Annulus Gel - EAB Second Petition Excerpt

For over a decade, EPA Region IV allowed the use of annulus gel (bentonite) in Class II injection wells.  But in April, 1997, Region IV abruptly reversed its policy on annulus gel.  Said peculiar reversal of policy on annulus gel at Region IV was challenged in a pair of UIC permit appeals before the Environmental Appeals Board (EAB) in UIC Appeal Nos. 98-3 & 98-5.  The EAB remanded the annulus gel issue (and six others), and after over 1-1/2 years, Region IV finally addressed the remanded issues in a December 1, 2000 letter, and reissued the two UIC permits.  The Petitioners felt that EPA Region IV inadequately addressed the remanded annulus gel issue, and filed a new Petition for Review with the EAB on January 15, 2001.  The EAB declined further review, and the matter was brought before the U.S. Court of Appeals for the Sixth Circuit.  Unfortunately, the court dismissed the pro se UIC permit appeal for lack of standing of the petitioner.

What follows is the full unaltered text (reformatted for this webpage) of the annulus gel portion of the January 15, 2001 second Petition for Review:

1.  Annulus Gel (7. Annulus Fluid, in EAB Opinion)

Section I.C.2. of the two new final UIC Permits states, in part, "The annulus between the tubing and the long-string casing shall be filled with brine or other fluid as approved by the Director."  This provision remains unchanged from the previously appealed language.  Petitioners requested that gel be added to the list of annular fluids in their comments on the original draft UIC Permits.  Petitioners noted that annulus gel had been approved and historically used in Region IV, a fact that Region IV did not previously dispute before the Board.

The Board remanded the annulus gel issue, instructing Region IV to " either add annulus gel to the list of approved annular fluids or provide an explanation for rejecting petitioners' request in light of the Region's past practices in this regard ...."  The Board found "... the Region's explanation for rejecting petitioners' request to add annulus gel to the list of approved annular fluids inadequate based on the administrative record before us ...."  Specifically the Board found that " the Region provides no citations to the administrative record indicating that it relied upon this rationale below [the Region's assertion, "'Gel' will not inhibit corrosion in the annular area and is not designed and marketed as an annular additive."], nor does the Region respond to petitioners' assertions that the Region has approved the use of annulus gel in the past."

Reversal of Past Practices

In the December 1, 2000 response letter, Region IV states, "The Region can find no instances where gel was approved for use as an annular fluid additive in Region IV."  The deposition of Syd H. Levine, taken in USA v. Levine, et al., No. 4:97-CV-169-M (W.D.KY.,1997) is mentioned, which said civil action is characterized as a "closely related case", though it is not clear how it is closely related.  It is true that Petitioner Syd H. Levine declined to name specific operators using annulus gel, but the immediately prior testimony is absolutely unambiguous and uncontradicted that annulus gel has been used in Hancock, Ohio, and Henderson Counties, Kentucky.  Deposition of Syd H. Levine on September 28, 1999, at page 183 (excerpted pages 183-185 attached as Exhibit 2).  Certainly if Region IV is so capricious as to reverse long standing approved procedures, then it is only reasonable that Syd H. Levine would be reticent to name operators using annulus gel, many of whom are business associates and/or good friends.  Your Petitioners find the use of the Syd H. Levine refusal to name names (out of context) to be disturbing, for reasons that should be obvious.

Kenneth R. Ingle, no longer in the oil business, has since authorized the use of his name.  Mr. Ingle has used annulus gel in injection wells in Hancock County, Kentucky.  Mr. Ingle has indicated he will testify or provide an affidavit that Region IV specifically approved the use of annulus gel in his injection wells.  Perhaps additional operators can be persuaded to come forward, but small "mom and pop" operators are justifiably terrified of EPA.  Two employees of a former EPA subcontractor have stated they remember the use of annulus gel in Region IV, but the passage of time limits their recall of details.  But the fact these contract inspectors remember annulus gel at all is significant; they must have heard about it either from EPA personnel or from operators, and it is difficult to imagine operators would have mentioned an unapproved practice that would have negated the very mechanical integrity test ("MIT") being witnessed.

Further, it has always been the Petitioners' position that documents exist that would verify that Region IV gave its blessing to annulus gel, but Region IV has not produced any such documents pursuant to FOIA requests.  However, Region IV has a long history of losing documents and being unable to locate same in response to FOIA requests and even formal discovery. Petitioners have previously been unable to search the computer files of Syd H. Levine & Associates for the applicable time period, due to a partial loss of said data as a result of a series of unfortunate coincidental computer mishaps.  Said data existed only on a set of obsolete 5-1/4 inch floppy disks in an obsolete word processor format.  A temporary installation of a "legacy" 5-1/4 inch disk drive, along with special software, has resulted in the restoration of all lost data.  A cursory search turned up four letters; a May 17, 1990 letter addressed to Fred McManus, a June 6, 1990 letter addressed to Henry Morgan, former Director of the Kentucky Division of Oil and Gas (DOG), a November 7, 1994 letter to Thomas J. Hansen and J. Scott Gordon, and an April 7, 1997 letter to Carol Tarras and George Ford (attached as cumulative Exhibit 3).  Please note that these four letters are true and accurate representations of the original content, but the letterheads are either not reproduced or are distorted due to the newer printer used to reproduce same.

