October 7, U.S. Environmental Protection Agency Water Docket 1200 Pennsylvania Ave. NW Washington DC 20460

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1 October 7, 2013 U.S. Environmental Protection Agency Water Docket 1200 Pennsylvania Ave. NW Washington DC Re: Docket ID No. EPA-HQ-OW : Comments on Preliminary 2012 Effluent Guidelines Program Plan: Coalbed Methane Extraction and Shale Gas Wastewater Treatment The undersigned organizations strongly oppose the Environmental Protection Agency (EPA) proposal to delist the coalbed methane extraction industry and to discontinue Effluent Guidelines (ELGs) rulemaking around wastewater treatment technologies for coalbed methane extraction. We support the on-going revisions to the Onshore Oil and Gas ELGs to address pollution from the unconventional oil and gas extraction industry but urge EPA to include not just shale gas wastewater, but all oil and gas exploration, stimulation and extraction techniques which can cause surface or groundwater pollution, in these revisions. EPA should reconsider its proposal to delist coalbed methane and discontinue ELG rulemaking for the following reasons: 1. Coalbed methane extraction produces large volumes of wastewater characterized by the presence of numerous contaminants at potentially high concentrations. Inadequate treatment and discharge of these wastes jeopardizes the integrity of surface water, can lead to increased public health risks from drinking water, threatens fish and wildlife and causes other negative environmental impacts. 2. EPA s proposal to delist the coalbed methane extraction industry and to discontinue rulemaking is premature. EPA should reconsider this proposal in light of inevitable shifts in gas prices, demand, and costs of wastewater treatment. 3. The Congressional intent underlying the Clean Water Act s Effluent Guidelines and Limitations-setting process included prevention of pollution havens. Coalbed methane extraction ELG s are necessary and affordable treatments are available to avoid this outcome in places where coalbed methane extraction is occurring. Please find our detailed comments below. 1. Coalbed methane extraction produces large volumes of wastewater characterized by the presence of numerous contaminants at potentially high concentrations. Inadequate treatment and discharge of these wastes jeopardizes the integrity of surface water, can lead to increased public health risks from drinking water, threatens fish and wildlife and causes other negative environmental impacts.

2 EPA s Final Coalbed Methane Extraction: Detailed Study Report (Study Report) found that produced water from coalbed methane extraction has the potential to cause multiple negative environmental impacts: CBM produced water is generally characterized by elevated levels of salinity, sodicity, and trace elements (e.g., barium and iron). Other trace pollutants that may be present in produced water include potassium, sulfate, bicarbonate, fluoride, ammonia, arsenic, and radionuclides. The characteristics of the produced water depend on the geography and location (e.g., naturally occurring elements). All of these parameters can cause adverse environmental impacts (see Chapter 4) and also affect the potential for beneficial use of produced water. 1 EPA estimated that in 2008, 22 billion gallons of produced water from coalbed methane extraction were discharged directly into waters of the US, threatening the integrity of the receiving waters. Other methods of handling coalbed methane produced water also have the potential to cause environmental impacts. For example, when untreated produced water is stored in impoundments or used on land for irrigation or dust control, heavy metals, salts and other contaminants can infiltrate into local groundwater which may be used as drinking water sources or in agricultural activity. 2 In the October 2011 Final 2010 Effluent Guidelines Program Plan (Final 2010 Plan), EPA announced that it would undertake Clean Water Act Effluent Guidelines rulemaking for the coalbed methane subcategory of the Oil and Gas Industrial Sector because of the findings of the Study Report that coalbed methane discharges large quantities of produced water into surface waters and that technology is available to treat this discharged water. 3 In the Preliminary 2012 Effluent Guidelines Program Plan(Preliminary 2012 Plan) EPA provides no evidence that practices for handling coalbed methane produced water have changed, nor does EPA present any information to contradict the findings of the 2010 Final Plan or the Detailed Study that contaminants in coalbed methane produced water can cause numerous negative environmental impacts including degradation of water quality, public health risk from drinking water source contamination and threats to fish and wildlife. The threats of coalbed methane produced water being discharged into surface waters remain the same. National Effluent Guidelines are justified and needed to address the environmental impacts of water discharges from coalbed methane extraction. 2. EPA s proposal to delist the coalbed methane extraction industry and to discontinue rulemaking is premature. EPA should reconsider this proposal given that coalbed methane is 1 US EPA, Coalbed Methane Extraction: Detailed Study Report (Detailed Study), EPA-820-R ( September 2011). 2 Id. at 4-1 through Notice of Final 2010 Effluent Guidelines Program Plan, 76 Federal Reg. 66,286,66296 (October 26, 2011). 2

