Document 3QVeJrKN96NrRyw5p9VmrrDNx

UNITED STATES ENVIRONMENTAL PROTECTION AGENCY REGIONS 1201 ELM STREET, SUITE 500 DALLAS, TEXAS 75270-2102 June 6, 2023 TRANSMITTED VIA EMAIL David Sell P.O. Box 182 Pawhuska, OK 74056 sell55@ yahoo.com Re: Notice of Proposed Administrative Order and Opportunity to Request a Hearing Well Number: 3 EPA Inventory ID: OS4 I40000 Docket Number: SOWA-06-2023-1 I I 8 Dear Mr. Sell: Enclosed is a Proposed Administrative Order (Proposed Order) that the United States Environmental Protection Agency (EPA) intends to issue to David Sell for violation of the Safe Drinking Water Act (SOWA). The violation was identified based on our review of files that we maintain on the referenced injection well. The violation was for failing to successfully demonstrate mechanical integrity and for maintaining the injection well in a manner that could allow the movement offluid that contains contaminants into an Underground Source of Drinking Water. The Proposed Order does not assess a monetary penalty however, it does require compliance with SOWA requirements. The Proposed Order requires the referenced injection well to comply with certain regulations. EPA requests that you immediately confirm receipt ofthis e-mail and the attached Order by a response e-mail to Mr. David Aguinaga at aguinaga.david@epa.gov. You have the right to request a hearing regarding the violation alleged in the Proposed Order. Whether or not you request a hearing, EPA invites you to informally confer with EPA. lf you choose not to request a hearing, EPA will review any comments on the Proposed Order received from you and the public and determine whether the Proposed Order wi ll be issued as a Final Administrative Order. In the event you choose not to request a hearing within thirty (30) days ofyour receipt ofthis Proposed Order, and no public comments are received, EPA shall issue a Final Administrative Order regarding the violation and requiring compliance with SOWA regulations. Also enclosed is an "Information Sheet" relating to the Small Business Regulatory Enforcement Fairness Act and a "Notice of Registrant's Duty to Disclose" relating to the disclosure of environmental legal proceedings to the Securities and Exchange Commission. EPA is committed to ensuring compliance with the requirements of the Underground Injection Control program, and my staff will assist you in any way possible. Re: David Sell 2 SDWA-06-2023-1118 If you have any questions or wish to discuss the possibility of a settlement of this matter, please contaet David Aguinaga, of my staff, at (214) 665-6439. Sincerely, , , ( 1 l iaf::'i < 2_,,,f___.,. Oigit.lrlysigned by CHERYi. SEAGER Dat e: 2023.06.1)6 11:11:08--0S'OO' Cheryl T. Seager, Director Enforcement and Compliance Assurance Division Enclosures ec: Mr. Craig Walker, Osage Nation Dept. of Natural Resources, Environmental Supervisor cmwalker@osagenation-nsn.gov Mr. Richard Winlock, BIA Osage Agency Acting Superintendent richard.winlock@bia.gov F~L ED UNITED STATES ENVIRONMENTAL PROTECTION AGENCY REGION 6 Dallas, Texas 75270 23 JUN -8 AM 8: 0 I ~EG!0!-111.L liEAR!NG CLERK In the Matter of EPA REGION VI David Sell Docket No. SDWA-06-2023-1118 Respondent. PROPOSED ADMINISTRATIVE ORDER STATUTORY AUTHORITY The following findings are made, and Proposed Administrative Order issued, under the authority vested in the Administrator of the U.S. Environmental Protection Agency (EPA) by Section 1423(c) of the Safe Drinking Water Act (the Act), 42 U.S.C. 300h-2(c). The authority to issue this Proposed Administrative Order has been delegated by the Administrator to the Regional Administrator of EPA Region 6 who further delegated such authority to the Director of the Enforcement and Compliance Assurance Division. The EPA has primary enforcement responsibility for underground injection within the meaning of Section 1422(c) of the Act, 42 U.S.C. 300h-1(c), to ensure that owners or operators of Class II injection wells within Osage County, Oklahoma, comply with the requirements of the Act. FINDINGS 1. David Sell (Respondent) is an individual doing business in the State of Oklahoma and, therefore, is a "person," within the meaning of Section 1401(12) of the Act, 42 U.S.C. 300f(l2). 