re: proposed 4k industrial fracking Wastewater barge construction in Martin’s Ferry, ohio
Our Comments
United States Army Corps of Engineers
ATTN: CELRP-RG 2020- 78
Public Notice No. 20-07
1000 Liberty Avenue
Pittsburgh, PA 15222-4186
Via email to George Brkovich, george.r.brkovich@usace.army.mil
RE: Comments of FreshWater Accountability Project in opposition to Permit Application #CELRP-RG 2020-78 (4K Industrial Park LLC)
Dear Mr. Brkovich:
On behalf of FreshWater Accountability Project, I am respectfully submitting comments in opposition to the U.S. Army Corps of Engineers’ (“USACE” or “Corps”) issuance of a permit under Section 10 of the Rivers and Harbors Act of 1899 (“Section 10 permit”) to 4K Industrial Park LLC (“4K Industrial Park” or “4K facility”), purportedly to construct and operate a barge and pipeline facility in Martins Ferry, Ohio. Freshwater Accountability Project is a nonprofit organization with a mission to preserve freshwater supplies, is dedicated to promoting health by protecting the environment in Ohio, and has members located throughout the state of Ohio, including members along the Ohio River who will be directly affected by the proposed 4K facility. For the many reasons detailed herein, we request, first and foremost, that USACE deny 4K Industrial Park’s application, but at the very least, the Corps should provide a public hearing, extend the public comment period, and prepare an Environmental Impact Statement under NEPA.
1. The Permit Should Be Denied As Detrimental To The Public Interest.
Pursuant to Section 10 of the Rivers and Harbors Act and the regulations promulgated thereunder, the Corps should deny the requested permit. A proper review of the barge terminal proposed by 4K Industrial Park reveals that its detriments far outweigh its benefits due to very serious concerns about drinking water contamination, the increase in the disposal of fracked waste in the surrounding community, increased air pollution, and damaging impacts of increased flooding. Approving the permit would be extremely detrimental to the affected public interest.
The proposed barge dock is in a superfund location with industries that are handling toxic, radioactive frack waste that is also laden with unknown, “proprietary” chemicals. Adding barge loading/unloading to 4K’s potential hazards merely increases the risk of damage to human health and the environment. If there is an accidental release of the waste that is being handled by 4K or Austin Masters, the potential risk of harm from radium 226 and 228 would be immeasurable, since such material is odorless and tasteless, yet very deadly. The unknown, “proprietary” chemicals that would be loaded and unloaded could also cause a huge problem for people who get their drinking water from the Ohio River because no one would know what is actually released. The proprietary chemicals in fracking waste could be some of the most poisonous chemicals, but the public does not know.
The 4K Facility is proposed for the banks of the Ohio River in Martins Ferry, Ohio, and located a mere 1.2 river miles upstream from the city of Wheeling, West Virginia’s drinking water intake and approximately 3,000 feet south of Martin Ferry’s public drinking water well field. The 4K Industrial Project Public Notice provides no details on the types of “fluids from the Gas and Oil Markets” that 4K Industrial intends to receive from the 4K Facility specifically. However, 4K Industrial Park’s Radiation Protection Plan on file with the Ohio Department of Health and other 4K documents suggest that 4K Industrial Park’s wastewater operations are focused on Shale Gas Extraction Waste Water (“SGEWW”). Other types of fluids from the Gas and Oil Markets could potentially include wastewater from “traditional” oil and gas wells. 4K Industrial Park’s Application for the Facility states that the “types and amounts [of fluids] may be expanded according to market demands and conditions.” 4K Industrial Park’s Application leaves open the possibility that the Facility will accept both SGEWW and legacy fluids. While both SGEWW and legacy waste carry heavy contaminant loads, including radioactive isotopes, SGEWW can have higher radioactivity levels, presenting unique public health and environmental concerns. See Declaration of Marvin Resnikoff, attached to Comments filed by Concerned Ohio River Residents (“CORR”), April 30, 2020.
