and that are subject to regulation under the Secondary Lead Smelting NESHAP, are conditionally exempt from regulation under this subpart, except for §266.101. To be exempt, an owner or operator must provide a one-time notice to the Director identifying each hazardous waste burned and specifying that the owner or operator claims an exemption under this paragraph. The notice also must state that the waste burned has a total concentration of non-metal compounds listed in part 261, appendix VIII, of this chapter of less than 500 ppm by weight, as fired and as provided in paragraph (d)(2)(i) of this section, or is listed in appendix XI to this part 266.

That's on the federal side of it.  California, a whole 'nother beast if thar ever be one, can ignore all that and be much more stringent.

Which brings us to the 2006 DTSC public notice regarding the Part B permit?  What happened between 2006 and present date?

If they only had a RCRA permit...Part 4

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If they only had a RCRA permit...Part 2

According to the Los Angeles Times article:

Jim Marxen, the agency's top spokesman, said last week that regulators do not have a good explanation for the plant's continued operation without a full permit.

Mr. Marxen goes on to say:

"I don't blame the activists who say we are slow to act," he said. "If that was in my neighborhood, I would say the same thing. ... Ten years ago, when they had hearings on this, there was frustration even then."

In my previous post, I showed that an interim permit or a full permit really does not change anything.  To reiterate, there is very little difference between what an interim status facility does and what they will do when they receive their full Part B permit.

Interim status facilities, such as Exide, operate under the 40 CFR Part 265 standards:

PART 265—INTERIM STATUS STANDARDS FOR OWNERS AND OPERATORS OF HAZARDOUS WASTE TREATMENT, STORAGE, AND DISPOSAL FACILITIES.

This particular standard has a purpose:

(a) The purpose of this part is to establish minimum national standards that define the acceptable management of hazardous waste during the period of interim status and until certification of final closure or, if the facility is subject to post-closure requirements, until post-closure responsibilities are fulfilled.

Here is what the EPA has to say about this difference:

RCRA §3004 requires that EPA develop standards for both existing TSDFs that were immediately subject to regulation at the time the statute was enacted and for facilities that would be built after regulations were established. Congress also mandated that the standards for both types of facilities should only be different where absolutely necessary. To make allowances for existing facilities that would not be able to comply with the full regulatory program immediately, EPA promulgated interim status standards in Part 265.

Let's put this " For decades, the Department of Toxic Substances Control has allowed the plant to operate without the full permit required by federal law" to rest.  The LA Times and the DTSC spokesperson do not appear to understand that there is no difference.  Instead, lets look at why it is 2013 and the Part B Permit that Exide did apply for has still not been approved.

Here is a time line of permiting events for this facility:

The Facility has been used for a variety of metal fabrication and metal recovery operations since 1922. Previous owners have included Morris P. Kirk & Sons, Inc., NL Industries, Gould Inc. and GNB Inc.

Gould Inc. filed a RCRA Part A notification on November 19, 1980, as a treatment and storage facility. This Part A identified storage of spent lead-acid batteries and other lead-bearing material prior to treatment and recycling, and a wastewater treatment system.

Gould Inc. was issued an Interim Status Document (ISD) by the State of California Department of Health Services (DHS), DTSC’s predecessor agency, on December 18, 1981.

The U.S. EPA rescinded the Facility’s Treatment and Storage Facility classification by returning Gould Inc.’s original RCRA Part A application, after Gould eliminated its waste pile, claimed that the smelters do not require a permit, and requested reclassification to generator status.

The Interim Status Document was subsequently rescinded by DHS in 1982.

GNB, Inc. purchased the Facility and filed a revised Part A application on July 5, 1985.

On September 3, 1986, DHS determined that a permit was necessary.

GNB, Inc. submitted the first RCRA Part B application on November 8, 1988.

On August 1, 1992, DTSC received RCRA final authorization from the U.S. EPA to implement the State Hazardous Waste Management Program (HWMP) in lieu of the federal RCRA program. Therefore, a Permit issued by DTSC is considered a RCRA-equivalent Permit.

On December 13, 1999, DTSC approved a Class 2 Interim Status modification for Supplemental Environmental Projects (SEPs) as a result of an enforcement case settlement.

On June 30, 2000, DTSC approved a Class 2 Interim Status modification, for replacement of the Waste Water Treatment Plant and to provide secondary containment.

On January 5, 2001, DTSC approved a Class 1 Interim Status modification, for change of ownership and operational control to Exide Corporation.

On November 16, 2001, DTSC approved a Class 1 Interim Status modification, for a name change from Exide Corporation to Exide Technologies.

Revisions to the Part B Application were submitted over the ensuing years with the latest being on April 17, 2006 and supplemental information on May 2, 2006.

In June of 2006 the Draft Part B goes out for public comment. 

Here is the most current information I could find about the status from DTSC, dated 10/18/2013:

Exide operates under an interim status authorization, and DTSC is reviewing the company’s application for a permit. As part of that review, DTSC could impose additional requirements that would force Exide to spend more money on upgrading the facility. In addition, Exide was required to set aside $10.9 million in a special fund to pay for any costs associated with closing the facility should that happen.

So, Exide is in bankruptcy, which you can than the good folks in Frisco, Texas, for.  That does not explain why from 2006 to October of 2013 the Part B has not been issued.  Here is what the DTSC says on their website for Exide:

DTSC then public noticed a draft Hazardous Waste Facility Permit (Permit), a Health Risk Assessment (HRA) and an Environmental Impact Report (EIR) on July 7, 2006. DTSC received numerous comments on the draft Permit, HRA and EIR.