2. At all times relevant to the violations alleged herein, Respondent owned or operated an "injection well" which is a "Class II well" as those tenns are defined at 40 C.F.R 147.2902. David Sell SDWA-06-2023-1118 Page 2 The injection well is located in the Northwest Quarter of Section 32, Township 20 North, Range 12 East, Osage County, Oklahoma, designated as Well No. 3 and EPA Inventory Number OS4 I40000 (the injection well). 3. Respondent is subject to underground injection control (UIC) program requirements set forth at 40 C.F.R. Part 147, Subpart GGG, which are authorized under Section 1421 of the Act, 42 U.S.C. 300h. 4. Regulations at 40 C.F.R. 147.2903(a) require that any underground injection is prohibited except as authorized by rule or authorized by a permit issued under the UIC program. The construction or operation of any injection well required to have a permit is prohibited until the permit has been issued. The term " permit" is defined at 40 C.F.R. 147.2902. 5. Regulations at 40 C.F.R. 147.2903(b) pr'ovide that no owner or operator shall construct, operate, maintain, convert, plug, or abandon any injection well, or conduct any other 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 the violation of any primary drinking water regulation under 40 C.F.R. Part 142 or may otherwise adversely affect the health of persons. 6. Regulations at 40 C.F.R. 147.2909 provide that existing injection wells (wells authorized by the Bureau of Indian Affairs and constructed or completed on or before the effective date of the Osage UIC program) are authorized by rule (ABR). Owners or operators of injection wells authorized by rule must comply with the provisions of 40 C.F.R. 147.2903, 147.2905, 147.2907, and 147.2910 through 147.2915. 7. Regulations at 40 C.F.R. 147.2912(a) require each ABR injection well to have mechanical integrity. An injection well has mechanical integrity if there are no significant leaks in the casing, tubing, or packer and there is no significant fluid movement into the " Underground David Sell SDWA-06-2023-l l l8 Page 3 Source of Drinking Water" (USDW) through vertical channels adjacent to the wellbore. The term USDW is defined at 40 C.F.R. 147.2902. 8. The injection well is authorized by rule in accordance with 40 C.F.R. 147.2909. 9. Pursuant to 40 C.F.R. l47.2912(a)(l)(i), a pressure test ofthe injection well casing/tubing to at least 200 psi shall be conducted at five-year intervals for the life of well. I0. Regulations at 40 C.F.R. 147.2905 require that the injection well must be plugged within one year of termination of injection. All injection wells must be plugged to prevent movement of fluid into a USDW. 11. On November 19, 2021 , and February 20, 2023, the injection well failed mechanical integrity pressure tests. 12. EPA notified Respondent of the MIT violation by letter on April 19, 2023. Respondent' s May 8, 2023, record of communication to the EPA indicated that Respondent intended to permanently plug & abandon the injection well. To date, the injection well has not successfully demonstrated mechanical integrity. 13. Therefore, Respondent violated regulations set forth at 40 C.F.R. 147.2903(b), 147.2909, 147.2912(a) and 147.2915 by maintaining the injection well in a manner that could allow the movement of fluid that contains contaminants into an USDW and by failing to successfully demonstrate mechanical integrity. SECTION 1423(c) PROPOSED COMPLIANCE ORDER 14. Based on the foregoing findings, and pursuant to the authority of Section l423(c) of the Act, 42 U.S.C. 300h-2(c), EPA Region 6 hereby proposes to order Respondent to: a. Cease use of the injection well for the unauthorized underground injection of fluids, and b. Take one of the following actions: David Sell SDWA-06-2023-1118 Page 4 1. Repair the injection well and successfully demonstrate mechanical integrity according to regulations at 40 C.F.R. 147.2912(a) within ninety (90) days ofthe date ofreceipt ofa Final Administrative Order; or 11. Complete proper plugging and abandonment in accordance with 40 C.F.R. 147.2905, within ninety (90) days of receipt of a Final Administrative Order; or 111. Convert the injection well to production use within ninety (90) days of receipt of a Final Administrative Order. 