DSHW-2025-001644

MARTIN K. BANKS ATTORNEY AT LAW 101 SOUTH 200 EAST, SUITE 700 SALT LAKE CITY, UTAH 84111 [e-mail] [phone]

Via Email & Regular Mail March 24, 2025
Douglas J. Hansen, Director Utah Division of Waste Management and Radiation Control Utah Department of Environmental Quality
Attn: Bryan Watt Nathan Nicolodemos PO Box 144880 Salt Lake City, UT 84114-4880 [e-mail]
Re: Public Comments on E&P Temporary Permit (EEI’s Application) Dear Director:
In 2019, the Utah Legislature made changes to the Solid and Hazardous Waste Act, Utah Code Ann. § 19-6-101 et seq., which required the jurisdiction over the disposal of Oil and Gas Exploration and Production (“E&P”) waste to transition from the Department of Natural Resources’ Division of Oil, Gas, and Mining (“DOGM”) to the Department of Environmental Quality’s Division of Waste Management and Radiation Control (“DWMRC”). In preparation
for this regulatory transition, DWMRC proposed a temporary permitting mechanism for existing E&P waste facilities. The associated implementing rules provide that the Director of DWMRC may issue temporary permits for the purposes of facilitating the owners’ or operators’ transition from regulation under DOGM and Utah Admin. Code R649-9 to regulation under DWMRC and Utah Admin. Code R315-321 or R315-322.

Environmental Energy Innovations LLC (“EEI”) has submitted an application for a E&P Waste Facility Temporary Permit (“Application”), which DWMRC has noticed for public comment. The comments below prepared by this law firm are submitted on behalf of our client Integrated Water Management, LLC (“IWM”), and relate to EEI’s Application.

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COMMENTS
1) The Director is Prohibited Under S.B. 159 from Approving EEI’s Operation Plan or Temporary Permit. In its 2025 General Session, the Utah State Legislature’s passed S.B. 159, which provides various amendments to Utah Code Ann. § 19-6-108, relating to the operation plans and permits
for nonhazardous solid waste facilities, including class VII landfills for the treatment or disposal
of E&P waste. Section (12) of S.B. 159 provides as follows: (a) The director may not approve an operation plan or permit for a nonhazardous solid waste class VII landfill facility unless, based on the application, the operation plan and
permit contain engineering plans and specifications for cell design that includes: (i) an
impervious synthetic liner system that has hydraulic conductivity no greater than 1E-7 centimeters per second; or (ii) a clay liner system equivalent to a liner system described in Subsection (12)(a)(i).
(b) A nonhazardous solid waste class VII landfill facility is considered to have an
approved operation plan or permit for purposes of Subsection (12)(a) if the nonhazardous solid waste class VII landfill facility: (i) on January 1, 2025, was permitted by the Division of Oil, Gas, and
Mining; and
(ii) on or before May 7, 2025, obtains a temporary permit, as defined by rule made in accordance with Title 63G, Chapter 3, Utah Administrative Rulemaking Act, for the nonhazardous solid waste class VII landfill
facility.
As noted in Subsection (b), a class VII landfill is considered to have an approved operation plan or permit only if the “class VII landfill facility: (i) on January 1, 2025, was permitted by the Division of Oil, Gas, and Mining....” Here, EEI is not and cannot be considered
to have an approved operation plan or permit because EEI did not have a “class VII landfill
facility: [that] (i) on January 1, 2025, was permitted by the Division of Oil, Gas, and Mining….” Although on January 1, 2025, EEI may have had a landfarm that was permitted, it did not have a “class VII landfill facility” that was permitted, and it certainly did not have a class VII landfill that was permitted by “the Division of Oil, Gas, and Mining.”1 Accordingly, under subsection
(b), EEI’s facility is not “considered to have an approved operation plan or permit,” and
therefore under subsection (a), “[t]he Director may not approve an operation plan or permit,” including a Temporary Permit, for EEI’s facility.