Based on significant public inquiry and new regulations, significant upgrades were initiated at Exide under the joint oversight of the South Coast Air Quality Management District (SCAQMD) and DTSC. Exide has submitted a new permit application to DTSC which is currently under review by DTSC. 

Disregarding the bankruptcy issues, the time delay appears to be based on no one wanting to bring this thing to closure.  The local community wants the facility shut down.  But the DTSC nor the SCAQMD can shut them down permanently as long as they comply with corrective orders.  Every time they bring something up, Exide sets out to fix it.  There is no reason to delay the Part B permit other than public outcry that will come forth because a permit was approved.

DTSC is in a very bad place with this.  The latest tactic appears to involve going after Exide because the facility poses "an imminent and substantial danger to public health and the environment."

The Stipulation and Order resolves the administrative suspension order that DTSC issued against Exide in April 2013 and resolves a legal action that Exide filed against DTSC in June 2013. The Stipulation and Order sets out conditions that Exide must meet and timelines for completing them. It requires Exide to set aside $7.7 million in a special fund for upgrading the storm water system, reducing arsenic emissions in the air, blood lead testing in the community and sampling dust and soil around the facility. It sets a sliding scale of fines up to $10,000 per day if the conditions are not met. It means that Exide is being closely monitored, and the facility will be made safe or DTSC will shut it down again should the facility pose an imminent and substantial danger to public health and the environment. The Stipulation and Order addresses concerns additional to those posed in the earlier suspension order. The Stipulation and Order is separate from Exide’s application for a permit, which will be decided on its own merits.

As long as Exide commits to fixing the problem, the less reason DTSC has to deny the permit. Once the permit is issued, nothing changes other than the public's understanding that Exide is going to continue operation.

There are two things going on here.  This is speculation on my part.

1. The DTSC keeps them in perpetual interim status to promote the appearance that they could be shut down and to avoid the public's wrath for issuing a permit.
2. Keeping Exide in perpetual interim status benefits both parties and prevents Exide from pursuing a legal challenge.

I suspect that Exide knows that it needs to do what it takes to meet the current requirements in terms of perceived risks.  If the levels of air contaminants are too high then they will put controls in place.  If the stormwater pipes are leaking they will fix them.  This seems to be what is taking place.

As long as the public does not want Exide there in Vernon, DTSC will drag their feet until Exide cries uncle, which is probably in the next year since they also had public problems with their smelter in Frisco, Texas.

I want to move from Exide as a company and look at RCRA permitting for a company that recycles lead acid batteries.

Next post: If they only had a RCRA permit...Part 3

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If they only had a RCRA permit...Part 1

Been busy at work and have ignored my blog...so with that...

The Los Angeles Times had an article pop on my Google News feed yesterday:

Toxic waste watchdog can be glacially slow

It includes a photo with the caption " Protesters rally in October outside Exide Technologies, which has been required to set aside $7.7 million to replace leaking wastewater pipes and further reduce its arsenic emissions."  
Three reporters are credited with writing this article;  Jessica Garrison, Kim Christensen, and Ben Poston.  I am not sure where these three obtained their information for this story, but if I had to guess it was not from the DTSC (Department of Toxic Substances Control ), Exide, or anyone else in the Environmental Business other than those with the designation of "activist."

Maybe the "if it bleeds it leads" model is also in play for writing news articles on environmental issues.  Every photo they use is of protesters, except for the last one which is a really cool photo of a firefighter's arm and shadow while holding a sample.

There is a lot to talk about in this article, but I want to focus on the last part dealing with Exide.  Environmental regulation is complex.  I tell my students to "check their logic at the door" when we begin teaching our three day hazardous waste management class.  Laws and regulations are specific to what they cover and do not cover.  When you get into the environmental arena, it becomes even more convoluted and illogical.

So, if you are going to write about an environmental issue (take note Jessica Garrison, Kim Christensen, and Ben Poston), you need to spend some time understanding the topic.  You need to find the expertise out there to help you write objectively, unless that's not what you were going for with this article.

Hazardous waste requirements are very nuanced, so on the surface things can appear to be wrong, or dangerous, or unlawful.  That is why you attend training classes and consult with those that understand it.  Heck, even we experts get it wrong, but had we been consulted for this story, we would have painted a different picture about what is going on at Exide.

Let's start with this statement:

For decades, the Department of Toxic Substances Control has allowed the plant to operate without the full permit required by federal law. Instead, it has run on "interim status," a temporary designation intended to give companies time to qualify for permits and meet legal standards for safe handling and disposal of toxic materials.

What would a regular ol' Joe reading the LA Times come away with after reading that?  Is it true that for all this time they have not been required to perform safe handling and disposal of toxic materials?

These three reporters seem to be parroting the folks who are out there protesting.  They do not understand that there is almost no difference between the interim status requirements in 40CFR 265 and the full permit requirements in 40CFR 264.  They do not understand that even without an interim or full permit, Exide would meet the definition of a large quantity generator and would be required to meet most of the requirements for an interim status facility.

I lost you with that didn't I?  Too complicated, too many words, no photos of people in masks or with signs.  Boring ol' regulations.  That's what I write about.  Boring stuff in order to paint an accurate picture about what is really going on.  So if you are still reading, let's continue.

The Resource Conservation and Recovery Act (RCRA) is a federal law.  All states had to comply when the EPA's regulations were finalized in 1980.  California, being California (I was born there, educated there, and worked the first part of my environmental career there) set out to run their own RCRA program, getting full authorization in 1992.