Finally, Region IV has refused to allow Petitioners to contact EPA personnel, a prohibition Petitioners believe is improper, and said refusal has certainly complicated researching the reversal of past practices issue.  For Region IV to say it"... can find no evidence to support the contention that the Region's decision not to allow the use of gel is a reversal of Region IV's past practices" requires accusing Syd H. Levine of perjury, and further requires overlooking considerable other evidence to the contrary.

Technical Considerations

In the December 1, 2000 response letter, Region IV reiterates its " concern that the gel will not inhibit corrosion in the annular area, as discussed in the Region's responses to your [original] petitions for review ...."  Bentonite gel is well characterized after a century of use as "drilling mud"; it is not inherently corrosive (it cannot be too bad since it is the principle ingredient in the "mud" used in mud wrestling).  Brine (essentially salt water) is inherently more corrosive than fresh water, a fact known to all dwelling by the ocean and all who live in areas where roads are salted in the winter.  A gel made with brine would be no more corrosive than that same brine used as an annular fluid.  But bentonite gel used in the annulus is almost always prepared with fresh water because of superior performance.  Such a fresh water gel would be less corrosive than a plain brine, and plain brine is explicitly allowed in the two subject UIC Permits.

Further, the UIC regulations do not mandate that annular fluid inhibit corrosion in Class IIR wells, nor has Region IV included any such requirement in UIC Permits for such injection wells.  In fact, UIC Permits KYA0361 and KYA0362, the subject of this Petition, specifically allow brine, an inherently corrosive material, with no corrosion inhibitors added.  As pointed out above, bentonite is not inherently corrosive, and its addition to fresh water or brine results in an annular fluid no more corrosive than the original fresh water or brine.  Of course corrosion inhibitors can be added to any annular fluid, brine, fresh water, or gel; such a requirement could be made a permit condition if allowed by the regulations, or by agreement.  Region IV first enunciated its corrosion inhibition objection in its response to the original petitions in this matter; said position is unsupported by the UIC regulations, scientific fact, or the Region's own explicit language in the subject UIC Permits allowing uninhibited brine as an annular fluid.

In the December 1, 2000 response letter, Region IV presents new technical objections to annulus gel, but these arguments are without scientific merit and are somewhat circular.  The Region expresses its "... concern that the gel could contribute to or mask the loss of a well's mechanical integrity."  Petitioners do not believe annulus gel can contribute to the loss of mechanical integrity, especially in shallow injection wells, nor can any mention of this possibility be found in the literature.  While fluid column weight in the annular space is higher with annulus gel, so is it higher with brine versus fresh water, but in either event said effect is trivial at the shallow depths of the subject injection wells (all much less than 500 feet).  Annulus gel actually repairs very small leaks, not rising to the level of a "significant leak", allowing injection wells to pass overly sensitive MITs; the use of the word "mask" is an exercise in semantics.

Some MITs are known to be "hypersensitive"; for instance the most common internal MIT, the standard annular pressure test ("SAPT"), has a resolution on the order of one gallon per day, certainly not a significant leak with respect to the subject Class IIR injection wells.  The standard at 40 CFR 146.8(a)(1) for internal mechanical integrity is that there be "... no significant leak in the casing, tubing or packer ...."  Unfortunately, EPA has conspicuously avoided issuing much guidance on what constitutes a "significant leak", but it is clearly something more than no leak at all.  In certain parts of the U.S., a 5 or 10 barrel per day leak would be considered insignificant, and some accepted MIT procedures cannot detect leaks of that size.  Further, the UIC regulations do not prohibit all leakage, only that leakage capable of causing a violation of the primary drinking water standards.  The standard at 40 CFR 144.12(a) is to prohibit "... injection activity in a manner that allows the movement of fluid containing any contaminant into underground sources of drinking water, if the presence of that contaminant may cause a violation of any primary drinking water regulation under 40 CFR Part 142 or may otherwise adversely affect the health of persons."  This un-EPA-like language was adopted in response to the 1981 industry litigation (Issue 54) and replaced the previous "no migration" standard, hence the "significant leak" concept.

Bentonite annulus gel produces a filter cake that effectively repairs very small leaks ("almost pass" leaks) and allows an injection well that never had a significant leak to pass its MIT without more extensive remediation, such as squeeze cementing (an expensive remedial procedure that often causes more problems than it solves).  Because the entire annular space is filled with gel, the repair of said very small defects is quite permanent.  Further, bentonite gel is quite stable and long lived; it has been found in perfect condition in plugged wells over 50 years old.  Even after many years, it can be easily removed from a well.  In fact, it is specifically approved for use in certain well plugging regimens.