1 In DWMRC’s solid waste rules, a class VII facility is defined as “a nonhazardous solid waste management facility that is permitted by the director [of DWMRC] for the treatment or disposal of
exploration and production waste.” Utah Admin. Code § R315-301-2(13).
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2) EEI’s Facility is Not and Will Not Be in Compliance with the Act, or the Terms of the Temporary Permit.

DWMRC’s stock Temporary Permit form provides that “[t]he Permittee is subject to the requirements of the Act, the Rules, and the requirements set forth herein.” The “Act” to which the applicant EEI will be subject, includes, as addressed above, section (12)(a) of S.B. 159, which provides that “[t]he director may not approve an operation plan or permit for a
nonhazardous solid waste class VII landfill facility unless … the operation plan and permit
contain engineering plans and specifications … that include: (i) an impervious synthetic liner system that has hydraulic conductivity no greater than 1E-7 centimeters per second; or (ii) a clay liner system equivalent….” Because EEI’s facility does not have such a liner system or equivalent, EEI is not and will not be in compliance with the Act or the requirements of the
Temporary Permit. The Director should not issue a Temporary Permit to an applicant such as
EEI who is not and will not be in compliance with the Act and the requirements of the Temporary Permit.
3) EEI’s Facility is Not and Will Not Be in Compliance with the Applicable Rules (“Standards for Design”), or the Terms of the Temporary Permit. DWMRC’s stock Temporary Permit form provides that “[t]he Permittee is subject to the requirements of the Act, the Rules, and the requirements set forth herein.” Those “Rules” and
those “requirements” of the Temporary Permit to which the applicant EEI would be subject
include R315-321-4, the “Class VII Landfill Requirements.” More specifically, R315-321-4(2), captioned “Standards for Design,” provides that ‘[t]he owner or operator of a Class VII landfill shall comply with the requirements relating to the management of high liquid wastes set forth in Subsection R315-303-3(2).” R315-321-4(2)(c). That referenced Subsection R315-303-3(2)
provides that “[t]he direct disposal of high liquid wastes in landfill cells is prohibited unless the
owner or operator implements appropriate measures described in a high liquid waste management plan approved by the director and included in the plan of operation….” Because EEI does not have a high liquid waste management plan approved by the director, EEI is not and will not be in compliance with the applicable rules, and therefore will not be in compliance with
the requirements of the Temporary Permit. The Director should not issue a Temporary Permit to
an applicant such as EEI who is not and will not be in compliance with the applicable rules and with the requirements of the Temporary Permit. 4) EEI’s Operation is Not and Will Not Be in Compliance with the Applicable
Rules (“Groundwater Monitoring Requirements” & “General Facility Requirements”), or the Terms of the Temporary Permit. DWMRC’s stock Temporary Permit form provides that “[t]he Permittee is subject to the
requirements of the Act, the Rules, and the requirements set forth herein.” Those “Rules” and
those “requirements” of the Temporary Permit to which the applicant EEI would be subject
include R315-308, the “Groundwater Monitoring Requirements,” and R315-302-2, the “General
Facility Requirements” for solid waste facilities. More specifically, R315-308-1 and R315-321-
4(3) require EEI’s facility to have a groundwater monitoring system. In addition, R315-302-
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2(2), captioned “Plan of Operation,” provides that each owner or operator shall develop and
abide by a plan of operation approved by the director, and that the plan of operation include,
among other things, “a description of maintenance of . . . groundwater monitoring systems.”
R315-302-2(2)(i). Because EEI’s facility does not have a groundwater monitoring system or an
associated description of maintenance of that system, it is not and will not be in compliance with
“the Rules,” and therefore is not and will not be in compliance with the terms of the Temporary
Permit. The Director should not issue a Temporary Permit to any applicant such as EEI who is
not and will not be in compliance with the rules and with the requirements of the Temporary
Permit.
5) EEI’s Recordkeeping is Not in Compliance with the Applicable Rules
(“General Facility Requirements” & “Recordkeeping Requirements,”), or the Terms of the Temporary Permit. DWMRC’s stock Temporary Permit form provides that “[t]he Permittee is subject to the
requirements of the Act, the Rules, and the requirements set forth herein.” Those “Rules” and
those “requirements” of the Temporary Permit to which the applicant EEI would be subject
include R315-302-2, the “General Facility Requirements” for solid waste facilities. More
specifically, R315-302-2(3), captioned “Recordkeeping,” provides that “[e]ach owner or operator
shall maintain and keep, on-site or at a location approved by the director, the following
permanent records: (a) a daily operating record, to be completed at the end of each day of
operation, that shall contain: … (iv) results of groundwater and gas monitoring .…” R315-302-
2(3)(a)(iv). Because EEI does not have the required groundwater monitoring system (as
addressed above), EEI necessarily is not maintaining and will not be able to maintain the
required daily operating record containing the results of groundwater monitoring, and therefore
is not and will not be in compliance with the terms of the Temporary Permit. The Director
should not issue a Temporary Permit to an applicant such as EEI who is not and will not be in
compliance with the rules and with the requirements of the Temporary Permit.
6) The Cost to Remove the E&P Waste from EEI’s Unlined Facility Will Far Exceed EEI’s Reclamation Bond.
If the Director were to approve EEI’s Application for Temporary Permit, by the
Temporary Permit’s own terms it would remain valid for an entire “12 months from the Effective Date.” Moreover, the Director could, and likely would, re-issue an essentially identical Temporary Permit for each of the four following years thereafter (through July 1, 2030 because, as noted above, S.B. 159 provides that “(c) Notwithstanding Subsection (12)(b), a nonhazardous
solid waste class VII landfill facility described in Subsection (12)(b) shall ensure that as of July
1, 2030, each cell within the nonhazardous solid waste class VII landfill facility has: (i) an impervious synthetic liner system that has hydraulic conductivity no greater than 1E-7 centimeters per second; or (ii) a clay liner system equivalent to a liner system described in Subsection (12)(c)(i).” In other words, EEI could continue to accept E&P waste at its unlined
facility for at least a full year, and more likely for 5 full years.