I know this because I Googled for information on Exide in California and found this PDF from the DTSC.  After reading it, I became convinced that the three LA Times reporters never bothered to look for information that might paint Exide in a light other than bad.

I found another DTSC PDF that also describes the Exide situation regarding interim status.  Unfortunately, neither of these PDFs explain the nuance.  So I'll try and show why its no big deal for the facility to operate "for decades" under interim status.  That seems to be the crux of the "look how slow DTSC is."

Okay, from this point on, check your logic at the door and go where the regulations take you.

For four years prior to 1980 industry had known that there would be regulations coming out for waste streams deemed to be "hazardous."  The then owners of the Exide facility had been recycling the lead from lead-acid batteries for years prior to these new RCRA regulations.  They knew that the lead in lead-acid batteries was going to make their waste and their operation fall under RCRA.

So in 1980 the company that is now called Exide applied for an interim status permit with the EPA to continue their operation of recycling batteries and smelting lead. 

Let's look at how this permitting  process works:

The Resource Conservation and Recovery Act (RCRA) requires anyone who owns or operates a facility where hazardous waste is treated, stored, or disposed to have a RCRA hazardous waste permit issued by the U.S. Environmental Protection Agency (EPA).

We will come back to this because that requirement gets convoluted when it involves recycling.  According to the EPA:

There are two parts to a RCRA hazardous waste permit application – Part A and Part B.

Part A of the RCRA hazardous waste permit application consists of EPA Form 8700-23 (includes both the RCRA Subtitle C Site Identification Form and the Hazardous Waste Permit Information Form), along with maps, drawings, and photographs

Part B of the RCRA hazardous waste permit application contains detailed, site-specific information. There is no form for the Part B Permit Application; rather, the Part B Permit Application must be submitted in narrative form and contain the information described in applicable sections of 40 CFR 270.14 through 270.27.

That's the permit process in a nutshell.

1980 we get RCRA Regulations and in 1980 the Exide facility (different owner at the time) applies for a permit.  Here is what the EPA says about the interim permit:

Existing hazardous waste management facilities are those hazardous waste treatment, storage, or disposal facilities which were in operation or for which construction had commenced on or before November 19, 1980, or which were in existence on the effective date of the statutory or regulatory amendments that render the facility subject to the requirement to obtain a RCRA permit. RCRA establishes a procedure for obtaining interim status that allows these existing facilities to continue operating until a final hazardous waste permit is issued.

When did the Exide facility submit their interim status application?  November 19, 1980.

Now you need to remember that these were brand spanking new regulations for an agency that had been in existence for a little more than 8 years. Interim status was designed to give the EPA time to work through this process while allowing facilities to keep operating.

What's important to understand here is this statement made by the EPA:

RCRA establishes a procedure for obtaining interim status that allows these existing facilities to continue operating until a final hazardous waste permit is issued.

Here is what the EPA says about interim status:

Facility owners or operators with interim status are treated as having been issued a permit until EPA reviews the RCRA Part B Permit Application and issues a RCRA hazardous waste permit.

With or without a Part B permit, this battery recycling/lead smelting facility was required to meet regulatory standards for the treatments, storage, and disposal of hazardous waste.  But that's not what the three LA Times reporters tell you:

In 1992, soon after the state agency was founded, environmental activists flew to Sacramento and appealed to top officials to make sure the battery plant and similar facilities obtained permits.  

One by one, other facilities did.

Not Exide.

"How is that possible?" asked Jane Williams, executive director of California Communities Against Toxics, a nonprofit her mother helped found in 1989. "It's not like it's some small mom-and-pop facility that we have somehow missed ... Their smokestack can be seen from downtown L.A."

Those three reporters paint a very different picture for the reader then what is really going on.  Let's look at what the DTSC says about the Exide facility in 2006 when the Part B permit was up for public comment:

As part of the environmental impact evaluation of the facility, a Health Risk Assessment was prepared. The risk assessment evaluated potential cancer and non-cancer health effects that could be caused by the facility’s operations. The assessment took into account a variety of factors, including the types and maximum amounts of waste that would be stored and handled at the facility, and all the possible ways people could be exposed (through breathing the air emissions, coming into contact with the soil surrounding the facility, and similar activities).

For cancer, the potential effects from the facility are well within health risk limits.

For non-cancer health risks, the risk assessment evaluated chronic and acute health effects for both the nearby residents and facility workers. The assessment concluded that non-cancer health risks are also well within the state established limits.

"Well within health risk limits" or "Their smokestack can be seen from downtown L.A."

All I ask of folks who write for major news organizations is to write a full and accurate account of what is going on.

Yeah, I can hear what you are thinking, here it is in 2013 and Exide still does not have a Part B permit.  Yeah, that's a bit strange, but I think I have an answer for that.


Next post: If they only had a RCRA permit...Part 2

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Public Sector Employees, Texas, and Confined Space - Part 3

I contact Governor Perry's office and stumped them with my question "Is Governor Bush's 1995 Executive Order still in effect?"

They would get back with me...and they did.  Apparently it was put into Texas Law in the .  I was then told to contact    and they would be able to answer my question more specifically.  I missed his call back, so here I am without a definitive answer.

However, armed with this new information, or at least the path to move forward on. I went back to Google and searched for "Texas state employees compliance with OSHA."

This brought me to the webpage of the Texas Workforce Commission (TWC).  Why my original searches did not show this page, well, is frustrating.  So based on what Governor Perry's office told me, public employee health and safety regulations, at least for us Texas State employees, is under risk, which is under workman's comp.

Source

You can see that I was getting close with my poking around as I had already looked at hazcom.  So what does that tiny print say?