3 currently being produced and in light of inevitable shifts in gas prices, demand and costs of wastewater treatment. In the Preliminary 2012 Plan, EPA announced that it may not be able to identify a wastewater treatment technology that would be economically achievable for this industrial subcategory. Although potential treatment technologies may exist, these technologies do not appear to be economically achievable due, in part, to the decrease in gas prices as a result of the recent boom in development of shale gas resources. 4 The vague and qualified nature of this statement does not justify the delisting decision. Changes in the gas industry, including prices, are not sufficient to reverse a well-documented decision just two years ago about the need for national Guidelines for treatment and handling of this water pollution. The coalbed methane reserves which formed the basis for projections of growth in this category just a few years ago still exist, and as noted by comments from the Northern Plains Resource Council (August 2013), increased global demand could once again shift the projections for this subcategory. According to the U.S. Energy Information Administration (EIA), 1.71 trillion cubic feet of natural gas was produced from coalbed methane wells in Coalbed methane production occurred in fourteen states. 5 Companies have plans to continue coalbed methane production. For example, in 2012, one company announced its plans to revive dormant economically-depleted coal-bed methane wells in the Powder River Basin. 6 When natural gas prices decline, all forms of natural gas production decrease, including shale gas, yet the EPA has proposed continuing with development of ELGs for shale gas. Furthermore, EIA has projected that the average Henry Hub natural gas price will increase from 2013 to EIA also projects that coalbed methane production will remain relatively steady over the next 20 years. Production isn t expected to increase or decrease by more than a few percent relative to 2011 production volumes, when the EPA determined that such rules were necessary. 8 While the signers of this comment letter do not endorse or dispute these projections, the fact remains that natural gas prices and production volumes are uncertain, and that the EPA should make decisions about surface water protection based on the known risks of contamination and alternatives available to prevent contamination. 4 US EPA, Preliminary 2012 Effluent Guidelines Program Plan (Preliminary 2012 Plan), EPA-821-R (May 2013) at 4-2,4-3 5 U.S. Energy Information Administration, Coalbed Methane Production (Billion Cubic Feet), 8/1/ University of Wyoming, Company s Spin-Out Agreement with UW Looks to Sustain Long-Term Production of Coal-Bed Methane, May press release. 7 U.S. Energy Information Administration, Short-Term Energy Outlook, September 10, U.S. Energy Information Administration. (2013). Annual Energy Outlook 2013 Early Release. 3

4 EPA should not propose a final decision that allows continued threats of contamination to waters of the United States based on a vague conclusion that economically achievable treatment technology may not be available. In addition, the EPA wrongly bases its proposal on a claim about current gas prices, and then only about one type of natural gas. If the EPA issued ELGs to protect clean water, and for some reason industry could not produce coalbed methane while complying with the ELGs, then industry would stop producing natural gas from coalbed methane formations and would instead produce natural gas from other formations. Of course, ELGs should be in place for all forms of natural gas production. On the one hand, the EPA is saying that coalbed methane extraction is declining and therefore the water contamination does not need to be addressed, but on the other hand the EPA is saying that it will not propose an ELG so that the coalbed methane industry can continue to operate. The bottom line is that the EPA cannot predict natural gas prices or production volumes. Prices and production volumes will continue to fluctuate and the EPA should not base Clean Water Act policy on any attempts to predict prices or production. Instead, the EPA should be enforcing the Clean Water Act by protecting surface waters from industrial contamination. There is no justifiable reason to put coalbed methane extraction above clean water, especially when EPA cannot predict prices or production and cannot even say with certainty that economically achievable treatment technology is not available. 4

5 In the Economic Analysis for Treatment Technology for CBM Projects (Economic Analysis), 9 EPA analyzed the impact of only two treatment options Ion Exchange and Underground Injection - on specific coalbed methane projects. Limiting the analysis to these two technologies may have led EPA to overestimate the cost of wastewater discharge requirements. As noted in Section 3.3, Uncertainties and Limitations, EPA s analysis assumes that treatment costs will rise with inflation, but experience demonstrates that costs of treatment technologies often decline as their use becomes more prevalent in a specific industrial category. 10 EPA has not demonstrated that affordable wastewater treatment technologies can not be identified. EPA should exercise foresight and pursue development of Guidelines for coalbed methane extraction. 3. The Congressional intent underlying the Clean Water Act s Effluent Guidelines and Limitations-setting process included prevention of pollution havens. Coalbed methane extraction ELG s are necessary and affordable treatments are available to avoid this outcome in places where coalbed methane extraction is occurring. As noted in the Preliminary 2012 Plan, determining Best Affordable Technology (BAT) for control of water pollution was intended by Congress to eliminate discharges, improve water quality and insure that each industrial category meets the same pollution limits regardless of their location. 11 The goal of avoiding pollution havens is particularly important in this case. As noted in the Detailed Study, the vast majority of surface water discharges from coalbed methane extraction occur in three basins: the Power River Basin in Wyoming and Montana, the Black Warrior Basin in Alabama and Mississippi and the Raton Basin in Colorado and New Mexico. 12 A potentially temporary downturn in production in some of these places does not justify leaving water resources, public health and wildlife in these places vulnerable to documented risks from water discharges from this sector. EPA s decision will allow coalbed methane extraction to continue without national pollution prevention and control practices and technologies in place which could prevent the potential for pollution havens to experience very real negative environmental impacts. 9 US EPA, Economic Analysis for Treatment Technology for CBM Projects, EPA 820-R (July 29, 2013) 10 Id. at Preliminary 2012 Plan at Detailed Study at

6 Thank you for the opportunity to submit these comments. Sincerely, Lynn Thorp National Campaigns Director Clean Water Action Maya van Rossum Delaware Riverkeeper Delaware Riverkeeper Network. Jessica Ennis Legislative Representative Earthjustice Lauren Pagel Policy Director Earthworks Hugh MacMillan, Ph.D. Senior Researcher Food & Water Watch Tiernan Sittenfeld Senior Vice President of Government Affairs League of Conservation Voters Amy Mall Senior Policy Analyst Natural Resources Defense Council Deborah Nardone Director, Beyond Natural Gas Campaign Sierra Club Sara Kendall Washington DC Office Director Western Organization of Resource Councils 6