In determining whether to issue a Section 10 permit, USACE must evaluate “the probable impacts, including cumulative impacts, of the proposed activity and its intended use on the public interest.” 33 C.F.R. §320.4(a)(1). Any benefits that can reasonably be expected from the proposal must be balanced against its “reasonably foreseeable detriments.” All factors that may be relevant to the proposal must be considered, including their cumulative effects. These factors may include: “conservation, economics, aesthetics, general environmental concerns, wetlands, historic properties, fish and wildlife values, flood hazards, floodplain values, land use, navigation, shore erosion and accretion, recreation, water supply and conservation, water quality, energy needs, safety, food and fiber production, mineral needs, considerations of property ownership and, in general, the needs and welfare of the people.”
a. The Project poses serious risks to public drinking water sources.
Recurring spills along the Ohio River present one of the highest risks from transport of bulk hazardous liquids on the river and are a major concern should the proposed facility be permitted. For example, the Ohio River Valley Sanitation Commission (“ORSANCO”) reported 227 and 297 spills in 2016 and 2017, respectively. These spills were documented along every 50 river mile (“RM”) range of the Ohio River, including major tributaries, suggesting that no stretch of the river is safe from spills. Water utility companies on the Ohio River have expressed serious concerns and strong opposition to proposals to ship SGEWW on the Ohio River. See Public Comments submitted on U.S. Coast Guard’s withdrawn proposal to streamline SGEWW barge transport permitting. “Will Ohio River Carry Fracking Water?,” Courier Journal, https://www.courier-journal.com/story/money/2014/01/16/will-ohio-river-carry-fracking-waste/4521683/.
Spills in this area are a particular threat to the drinking water supply for Wheeling, West Virginia; Martins Ferry, Ohio; and Bridgeport, Ohio. Wheeling’s water intake is located only 1.2 miles downstream of the proposed 4K Facility and is already vulnerable to any contamination on the Ohio River. See ORSANCO, Biennial Assessment of Ohio River Water Quality Conditions (2012) at 52 and CONSUMER CONFIDENCE REPORT 2018 (CCR), (2019), at https://www.wheelingwv.gov/media/Water/CCR%20Files/CCR_2018_scanned.pdf. Martins Ferry relies on groundwater that is highly susceptible to contamination; its freshwater aquifer is relatively shallow (approximately 30 feet), lacks a protective layer of clay or shale overlying the aquifer, and already contains significant contaminant sources due to the proximity of businesses within aquifer boundaries. See DRINKING WATER QUALITY REPORT FOR 2017, (2018), http://www.martinsferry.org/wp-content/uploads/2018/03/2017CCR.pdf. Like Martin’s Ferry, Bridgeport relies on a groundwater supply that is highly susceptible from contamination, due to its shallow (less than 25 feet) aquifer, and the presence of significant contamination in the source water area, including existing contamination from petroleum production and radioactive contaminants that may be the result of oil and gas production materials. See BELMONT COUNTY WATER AND SEWER DISTRICT – BRIDGEPORT CONNECTION, DRINKING WATER CONSUMER CONFIDENCE REPORT FOR 2017. According to Ohio EPA, the Ohio River itself “may provide a direct pathway for spilled chemicals, nitrates, and pesticides from the ground surface to the aquifer” relied on by Ohio River communities. See OHIO EPA, DRINKING WATER SOURCE ASSESSMENT FOR THE VILLAGE OF BRIDGEPORT (Rev. February 2014). A spill from the 4K Facility or barges traveling to and from the facility would be a serious event, potentially contaminating the Ohio River for miles downstream.
Permitting a facility that will add traffic to an area that already experiences spills is a threat to public drinking water supplies, especially considering the hazardous and radioactive nature of the transported materials. Hazardous liquids spill from O&G waste fluids along this stretch of the river and/or in the act of loading/offloading at Martins Ferry has the potential to threaten the health of local populations already burdened by highly susceptible drinking water sources.
b. Water quality implications of an oil and gas waste processing facility require USACE review under 33 C.F.R. §320.4.