• The state agency in Texas with the greatest authority in the area of workplace safety is the Texas Department of Insurance, the Division of Workers' Compensation of which has enforcement responsibility for the Texas Workers' Compensation Act
• The main workplace safety resource information for Texas is on the TDI Web site. 
• The Workers' Compensation Division's OSHCON Department provides workplace safety and health consultations to Texas employers, including free OSHA compliance assistance.

So what does the Texas Department of Insurance, the Division of Workers' Compensation Chapter 401 of the Texas Labor Code say about having to comply with health and safety regulations or policy for public sector employees?

Let's look at definitions first.  If you recall, the OSHA law excludes public sector employees because state and local entities are not defined as an "employer."  Here is what Texas Chapter 401 says:

"Employer" means, unless otherwise specified, a person who makes a contract of hire, employs one or more employees, and has workers' compensation insurance coverage.  The term includes a governmental entity that self-insures, either individually or collectively.

Okay...now we are getting somewhere.  Since I am not a lawyer, I can't say definitively who is, or who is not covered by that.  What I am going to do is look at it with the same eyes that a public works manager - who is not a lawyer - would use. When I read "The term includes a governmental entity that self-insures, either individually or collectively," I understand that to mean both state and local public entities that employee folks just like me.

I am going to ask if my understanding is correct when I call the TWC guy back this week.  That guy, I have been told, is a lawyer and he works for the TWC.

Getting close...so close...


Next Post: Public Sector Employees, Texas, and Confined Space - Part 4

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Public Sector Employees, Texas, and Confined Space - Part 2

Governor Rick Perry wants me dead!

Well at least that might be the conclusion from reading this guy's blog on the subject of OSHA and public sector employees:

Okay, so maybe Rick Perry does, but George Bush, the guy that was governor before Perry and the second Bush to become President, cared about my health and safety.

Source

I am going to check this week to see if that's still in effect.  Apparently, way back in 1995, Governor George Bush decided that public sector state employees in Texas warrant health and safety protection consideration.  That's his signature and it has the official seal.  Texas does not want me dead!

So what do I know about OSHA-like protection for public sector employees?  I am looking at this from how we do it in Texas, a state without a formal OSHA approved plan.  Here is what Texas Governor George Bush said in his Executive Order:

WHEREAS, state government should lead by example by complying with all applicable federal, and state laws, standards, rules, regulations and guidelines;

What that tells me, or at least how I read it, is that we don't need no stinkin' special rules for protecting state workers in Texas.  We are supposed to live by the rules currently in place.

So, in Texas, me, as a state employee, is protected.  My employer, the Texas A&M University System, is supposed to have a "comprehensive written risk management/safety programs" according to the Executive Order.

Do we have one for entry into a confined space?

The way I write this blog is to ask a question and then in real time look for the answer.  I do this (the vast majority of the time) without knowledge of what the answer will be, and have decided that, good, bad, or indifferent, I will report what I find.  I don't know if we have one, I suspect we do, but I need to check.

And...

Source

Pew!  That would be embarrassing if we did not.  So for me, a state worker, working for the Texas A&M University System, my employer has developed a safety plan for me if I work in a confined space.  That manual tells me this:

It is the policy of Texas A&M University (TAMU) that any individual entering into a confined space on TAMU property will do so in accordance with the procedures outlined in the Confined Space Program and 29CFR1910.146.

So, without OSHA oversight, without specific state regulations for confined space entry in place, Texas has told my employer you need to protect your workers.  And my employer has said, well heck, let's just comply with OSHA, because, you know, they already have confined space requirements, let's not reinvent the wheel!

I started with this question:

Question:  Do public sector employees need to comply with any safety regulations regarding entry into a confined space?

I can answer it now.

Answer:  If by public sector employee you mean a Texas State employee, then yes, we have safety regulations regarding entry into a confined space.

But what about public sector employees who are not state employees but work for a local municipality?

Hmmm...good question.


Public Sector Employees, Texas, and Confined Space - Part 3

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Public Sector Employees, Texas, and Confined Space - Part 1

Question:  Do public sector employees need to comply with any safety regulations regarding entry into a confined space?

Answer: I don't know.

Really?  That's my answer to that question?  "I don't know."

Yeah, that's right.  At this point in time I don't know.  So I am going to find out.

Here is what I understand at this point in my quest:

The protections of the Act are extended to all private sector workers. However, the specific requirements of the Act have created a patchwork of coverage for workers in the public sector. Some of these workers are covered by the Act while others are not.

That's from a document by OSHA called " Evaluating the Status of Occupational Safety and Health
Coverage of State and Local Government Workers in Federal OSHA States."  Texas, the state I work in, is a Federal OSHA state.  That means that we do not have our own OSHA regulations which are known as a "state approved plan." According to OSHA:

There are currently 22 States and jurisdictions operating complete State plans (covering both the private sector and State and local government employees) and 5 - Connecticut, Illinois, New Jersey, New York and the Virgin Islands - which cover public employees only. (Eight other States were approved at one time but subsequently withdrew their programs).

So if only 27 states have rules covering public sector employees, where does that leave guys like me, a Texas State employee?  Why am a I not covered under the same employee safety rules when I do similar jobs, like entering a confined space, trenching and shoring, wearing a respirator, and other hazardous operations, just like my counterparts in the private sector?

Here is what OSHA says about that:

Section 2(b) of the Act states that it is the purpose and policy of Congress “. . . to assure so far as possible every working man and woman in the Nation safe and healthful working conditions and to preserve our human resources.”