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At the end of that 1-5 year period, the cost to remove all of the E&P waste that will have accumulated at EEI’s unlined facility will far exceed the existing $25,000 reclamation bond that
EEI will rollover and have in place for such removal. That excess cost will have to be borne by
Utah taxpayers, or worse by the other landfill operators (who have responsibly installed liners) in the form of increased operating fees to cover such excess removal costs. The Director should not issue any Temporary Permits for such unlined E&P facilities, or, at a minimum, should increase EEI’s reclamation bond requirement to cover the entire cost of removing the accumulated E&P
waste at the end of that potential 1-5 year period.
7) Because EEI Has Ignored and Continues to Ignore the Various Rules for Handling High Liquid Waste, EEI’s Application for Temporary Permit Should be Denied.

EEI ignored the rules and its permit requirements relating to the handling of high liquid waste back when its operations were regulated under R649-9-4-5 by DOGM, continues to ignore the rules relating to Piles Used for Storage under R315-314 and the rules relating to landfills under R315-321 as the regulation of its operations shift to DWMRC, and there is no reason to
think that EEI will suddenly stop ignoring the rules if the Director were to issue the Temporary
Permit to EEI. R649-9-5, the Rule under which DOGM previously issued EEI’s landfarm permit, requires that “E and P waste accepted by the landfarm shall be sufficiently free of liquid content
to pass a 60-mesh liquid paint filter test.” R649-9-5.2.1. EEI consistently ignored that Rule and
the related requirements in its landfarm permit by regularly accepting E&P waste that was not sufficiently free of liquid content. Similarly, EEI is currently ignoring the rules relating to the handling of liquid under its
“Piles for Used Storage” permit and operating plan issued and regulated under R315-314 by
DWMRC. R315-314(2) requires that “Waste piles shall be placed upon a surface such as sealed concrete, asphalt, clay, or an artificial liner underlying the pile to prevent subsurface soil and potential groundwater contamination….,” and a plan of operation. R315-314-2(1)(a) (referencing requirement at R315-302-2(2) for plan of operation). EEI continues to ignore those
rules by failing to use such sealed surfaces or liners and failing to follow its own operation plan
(which requires “separating liquid from solids,” remov[ing] liquids by drying the waste in the concrete storage area,” “inspect[ing] for liquids and inappropriate waste prior to disposal,” disposing only of wastes “free of liquids,” further processing of wastes with “excessive liquid content,” “separate[ing] liquids from solid waste,” etc.).2