The proposed activity may adversely affect the quality of waters of the United States and therefore must be evaluated for compliance with effluent limitations and water quality standards, during the construction and operation of the activity. However, Ohio EPA cannot be relied upon to provide this analysis because Ohio Department of Natural Resources (“ODNR”) has sole and exclusive jurisdiction over oil and gas waste disposal facilities in the state. Ohio Rev. Code §1509.02. This has led to ODNR overseeing all aspects oil and gas waste disposal in Ohio. Without federal review, the impact on state water quality is unlikely to be assessed through the permitting process outlined in the Public Notice. USACE must conduct the requisite water quality review that will otherwise not be completed.
The problematic nature of ODNR’s oversight of oil and gas waste facilities is demonstrated by the agency’s quarterly inspection reports of the facility. These reports show 4K Industrial Park’s continued difficulties in managing its stormwater, including observed oil sheen on stormwater surfaces and darkly colored stormwater at the facility. Despite these issues, Ohio EPA has left the facility to the oversight of ODNR, which has done nothing to address stormwater issues and which lacks authority under the Clean Water Act to provide a Water Quality Certification for the proposed Facility.
2. Request for Public Hearing
We request that a public hearing be held for the surrounding community and the general public to provide input on the proposed 4K Facility. Pursuant to 33 CFR 327.4(b), a request for a public hearing must be granted by USACE unless the district engineer determines that the issues raised in the request are insubstantial or there is otherwise no valid interest to be served by a hearing. “In case of doubt, a public hearing shall be held.” 33 C.F.R. §327.4(c). The 4K Facility would provide a new conduit for fracking wastewater to travel on the Ohio River and into the state of Ohio from throughout the region and beyond. For the reasons described herein, the 4K Facility poses serious risks to public health and the environment, and thus raises substantial concerns warranting a public hearing.
Given the ongoing COVID-19 pandemic, we request that an in-person public hearing be held as soon as public gatherings are again possible. The surrounding community includes a large number of individuals without reliable access to the internet or who lack the ability to effectively participate in telephonic hearings. Access to reliable internet and assistance in telephonic participation has been further curtailed due to COVID-19 precautions. Therefore, to allow for meaningful public input on the application and the Corps’ public interest review, a public hearing must be held in-person and not virtually.
3. Request for 90-Day Extension of time to Comment
We request that USACE extend the comment period by 90-days to provide adequate time for public participation in USACE's decision-making process. USACE released the Public Notice March 31, 2020, amidst the COVID-19 public health crisis, shortly after Ohio had issued its stay at home directive, when the public was grappling with constantly changing conditions associated with COVID-19. Despite these demanding and highly unusual circumstances, USACE provided only 30 days for the public to comment on 4K Industrial Park's application. Given the exceptional circumstances and the significance of the proposed 4K Facility, USACE should extend the comment period by 90-days to ensure the public has a reasonable amount of time to consider 4K Industrial Park's application and provide meaningful comments.
4. The Project Requires The Preparation Of An Environmental Impact Statement (EIS) Under The National Environmental Policy Act (NEPA)
The Public Notice states that information collected during the comment period will be used in the preparation of an Environmental Assessment and/or an Environmental Impact Statement pursuant to the National Environmental Policy Act ("NEPA"). NEPA compels "federal agencies to take a hard and honest look at the environmental consequences of their decisions." American Rivers v. FERC, 895 F.3d 32, 49 (D.C. Cir. 2018). To satisfy this "hard look" requirement, the Corps must prepare an EIS for any action "significantly affecting the quality of the human environment." 42 U.S.C. §4332(2)(C). This project implicates each of the NEPA criteria requiring an EIS:
a. The proposed project will negatively affect public health and safety.
Fluids from oil and gas (O&G) waste can include leachate as well as any type of wastewater such as flowback, produced water, brine, and effluent from treatment facilities. Leachate forms when rainwater leaches chemicals and constituents from solid oil and/or gas waste disposed of in a landfill. O&G wastewaters contain varying amounts of salts, heavy metals, hydrocarbons, carcinogens, and naturally-occurring radioactive material (NORM). See MELISSA A. TROUTMAN, NADIA STEINZOR & BRUCE BAIZEL, Still wasting away: The failure to safely manage oil and gas waste continues (2019), https://earthworks.org/cms/assets/uploads/2019/06/National-Phase-1_WastingAway_2.0-5-2019.pdf. Radium content in production and flowback waters can range between 10,000 to 26,000 picocuries per liter (pCi/L).