Well me and my fellow state employees are "working man and woman" so what part of the word "every" do we not meet?  Here is what OSHA says about that:

...because the definition of an employer in Section 3 of the Act specifically excludes: “. . . the United States or any State or political subdivision of a State . . .,” their workers are not provided the Act’s protections.

Really?  Thanks 1970's congress!  OSHA says

As a result, while all private sector workers are protected under provisions of the Act, all public sector workers are not. Only Section 18(b) State Plan states must provide OSHA protections for public sector workers.

Because Texas is not one of the 27 states with a State Plan I guess we are SOL on having to meet any type of confined space safety requirements.  Pop the top and enter!

No...that can't be right...can it?  Here is what I found out from that OSHA document:

Two states, Alabama and Delaware, had no recognizable occupational safety and health programs for public sector workers at either the state or local government level. These states had no OSH legislation enacted nor Governors’ Executive orders establishing a program comparable to the standards, or providing the protections equivalent to the provisions of Section 18(b) of the OSH Act.

But then I see this:

I'm confused, perplexed, and, well...

You mean to tell me that me and my 936,999 fellow public sector employees are provided no safety and health protection?  That can't be right...can it?


Next post: Part 2

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The source of elevated constituents is speculative, but... - Part 8

Okay, so the yellow dots they used in the graphic really got me thinking that this paper, "An evaluation of water quality in private drinking water wells near natural gas extraction sites in the Barnett Shale Formation" they talked about on the UT Arlington webpage might be a bit slanted against natural gas extraction.

I read their paper with a somewhat open mind to see the "powerful evidence" they had that further study was required because, as the website points out:

Researchers believe the increased presence of metals could be due to a variety of factors including: industrial accidents such as faulty gas well casings; mechanical vibrations from natural gas drilling activity disturbing particles in neglected water well equipment; or the lowering of water tables through drought or the removal of water used for the hydraulic fracturing process.  Any of these scenarios could release dangerous compounds into shallow groundwater.

You will notice that with the exception of drought (which we in Texas have been experiencing) all of the factors they list as the possible culprit for this increase in metals (arsenic) involve natural gas extraction.

They make their case two ways.  First, they sampled groundwater in the Barnett Shale area and ran it for chemicals one would expect to see coming for this type of activity.  Second, they compared the results to what we knew the levels of those contaminants to be prior to gas extraction activities commencing in the area.

The idea here is to show that the groundwater post 1999 is more contaminated then pre-natural gas extraction groundwater samples.

They were able to do this for only arsenic and TDS (although they make a case for the other metals being elevated as well).  Based on this comparison of the ground water now, with the groundwater pre-2000, they present "plausible scenarios" to explain why the metals are elevated, concluding:

At a minimum, these data suggest that private wells located near natural gas wells may be at higher risk for elevated levels of constituents than those located further from natural gas wells.

This before and after is based on:

This comparison shows a significant increase in the mean concentration, maximum detected concentration, and MCL exceedances for As, Se, and Sr in our study area when compared to historical data and previous characterizations of these aquifers.

Like I pointed out in my last post, it is this comparison that forms their conclusion.  So skeptical me asked what the comparison would be if you looked at the pre-2000 historical data and compared it with the post-1999 historical data. So I did.

Running a query on the same dataset they used in the report, I looked at the post-1999 results for arsenic in the groundwater wells in the four counties the Railroad Commission calls "Core Counties."  Wise, Johnson, Denton, and Tarrant are in the heart of all the natural gas wells in the Barnett Shale area.  If there is going to be arsenic contamination due to any of the factors listed in the UTA website, it will show up here.

My query of the dataset showed 170 water samples were analyzed for arsenic after 1999.  Of 170 analytical samples for arsenic, as recently as 2011, only two show any arsenic above >2 ppb.  5.93 ppb and 2.93 ppb.

These 170 analytical reports for arsenic from 48 unique wells within these four core counties.  None of them show the concentration of arsenic reported in the paper.  All of them are in the same geographic area where active natural gas wells are located.

What about the counties of Palo Pinto and Jack where there is only red and yellow dots shown on the graphic?  Not a lot of data for these two counties.  Pre and post is all under 10 ppb.

Not enough data to show a comparison.

So where does this leave me?  My take away is that there is no connection between gas extraction and metals in the groundwater.  Here is why:

1. The absence of BTEX in all the wells UTA sampled rules out "industrial accidents" and "faulty gas well casings" as the cause for an increase in arsenic.
2. The absence of arsenic in the historical wells post 1999 rules out "the lowering of water tables through drought or the removal of water used for the hydraulic fracturing process."

Still, I am faced with the fact that they did find arsenic above the 10 ppb MCL in about a third of the wells they tested.  Why?  This leaves only one possible factor in play:

Mechanical vibrations from natural gas drilling activity disturbing particles in neglected water well equipment

There are a number of issues in play here before I can accept that "plausible factor":

1. Does a neglected well release arsenic due to mechanical vibrations in the area?
2. Why is there arsenic in some wells in the same aquifer and not in others from the same aquifer in the same geographic area?
3. Did the sampling, preservation, and analytical method UTA used bias the results to show a positive result for arsenic?

Here is what I would want to see done first:

1. Re-sample the wells that were positive for arsenic above the MCL utilizing the same protocol used to collect the water samples for the historical data.
2. Analyze those water samples using EPA method 200.8
3. Have the analysis performed by a NELAC accredited laboratory

Doing this would rule out any errors produced by UTA and would allow us to apples with apples compare the arsenic data from the private wells with the arsenic data from the historic wells.  This, in my opinion, would help show a true value of arsenic that we can relate to an MCL and support looking at mechanical vibrations as the culprit if there are a number of wells that actually exceed the MCL

If you got this far, thanks for reading.