In the December 1, 2000 response letter, Region IV describes its fear that, "In particular, the gel could conceivably fill a leak in injection tubing or the long string casing, enabling the well to demonstrate mechanical integrity, and later become displaced, resulting in a loss of mechanical integrity."  But neat bentonite gel could never seal a big enough defect to cause the above described problem.  "Neat" bentonite annulus gel refers to gel with no lost circulation material ("LCM") added, material designed to allow the bridging of large defects.  Your Petitioners have only requested the use of neat bentonite annulus gel, not gel with LCM; the use of LCM is beyond the scope of this effort.  Neat gel will not repair a significant leak in the first place, hence there is no danger such a repair would later become "displaced".  Further, if a significant leak develops after the installation of annulus gel, said leak will be readily detected since the gel can act quite fluidly.  If the annulus of an injection well with a significant leak is filled with gel, the well will fail an SAPT because neat gel would simply flow through any such large defect and be unable to produce a seal (gel allows pressure transmission throughout the annular space just as water does).

Regulatory Issues

A good deal of the foregoing discussion touches on regulatory requirements, but in the December 1, 2000 response letter, Region IV raises issues about two specific regulatory citations.

First, the Region is concerned that should gel fill a leak and later become displaced, such a loss of mechanical integrity would violate 40 CFR 144.51(q).  As discussed above, your Petitioners believe neat bentonite annulus gel could never "fill" a significant leak, and could therefore not later become "displaced".  Nevertheless, 40 CFR 144.51(q) would apply in just the same way it would apply to a well developing a significant leak after injection operations commence (yes, leaks do develop in the tubular goods in injection wells irrespective of annular fluid composition).

Second, Region IV expresses concern that "... should the gel mask a leak, this could violate the 40 C.F.R. 144.12 mandate ...."  Annulus gel repairs small leaks, it does not merely mask them; if it only masked them it would be impossible to pass an SAPT.  As mentioned above, the selection of the word "mask" is an exercise in semantics.  Would the Region suggest a successful cement squeeze job "masks" a leak?  The use of neat bentonite gel cannot repair (or mask) anything but very small leaks that would not rise to any reasonable definition of significant leak.  Nevertheless, the use of annulus gel is no more incompatible with 40 CFR 144.12 than a host of other practices.

National UIC Technical Workgroup Report

In the December 1, 2000 response letter, Region IV suggests that Petitioners should submit a request for approval for annulus gel in accordance with the procedures set out in the "Report on the Use of Additives to Annulus Fluid for Restoring Mechanical Integrity", "Final Work Product #5" of the National UIC Technical Workgroup.  This is a disingenuous offer because annulus gel could never be approved under said procedures.  Said document requires, "Any additive used to restore MI must be marketed by its manufacturer for the purpose of stopping leaks for the long term.  The manufacturer must stand behind the product and be willing to work with injection well operators and the USEPA to develop a testing and use history which will provide assurance that the product is effective."  But bentonite annulus gel is a "poor boy" technology with no manufacturer having sufficient economic incentive to play the role EPA envisions.  Incidentally, the report indicates that thus far, no additives have been approved.  If the author means pursuant to the guidelines in the report, that is entirely believable, but in fact annular fluid additives have been approved for use in Region IV, V (at least the concept was approved), VI, and VIII, and in delegated State UIC programs in Kansas, Oklahoma, Texas, Illinois, and perhaps elsewhere.

Annulus gel was approved in Region IV over a decade ago.  It is simply unfair to attempt to rely on an impossibly restrictive document, a document not even designated as an official guidance, to justify what appears to be a compounded mistake originally made by a single Region IV enforcement officer.

Annulus Gel Summary

Based on conversations with Region IV personnel over a decade ago, it is absolutely clear that Region IV had knowledge of most of the foregoing technical information.  In fact, Region IV made your Petitioners aware of annulus gel and the technical underpinnings that allowed approval of its use.

Included is a printout of a web page from the AnaLog Services, Inc. website, www.logwell.com, entitled "Annulus Gel", http://www.logwell.com/tech/uic/annulus_gel.html (attached as Exhibit 4).  While much of the material on said web page appears above, some does not.  Accordingly, said document is incorporated herein and made a part hereof by reference.

Annulus gel is a cost effective solution, available to the smallest "mom and pop" operators for just a few dollars.  Region IV has acted in a capricious manner and should allow the continued use of bentonite annulus gel.  EPA Region IV has made findings of fact and conclusions of law which are clearly erroneous and/or has exercised discretion which the Administrator should further review.

See also Annulus Gel and Pro Se UIC Permit Appeal.

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