Because there is no information provided about the exact types of fluids this proposed facility would be handling from barge transfers, any of the fluids listed above could present severe public health risks and environmental harm. Examples of negative health effects from ingestion, dermal, and inhalation exposure to flowback water contaminants such as aluminum, barium, dibromochloromethane, and heptachlor include neurobehavioral alterations, gastroenteritis, upper respiratory system effects, nervous system disorders, liver and kidney disease, liver damage, and reproductive system dysfunction. See Noura Abualfaraj, Patrick Gurian & Mira Olson, Assessing residential exposure risk from spills of flowback water from Marcellus shale hydraulic fracturing activity, 15 INT. J. ENVIRON. RES. PUBLIC. HEALTH 727 (2018). Radioactivity is another major concern and danger posed to public health in any handling of or contamination from O&G waste fluids. Exposure to technologically enhanced naturally occurring radioactive materials (TENORM) can lead to serious health issues such as leukemia; cancers of the lung, stomach, esophagus, thyroid; harm to the nervous system; and genetic abnormalities. See CHPNY & PSR, Compendium of scientific, medical, and media findings demonstrating risks and harms of fracking (unconventional gas and oil extraction), sixth edition (2019), https://www.psr.org/wp-content/uploads/2019/06/compendium-6.pdf; Khalid AL Nabhani, Faisal Khan & Ming Yang, Technologically Enhanced Naturally Occurring Radioactive Materials in oil and gas production: A silent killer, 99 PROCESS SAF. ENVIRON. PROT. 237–247 (2016).
b. The effects on the human environment are likely to be very controversial.
The effects on the quality of the human environment are likely to be very controversial where “substantial dispute exists as to the size, nature, or effect of the major federal action rather than to the existence of opposition to a use.” Standing Rock Sioux Tribe v. U.S. Army Corps of Engineers, 2020 WL 1441923 (D.C. Cir. 2020), citing Town of Cave Creek v. FAA, 325 F.3d 320, 331 (D.C. Cir. 2003) (quoting Found. for N. Am. Wild Sheep v. USDA, 681 F.2d 1172, 1182 (9th Cir. 1982)). The Public Notice provided by USACE includes virtually no information on the anticipated environmental impact of the project and describes the 4K Facility in a manner that attempts to diminish the potential for environmental impacts.
As an example, 4K Industrial states that it will expand tank capacity at the existing site in addition to constructing the 4K Facility. The existing EQ tank and clarifier tanks are uncovered. According to experts, inhalation of radon gas would increase the likelihood of lung cancer to local residents. Further, 4K’s existing radiation plan includes no monitoring plan for radon gas. USACE’s Public Notice includes no indication that it will consider such impacts from increased wastewater loads received at the Facility.
As another example, the Public Notice does not indicate that USACE intends to consider the impact of “processed” oil and gas waste leaving the 4K Industrial Facility. From the application materials, the chemical operation of the 4K Facility is far from clear, making it possible that radioactivity levels would remain high in materials leaving the Facility. The Public Notice does not indicate that USACE intends to assess the impact of radioactive materials transporting regularly in and out of the 4K Facility.
c. The action would establish a harmful precedent for the future.
There are currently no known transload facilities for SGEWW on the Ohio River. Consequently, this permitting process would establish precedent for future permitting of similar facilities along the Ohio River. Ohio is presently the primary waste receptacle for Appalachian SGEWW. Data analyzed by FracTracker Alliance demonstrates that in Ohio alone, demand for freshwater used in fracking operations has increased steadily by approximately 16% per year (or 693 million gallons per year) since 2010. Ohio’s SGEWW disposal rates show a similar trend with Ohio’s twenty most active disposal wells showing an annual increase of 17-18% in SGEWW accepted between 2010 and 2018. See Ted Auch, FrackTracker Alliance, The Hidden Inefficiencies and Environmental Costs of Fracking in Ohio (January 13, 2020), https://www.fractracker.org/2020/01/hidden-inefficiencies-and-environmental-costs-of-fracking-in-ohio/. The recent increase in Class II wastewater disposal applications with the Ohio Department of Natural Resources suggests the state is preparing for continued increases in SGEWW disposal in Ohio. In the last two months, three public notices for oil and gas waste transload facilities have been sprung on Ohio communities located on the Ohio River. The impact of permitting the 4K Facility requires the preparation of an environmental impact statement.
d. The action has significant cumulative impacts.