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The source of elevated constituents is speculative, but... - Part 7

The UT Arlington webpage describing the study titled "An evaluation of water quality in private drinking water wells near natural gas extraction sites in the Barnett Shale Formation" states this:

Researchers gathered samples from private water wells of varying depth within a 13 county area in or near the Barnett Shale in North Texas over four months in the summer and fall of 2011. Ninety-one samples were drawn from what they termed “active extraction areas,” or areas that had one or more gas wells within a five kilometer radius.

They compared the samples to historical data on water wells in these counties from the Texas Water Development Board groundwater database for 1989-1999, prior to the proliferation of natural gas drilling.

The website states this as one of the results of the study:

Arsenic occurs naturally in the region’s water and was detected in 99 of the 100 samples. But, the concentrations of arsenic were significantly higher in the active extraction areas compared to non-extraction areas and historical data.

The paper states this:

The United States Geological Survey (USGS) sampled arsenic as well as pesticides, nitrates, and volatile organic compounds (VOCs) in drinking water wells, including wells from aquifers overlying the Barnett Shale formation. Using these data and other data from the Texas Water Development Board, Reedy et al. characterized groundwater in the Trinity and Woodbine aquifers as generally good quality with very few exceedances for constituents such as arsenic, selenium, strontium, and barium.

So we have good groundwater to start with.  The paper states that they collected samples and performed analytical tests for certain chemicals of concern.  Then they write:

These data were compared to a historical dataset from the same aquifers prior to the expansion of natural gas extraction activities

And now we have a before and after to make some type of inference.

While our data indicate elevated levels of potentially harmful compounds in private water wells located near natural gas wells, it is important to recognize that there were also a number of private water wells in close proximity to natural gas wells that showed no elevated constituents.

Okay...

This indicates that natural gas extraction activities do not result in systematic contamination of groundwater.

If it did, we would expect to see contaminants in all the wells.  Fair enough.  I concur (for whatever that's worth). So, what's going on?

We suggest that episodic contamination of private water wells could be due to a variety of natural and anthropogenic factors such as the mobilization of naturally occurring constituents into private wells through mechanical disturbances caused by intense drilling activity, reduction of the water table from drought or groundwater withdrawals, and faulty drilling equipment and well casings.

There's that "sandwich effect" I talked about in Part 2.  But wait, there's more...

The geographic locations of elevated constituent levels in our study are consistent with the notion that mechanical disturbance of private water wells and industrial accidents (e.g. equipment failure, faulty well casings, fluid spills,) are more frequent in areas where natural gas extraction is active.

Here is my takeaway when I read this report.

1. The water was low in arsenic and other CoCs before the year 2000
2. Arsenic, in particular, is higher in wells closer to active gas wells.
3. That level of arsenic, in almost a third of the wells sampled, is over the MCL
4. The above MCL level of arsenic now found in the wells happened after the year 1999
5. Mechanical disturbance of private water wells and industrial accidents (e.g. equipment failure, faulty well casings, fluid spills,) are the most probable cause as they were not present before the year 2000.

I think that's a reasonable conclusion that the majority of readers of the report would come away with.  Now let me add this to the mix.  If the level of arsenic detected in the pre-2000 year historical samples did not change after the year 1999, would that impact the "powerful argument" that natural gas drilling and extraction is the culprit?

Let's look at line 389:

...we chose to evaluate the geographic occurrence and absolute concentration changes for these constituents over time by comparing this study’s data against previous characterizations of groundwater in this region from the scientific literature and a large historical dataset from the same region.

The "plausible scenarios to explain our data" is based on a comparison of the historical dataset up to 1999 with what they found in wells from the same area.  Line 393:

This comparison shows a significant increase in the mean concentration, maximum detected concentration, and MCL exceedances for As, Se, and Sr in our study area when compared to historical data and previous characterizations of these aquifers.

So the historical samples showed "x" amount, and their samples showed "x" plus "y" amount, does this lend credibility to the notion that natural gas drilling and extraction plays a part in this?  If that notion is plausible, because there is more "x" now then in 1999, that notion would be void, if the amount of "x" after the year 1999 has not changed.  At least that's where my thinking goes.

The paper tells me that their historical data was derived from the Texas Water Development Board Groundwater Database Website. So I went there.  And like the good little cynical nerd I am, I downloaded the "Entire Groundwater Database" which is an Access Database.

And being the nerdy-type, I know how to use Access.  So I did this:

Nerdy Query I Put Together from the Texas Water Development Board Groundwater Database

Here is what I got from the query.  Please note that I am sorting by "const_val" (I removed descending from the state_well_number).  What you see in the graphic of the results below is the highest value of arsenic reported in the same wells the historical data they used in the report were collected from.  All the other values, including the ones you do not see, are lower than that.

Report from running the nerdy-query.

I limited the query to just the four counties the Railroad Commission calls "Core Counties."  This is where the bulk of the drilling takes place and where the proximity of a gas well to the groundwater well would be closest.

Notice that this query only shows two wells with levels of arsenic above 2 ppb?  All we need to know is how many samples we have post 1999 and how that would compare to the same query pre 2000.

Time to get nerdy.

Next post: Part 8.


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The source of elevated constituents is speculative, but... - Part 6

The paper titled "An evaluation of water quality in private drinking water wells near natural gas extraction sites in the Barnett Shale Formation" states on line 285:

Samples that exceeded the MCL for TDS, arsenic, and selenium were located an average of 1.1 km from the nearest natural gas well. Similarly, the highest values for both strontium and barium were over twice as high in areas less than 2 km from the nearest natural gas well compared to more distant gas wells.

