WARREN - The Ohio Department of Natural Resources Tuesday finally accepted Patriot Water Treatment's invitation to visit the business.
Patriot owner Andrew Blocksom said he has been inviting representatives from that agency and the Ohio Environmental Protection Agency to tour the site with him since the business opened and the controversy surrounding its brine disposal began last year.
The debate continues over Patriot's method of pre-treating natural gas drilling wastewater, called brine, before sending it to Warren's Water pollution Control Center for further treatment and disposal into the Mahoning River.
This week, the ODNR inspector told them he was at Patriot under the direction of ODNR Management, Patriot's attorney, April Bott of Bott Law Group in Dublin, said.
The visit came following a ruling last week by the Environmental Review Appeals Commission, or ERAC, that made it clear that brine disposal must solely be regulated by ODNR, agency Communications Director Carlo LoParro said Wednesday.
Despite the ERAC ruling, which Patriot has viewed as favorable to their operations, LoParro said ODNR maintains that the frack fluid that Patriot treats must be disposed of in a class II injection well or Patriot must apply for a new technology permit from ODNR.
The ruling, which came last week, determined that OEPA's bid to ban Warren from accepting the brine through an amended permit was done unlawfully and that OEPA director Scott Nally was outside his authority in his attempts to enforce a section of Ohio Revised Code that specifically places brine disposal under the authority of ODNR.
This week's visit by ODNR to the Warren plant was significant for Blocksom because he said he has been inviting officials to tour the plant for nearly a year.
In November, Chris Abbruzzese, a spokesman for the OEPA, said Attorney General Mike DeWine's ruling that the permits for Patriot and Warren were issued illegally was consistent with the OEPA's determination that brine waste should not be handled by facilities like Patriot without certain "innovative" technologies in place.
Blocksom countered, saying his facility was in fact innovative, and neither agency had bothered to look for themselves.
"Neither the attorney general nor OEPA Director Scott Nally have ever set foot in our facility, so we feel they are unable to understand or assess what we do. Patriot's process is the first of its kind in Ohio and therefore, by definition, innovative," he said at the time.
Bott said that during the deposition and testimony phases of the ERAC hearings, both the current and former chiefs of ODNR testified that no record of noncompliance exists against Patriot.
Copies of deposition testimony reveal this to be true up through April 26, when current Chief Rick Simmers testified that Patriot has never been found in violation by ODNR.
Blocksom said his company has discharged roughly 28,000 gallons of the treated brine through Warren and no one from ODNR has ever shown up or said a word about it. He said that ODNR charges an injection well disposal fee of $1 per barrel of brine that comes from out of state, which is where much of Blocksom's business comes from.
In order to obtain a new technology permit from ODNR, Patriot would have to demonstrate that its press can convert the fluid into drinkable water prior to disposal into any waters of the state.
Dan Tierney, a spokesman for the Ohio Attorney General's Office, said Wednesday that the attorney general agrees with the OEPA's interpretation of the ERAC ruling, in that ERAC never specified the application of the brine law or ODNR's authority.
"The short answer is that the ERAC ruling does not change the fact that the permits do not authorize Patriot or Warren to dispose of brine waste in any manner other than what is specified under the law."
That law says brine can be disposed of in injection wells, through surface spreading for dust and ice control, or by any manner approved of by the chief of the ODNR Division of Oil and Gas Resources Management.
Patriot has long contended and the ERAC ruling upholds through testimony that the chief of Oil and Gas at the time, John Husted, deferred his authority on Patriot to OEPA because he believed the matter fell under issues of water quality standards, strictly under OEPA's jurisdiction.
Tierney said any enforcement decisions now would be left up to the OEPA and the attorney general's office would offer legal support.
But the ERAC ruling and Ohio law place enforcement of brine law outside OEPA's authority.
"EPA's on the sideline," Bott said. "There are two permits that have been issued and we're following them. The AG can only enforce what EPA has jurisdiction to enforce. OEPA's opinion on a statute that does not apply to them is just that, an opinion."
Bott said also that Husted revealed during testimony that he approved the method and he said that OEPA was advancing Patriot's particular method of brine disposal. She said she wants to know why ODNR is showing up now and why the AG's office let the matter go all the way to trial if they ultimately knew or believed it to be under ODNR's authority and not OEPA's.