While the Public Notice describes the construction of a 4K Facility, the proposed action also causes cumulative impact due to increased barge traffic carrying SGEWW to and from Martins Ferry, Ohio, increases in SGEWW received into Martins Ferry, Ohio, and increases in “processed” SGEWW leaving Martins Ferry for the Ohio River. All of these impacts must be considered in assessing the Project’s intensity and impact on the human environment.
Further, the project is part of a larger network of drilling disposal activities. In addition to 4K Industrial Park’s own oil and gas wastewater processing facility, the adjacent Austin Masters facility accepts solids and TENORM materials from 4K Industrial Park for the final disposal in deep injection wells and transportation methods for reuse in additional hydraulic fracturing operations. The cumulative impact of this drilling waste network has significant effects on the human environment through risks of spills, migration into storm and groundwater through standard operations, air pollution emissions, and hazardous and radioactive waste transport and disposal.
e. The action threatens violation of Federal, State, and local law.
Currently, it is unclear whether U.S. Coast Guard (“USCG”) will authorize the transport of SGEWW by barge on the Ohio River in the manner 4K Industrial Park proposes. SGEWW is an “unlisted cargo” that may not be carried without specific permission from the USCG. USCG has acknowledged that “fracking produces large amounts of SGEWW, some of which may contain hazardous materials including radioactive isotopes,” and has stated that “transport of SGEWW by vessel falls under the Coast Guard’s existing regulations for bulk liquid hazardous material and requires specific, case-by-case permission.” See Carriage of Conditionally Permitted Shale Gas Extraction Waste Water in Bulk, 81 FR 8976-03 (Feb., 23, 2016).
The matter of transporting SGEWW on the Ohio River is an issue of significant public interest. USCG’s proposal in 2013 to streamline the SGEWW permitting process received 70,115 public comments, almost all in opposition to the proposal due to environmental, safety, and public health concerns. USCG ultimately withdrew the proposal in 2016, stating they would instead consider the environmental impacts of each request to ship SGEWW by barge on a case-by-case basis under existing USCG regulations.
USACE’s past permitting of a similar facility, the GreenHunter facility proposed for Meigs County, Ohio, accounted for the potential conflict with USCG by specifically prohibiting “the offloading of SGEWW generated from horizontal fracking operations” and requiring that the facility request and receive a modification to their Department of Army permit if they receive USGC approval. See Notice of Permit Authorization, 2013-848-OHR. If USACE issues a permit to the 4K Industrial Facility, USACE should include a comparable provision prohibiting the offloading of SGEWW.
Conclusion
For the reasons described above, we request that USACE deny 4K Industrial Park’s application for the Martin’s Ferry Facility. We further request that USACE provide a public hearing on 4k Industrial Park’s application, extend the public comment period by 90-days to provide adequate time for public participation in the decision-making process, and issue an Environmental Assessment or Environmental Impact Statement.
Sincerely,
John A. Heer, Esq.
Staff Attorney
Fair Shake Environmental Legal Services
The U.S. Army Corps of Engineers is looking for the public to express its views on this facility. It is accepting comments until April 30, 2020.
What to do next:
Feel free to use our comment as you wish. Just make sure to submit to the proper Army Corps of Engineers staff member.
Who to send comments to:
Comments should be addressed to George Brkovich, george.r.brkovich@usace.army.mil and must include the Public Notice No. 20-07.
Also include the following recipients: tyler.j.bintrim@usace.army.mil & william.w.russell@uscg.mil
How should I send them:
Send your comments via email. It’s best to send them as an attachment and in the body of the email as some email services don’t get attachments.
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Further research
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