Similarly, as noted above, EEI’s operations are currently subject to R315-321 and it is expected that EEI will soon seek an application for a E&P class VII landfill permit under R315-321. Like DOGM’s R649-9-5.2.1 (for landfarms) and DWMRC’s R315-314 (for storage piles), DWMRC’s R315-321-4(2)(c) likewise requires that “[t]he owner or operator of a Class VII

2 In addition to demonstrating that EEI has an ongoing history of ignoring the applicable rules, and cannot be trusted to adhere to the rules that would be applicable under a Temporary Permit, DWMRC should suspend EEI’s Piles for Used Storage authorization under R315-314 until EEI can demonstrate compliance with the applicable groundwater monitoring requirements, or until it has a class VII landfill permit under R315-321.
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landfill shall comply with the requirements relating to the management of high liquid wastes set forth in Subsection R315-303-3(2),” which Subsection provides that “[t]he direct disposal of
high liquid wastes in landfill cells is prohibited unless the owner or operator implements
appropriate measures described in a high liquid waste management plan approved by the director and included in the plan of operation . . . .” EEI has likewise ignored and continues to ignore R315-303-3(2) by its continual direct disposal of high liquid waste at its unlined facility without a high liquid waste management plan approved by the director. See 12/20/24 video of EEI
loading and spreading E&P waste containing free liquid into its manure spreader, attached to
conveying email. IWM also has, and upon request can provide, video of EEI spreading that E&P waste containing free liquid onto the bare ground. Even if going forward EEI commits to properly stabilize such E&P waste containing free
liquid, it has not “described in a high liquid waste management plan approved by the director”
any such stabilization measures as required, and has not “installed[ed] and maintain[ed] a containment system having a permeability of no more than 1x10-7 cm/sec, that is capable of maintaining integrity under the operation of heavy equipment for: (A) all high liquid waste unloading areas and structures; (B) staging areas for high liquid wastes before dewatering,
stabilization, or other treatment; and (C) areas used for dewatering, stabilization, or other
treatment“ as required. See R315-303-3(2)(b)(i). In short, EEI brazenly ignored the rules and its permit requirements relating to the handling of high liquid waste back when its operations were regulated by DOGM under R649-9-
4-5, EEI has ignored and continues to ignore the rules and plan of operation relating to liquid
waste under its Piles Used For Storage permit issued under R315-314, and EEI has ignored and continues to ignore the rules relating to the handling of high liquid waste under R315-321. Now as the regulation of its operations are shifting to a proposed Temporary Permit and later a class VII landfill permit under R315-321, there is no reason to think that EEI will suddenly stop
ignoring the rules or the requirements in the Temporary Permit for which EEI has applied.
Accordingly, because EEI has amply demonstrated that it cannot be trusted to comply with the rules relating to the handling of liquid waste, the Director should not approve EEI’s Application for Temporary Permit, or at least not until EEI installs a liner.
In summary, based on the comments referenced above, IWM respectfully requests that
the Director deny EEI’s Application for Temporary Permit.
Best regards,
PARR BROWN GEE & LOVELESS

/s/ Martin K. Banks Martin K. Banks cc: Walter Plumb
Nate Robinson
Russell Sorensen Mike Vorkink

MARTIN K. BANKS ATTORNEY AT LAW 101 SOUTH 200 EAST, SUITE 700 SALT LAKE CITY, UTAH 84111 [e-mail] [phone]