Let's look at the graph with the green, yellow, and red dots.

 Notice that gray shading?  That's all the oil & gas wells in the area.  The Railroad Commission of Texas (RRC) has a web site devoted to the Barnett Shale.  Here is their map.

RRC

Now let's look at the number of wells in the area:

RRC

There are a little shy of 17,000 wells in the area.  That's why there is so much gray in their graphic.  There are four counties where most of these wells exist; Denton, Johnson, Tarrant, and Wise.

The UTA research found that "arsenic, selenium, strontium, barium, and TDS reached their highest concentrations in areas of active extraction in close proximity to natural gas wells."  The source of this arsenic is unknown, but the paper points the reader in the direction of the gas wells as the culprit.

Line 291: The geographic patterns in our data suggest that lowering of the water table during a drought period cannot fully explain these elevated constituent levels.

...and...

Line 293: Concentrations that exceed the MCL occur only in close proximity to natural gas wells suggesting that mechanical disturbances or localized groundwater withdrawals near natural gas wells could play a role in elevated constituent concentrations.

...and...

Line 312: It is also possible that improper handling of waste materials and faulty gas well casings could result in the introduction of these compounds into shallow groundwater

 I think we can rule that last one out due to no BTEX being found in any of the 90 wells they sampled.

So what about the arsenic?  Line 322:

Arsenic showed a significant positive correlation with TDS suggesting that it may be concurrently mobilized into groundwater with TDS during the natural gas extraction process.  Again, mechanical disturbances (high pressure fluid injection, mechanical vibration, etc.) associated with natural gas extraction activities could be the cause of elevated levels of TDS and arsenic.

Now to tie it all together.

• Line 339: Concentrations of arsenic, strontium, and selenium were significantly higher in samples from active extraction areas compared to historical data.
• Line 341: Non-active/reference area samples also showed a significant increase in arsenic compared to historical data.
• Line 342: Both active extraction and non-active/reference areas showed a significant decrease in barium concentrations from historical levels.
• Line 344: Historical TDS concentrations were not significantly different from non-active/reference area concentrations but were significantly higher than active extraction area samples.

And conclude:

Line 348: While we cannot draw definitive conclusions due to the fact that the historical data was collected under different sampling conditions, these data do provide a baseline for comparison to pre-industrial conditions which is generally lacking in studies of this nature.

From my point of view, if "these data were compared to a historical dataset from the same
aquifers prior to the expansion of natural gas extraction activities," then any impact from natural gas drilling would also show up in those wells post-1999.

The paper's general hypothesis is that "the geographic locations of elevated constituent levels in our study are consistent with the notion that mechanical disturbance of private water wells and industrial accidents (e.g. equipment failure, faulty well casings, fluid spills, etc.) are more frequent in areas where natural gas extraction is active."

If that is true, then the same wells used for the historical data should also see an increase in these constituents, in particular, arsenic. The paper is keen to explain finding no contaminants in other wells close to drilling:

While our data indicate elevated levels of potentially harmful compounds in private water wells located near natural gas wells, it is important to recognize that there were also a number of private water wells in close proximity to natural gas wells that showed no elevated constituents.

I am left with this:

Concentrations were significantly higher in active extraction areas compared to reference samples and historical samples.

That historical data they compare it with - the before and after - came about like this:

Historical data for the concentrations of target compounds (except alcohols) in private water well samples from this region were obtained to evaluate their occurrence before the expansion of natural gas extraction activities. This historical dataset is comprised of 330 private drinking water wells from the Trinity, Woodbine, and Nacatoch aquifers sampled over a ten year period (1989 – 1999) before natural gas activities began. Wells were located in the same counties that we sampled in this study.

This got me thinking.  If the arsenic is elevate due to proximity to a gas well, and "mechanical disturbances (high pressure fluid injection, mechanical vibration, etc.) associated with natural gas extraction activities could be the cause of elevated levels of TDS and arsenic," we would expect to see elevated arsenic in the wells from which the historical data was collected.

You know, kind of a goose and gander type thinking.  I chose Tarrant County to look at since there are a lot of gas wells there and it had a nice cluster of red dots indicating arsenic above the MCL.

The paper cites the Texas Water Development Board Groundwater Database Website as where they got this historical data.  So I went there, scrolled down to "Tarrant County" and went looking for a groundwater well that was in this area.  I then clicked on the "Infrequent Constituent Report." which is where they obtained the pre-1999 data.  I then looked for a water well in the vicinity of the red dots.

Using the "Wells in TWBD Groundwater Database-Texas website, I found a few wells that had post-1999 data.  325103, 325104, and 325102.

Source

I then went to the Railroad Commission's website and searched to see if there were any gas wells in the area.

Source

So looking at groundwater well 3205103 you can see that it is less than 1 km from gas wells.

I then went back to the "Infrequent Constituent Report" and looked at the most recent analysis on arsenic:

Okay, that's just one well.  Look at the green dots in the graphic!  Remember the authors tell us:

...it is important to recognize that there were also a number of private water wells in close proximity to natural gas wells that showed no elevated constituents.

True that, but when I look at the historical data post-1999, I find nothing to support the hypothesis "suggesting that mechanical disturbances or localized groundwater withdrawals near natural gas wells could play a role in elevated constituent concentrations."

So what gives?  Why did they find arsenic above the MCL in 29 of 90 wells they sampled?