15. Submit copies of completed plugging reports or completed work reports showing conversion to production and BIA Osage Agency Forms 139 within 120 days of receipt of a Final Administrative Order to: David Aguinaga aguinaga.david@epa.gov U.S. Environmental Protection Agency Water Enforcement Branch (ECDWE) NOTICE OF OPPORTUNITY TO REQUEST A HEARING 16. Respondent may request a hearing to contest the issuance of the Final Administrative Order, pursuant to Section 1423(c)(3)(A) of the Act, 42 U.S.C. 300h-2(c)(3)(A). Such hearing shall not be subject to section 554 or 556 of Title 5 but shall provide a reasonable opportunity to be heard and to present evidence. 17. A request for a hearing must be made within thirty (30) days of the date of receipt of this Proposed Administrative Order. If you would like to request a hearing on this Proposed Administrative Order, submit the hearing request to the Regional Hearing Clerk (6ORC); U.S. Environmental Protection Agency, Region 6; I20 l Elm Street, Suite 500; Dallas, Texas 752702102. David Sell SDWA-06-2023-1118 Page 5 18. Should a hearing be requested, members of the public who commented on the issuance ofthis Proposed Administrative Order during the public comment period would have a right to be heard and present evidence at a hearing under Section 1423(c)(3)(C) of the Act, 42 U .S.C. 300h2(c)(3)(C). GENERAL PROVISIONS 19. Issuance of the Final Administrative Order does not constitute a waiver, suspension, or modification of the requirements of 40 C.F.R. Parts 144, 146, and 147, Subpart GGG, which remain in full force and effect. 20. Issuance of the Final Administrative Order is not an election by EPA to forego any civil or criminal action otherwise authorized under the Act. 2 1. Violation of the terms of the Final Administrative Order after its effective date or date of final judgment as described in Section 1423(c)(6) of the Act, 42 U.S.C. 300h-2(c)(6), may subject Respondent to further enforcement action, including a civil action for enforcement of the Final Administrative Order under Section 1423(b) of the Act, 42 U.S.C. 300h-2(b), and civil and criminal penalties for violations ofthe compliance terms of the Final Administrative Order under Section 1423(b)(l) and (2) of the Act, 42 U.S.C. 300h-2(b)(I) and (2). TAX IDENTIFICATION 22. For purposes ofthe identification requirement in Section 162(f)(2)(A)(ii) of the Internal Revenue Code, 26 U.S.C. I 62(f)(2)(A)(ii), and 26 C.F.R. 1.162-21 (b)(2), performance of Paragraphs 14 and 15 is restitution, remediation, or required to come into compliance with the law. SETTLEMENT 23. EPA encourages all parties against whom an administrative order is proposed to pursue the possibility of settlement through informal meetings with EPA. Regardless ofwhether a formal David Sell SDWA-06-2023-1118 Page 6 hearing is requested, Re~pondent may confer informally with EPA about the alleged violations. Respondent may wish to appear at any informal conference or formal hearing personally, by counsel or other representative, or both. To request an informal conference on matters described in this Proposed Administrative Order, please contact David Aguinaga (214) 665-6439. 24. If this action does not proceed to a formal hearing, EPA shall issue a Final Administrative Order. EFFECTIVE DATE 25. The Final Administrative Order becomes effective thirty (30) days after issuance unless an appeal is taken pursuant to Section 1423(c)(6) of the Act, 42 U.S.C. 300h-2(c)(6). June 6, 2023 Date Ln!ur'il(.!_' <1' < _,.;e,,.....,.,. \J J Digitally signed by CHERYL SEAGER Date: 2023.06.06 11 :03:05 -0S'OO' Cheryl T. Seager, Director Enforcement and Compliance Assurance Division Docket No.: SDWA-06-2023-1118 Page 1 of i- CERTIFICATE OF SERVICE I certify that the foregoing Proposed Administrative Order was sent to the following persons, in the manner specified, on the date below: Signed Original E-mailed: Regional Hearing Clerk (R6ORC) U.S. EPA, Region 6 1201 Elm Street, Suite 500 Dallas, TX 75270 vauglrn .lore na@epa.gov File Stamped Copy Transmitted via Email: David Sell P.O. Box 182 Pawhuska, OK 74056 s e l155 @ v aho o.co m E lectronic Copy: Tucker Henson U.S. EPA, Region 6 . 120 I Elm Street, Suite 500 Dallas, TX 75270 he nson.tucker(@.epa.gov Richard Winlock, Acting Superintendent Bureau of Indian Affairs, Osage Agency P.O. Box 1539 Pawhuska, OK 74056 Ri c ha rd .W inl oc k(ci),bi a. go v Craig Walker, Environmental Supervisor Osage Nation Department of Natural Resources 100 W. Main, Suite 304 Pawhuska, OK 74056 cmwalker@osagena tion-nsn.gov Dated: June 8. 2023 Signed David Aguinaga