Next post: Part 7

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The source of elevated constituents is speculative, but... - Part 5

Without BTEX and methanol, the "powerful argument for continued research” Dr. Fontenot states on the the UT Arlington webpage describing their study titled "An evaluation of water quality in private drinking water wells near natural gas extraction sites in the Barnett Shale Formation" becomes less persuasive.

The paper concludes:

At a minimum, these data suggest that private wells located near natural gas wells may be at higher risk for elevated levels of constituents than those located further from natural gas wells.

No BTEX and methanol in these 92 wells would support the claim that the drilling fluids (fracturing) used are not entering into the ground water.

Based on the graphs they show:

I am in the process of looking at the data Dr. Fontenot sent.  That's going to take me a bit to get into.  Still, looking at these graphs, there are a lot of data points above the threshold (MCL), for arsenic in particular.

What does the paper say about all of this, and does the data support their conclusion?

Line 148:

Water wells [sampled] were overwhelmingly used for drinking water in rural areas without public drinking water systems (n = 82). The remaining wells were used to irrigate private lawns or provide drinking water for livestock (n = 18). To avoid contamination from pesticides, we did not sample water wells that were used for irrigating large agricultural crops.

Line 161:

Four duplicate water samples were collected in 40 mL glass vials without headspace and held at 4ºC during transport to The University of Texas at Arlington for chemical analyses. Because the objective of this study was to assess potential exposure risks of drinking water from wells in this region, we chose not to use filtration and acidification techniques. This allowed us to obtain samples representing the quality of water our participants would consume, as well as increased versatility in the number of constituents that could be probed by analytical techniques.

Okay...that could be problematic.  If you are going to compare a result to a threshold, you need to collect the sample and analyze it in a particular way.

Line 167:

We acknowledge that foregoing filtration and acidification can introduce a negative bias into metals analysis; however, this would result in a conservative underestimation of concentrations. Furthermore, the MCL values for drinking water are based on unfiltered samples that have not been acidified.

I am going to assume that the μg/L they report represent the amount of contaminant that would be consumed.  I do want to address this issue later because it brings in uncertainty which works against considering their "powerful argument."

If the MCL is the threshold they are using to denote the water is not impacted (ignoring the yellow and green coloring scheme they used), then the water should be tested the exact same way that drinking water samples are tested for these contaminants.

I am unsure what the statement "Furthermore, the MCL values for drinking water are based on unfiltered samples that have not been acidified," is based on (I see the citation, not sure why they conclude that to be true).  Here is what I know to be true about sampling arsenic in drinking water.

Source: EPA

The analytical method used by the paper is described as:

Chemical analyses were conducted using gas chromatography mass spectrometry (GC-MS), headspace-gas chromatography (HS-GC), and inductively coupled plasma-mass spectrometry (ICP-MS).

So if ICP-MS was used, EPA method 200.8 should have been used for the arsenic sample.  Footnote number 3 reads:

"Methods for the Determination of Metals in Environmental Samples - Supplement I," EPA-600/R-94-111, May 1994. Available at NTIS, PB 94-184942

In this same EPA document, they also show a table for the preservation of the sample:

Source: EPA

Here is what EPA Method 200.8 says about the sample:

This method provides procedures for determination of dissolved elements in ground waters, surface waters and drinking water.

and...

Dissolved elements are determined after suitable filtration and acid preservation.  In order to reduce potential interferences, dissolved solids should not exceed 0.2% (w/v) (Section 4.1.4).

And here is what the regulation in 40 CFR says:

I am not sure where they came to understand that "Furthermore, the MCL values for drinking water are based on unfiltered samples that have not been acidified," but that's not my take on it.

Nonetheless, they found elevated levels of arsenic in a number of the wells they sampled.  The other three metals, not so much.  I look at the data in their graph and ask "why?"

Here is what the paper says on line 259:

These constituent concentrations could be due to mechanisms other than contamination of aquifers with fluids used in natural gas extraction. For example, lowering of the water table can lead to changes in pH that cause desorption of arsenic and selenium from iron oxide complexes or mobilization of arsenic through pyrite oxidation.

The paper then goes on to say on line 267:

While the regional water table has not decreased dramatically in the last ten years, rural areas with high water withdrawal rates and/or withdrawal of large amounts of groundwater for use in hydraulic fracturing could lead to localized lowering of the water table.

...and then on line 273:

Additionally, pyrite is not found at high levels in these aquifers so it is an unlikely source of arsenic.

 In other words, the lowering of the water table could be the culprit, but the water table has not decreased, ...but it could decrease if the water is pumped for hydraulic fracturing, which would lower the table and release the arsenic from the iron pyrite.  But...there is low pyrite, so the arsenic cant be coming from that, and:

Given the low mobility of applied arsenic and the fact that none of our samples were collected from private wells in or adjacent to crop fields, we find agricultural arsenic introduction is unlikely to be the source of elevated arsenic concentrations.

Which leads them to say this on line 234:

Moreover, if agriculture were the cause of elevated arsenic levels, then concentrations in the historical data would likely have been high as well and we found no evidence of this.

So...because they find arsenic in the samples, and the historical data does not show arsenic, what changed after 1999?

This historical dataset is comprised of 330 private drinking water wells from the Trinity, Woodbine, and Nacatoch aquifers sampled over a ten year period (1989 – 1999) before natural gas activities began.

So...no arsenic in the historical dataset and arsenic in the current samples means that the arsenic is getting into the water most likely from natural gas activities.

That would be how I read their results and findings.  Seems pretty cut and dry, that is, until you look at the historical data after 1999.


Next post, Part 6


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