Chapter 3 Wastewater Management Regulation in the Appalachian Basin

Transcription

1 Chapter 3 Wastewater Management Regulation in the Appalachian Basin Kevin J. Garber Michael K. Reer Babst, Calland, Clements and Zomnir, P.C. Pittsburgh, Pennsylvania Synopsis CITE AS 37 Energy & Min. L. Inst. 3 (2017) Wastewater Management Needs of the Oil and Natural Gas Industry Treatment, Recycling, and Discharge Regulation [1] Effluent Limitations Guidelines in General...79 [2] Proposed Amendments to 40 C.F.R. Part [3] Ongoing Study of Centralized Wastewater Treatment (CWT) Facilities...82 [4] Draft Assessment of Hydraulic Fracturing s Impacts on Drinking Water Resources...85 [5] State Regulation of CWT Facilities Underground Injection Control Well Disposal [1] EPA Gathers Information, Assesses UIC Wells...95 [2] Lawsuit Challenges RCRA Exemption...98 [3] EPA Focuses on Managing Induced Seismicity [4] USGS Begins Predictive Seismic Modeling [5] States First Releases Primer on Risk Management and Mitigation [6] Community Rights Ordinances Challenge Development Future of Wastewater Management Regulations Wastewater Management Needs of the Oil and Natural Gas Industry. The production of oil and natural gas yields wastewater containing a range of constituents requiring proper management. 1 Despite the recent 1 [Waste]water is a byproduct of oil and natural gas production. After hydraulic fracturing is completed,... water is allowed to flow back from the well. The return flow

2 3.01 ENERGY & MINERAL LAW INSTITUTE decrease in new exploration and production activities, oil and natural gas wastewater generation has continued to rise in the Appalachian Basin. Conventional and unconventional operators in Pennsylvania, for example, reported producing over 46 million barrels of fracturing and produced fluids in 2015 alone, an increase of almost 6 percent from 2014 totals. 2 While unconventional wells use less total water than other energy extraction methods and represent only a fraction of total industrial water use nationwide, Marcellus wells still require an average of 4.25 million gallons of water to develop and produce an average of 1.37 million gallons of wastewater over their lifespans.3 The industry-wide decrease in exploration and production activities underscores the importance of sound wastewater management practices, as fewer new wells are available for wastewater recycling while older wells continue to yield significant aggregate quantities of produced water. contains chemicals injected as part of the hydraulic fracturing fluid, chemicals characteristic of the formation, hydrocarbons, and in-formation reaction and degradation products. Initially this water is called flowback, and consists mostly of fracturing fluid. After a time, the water, known as produced fluid, becomes more similar to formation water. Assessment of the Potential Impacts of Hydraulic Fracturing for Oil and Gas on Drinking Water Resources, U.S. Envtl. Prot. Agency, 7-1 (June 2015), eimscomm.getfile?p_download_id= PADEP Oil and Gas Reporting Website, Pa. Dep t. of Envtl. Prot., (last visited May 11, 2016). The Utica and Marcellus shales are generally viewed as drier, producing less produced water per MMCF than peer shale plays, either due to low water saturation within the shale or low relative permeability to water. Assessment of the Potential Impacts of Hydraulic Fracturing for Oil and Gas on Drinking Water Resources, supra note 1 at Andrew Kondash and Avner Vengosh, Water Footprint of Hydraulic Fracturing, Envtl. Science & Tech. (Sept. 15, 2015), estlett.5b The U.S. Environmental Protection Agency estimates that horizontal Marcellus wells can produce up to 860 gallons of produced water per day and that Utica wells can produce up to 510 gallons of produced water per day. Technical Development Document for Proposed Effluent Limitations Guidelines and Standards for Oil and Gas Extraction, U.S. Envtl. Prot. Agency, 51 (Mar. 2015), files/ /documents/uog_proposal_tdd_ pdf. Marcellus wells typically produce between 300,000 and 1,000,000 gallons of wastewater within the first 10 days after completion. Assessment of the Potential Impacts of Hydraulic Fracturing for Oil and Gas on Drinking Water Resources, supra note 1 at

3 Wastewater Management Regulation 3.02 Federal and state regulatory authorities appear more focused than ever on wastewater management techniques as the volume of oil and natural gas wastewater increases. Several recent developments have the potential to affect the treatment, recycling, and possible discharge of oil and natural gas wastewater. At the federal level, the U.S. Environmental Protection Agency (EPA) has: proposed to prohibit the indirect discharge of unconventional wastewater through publicly owned treatment works (POTWs); begun work on a study of centralized wastewater treatment (CWT) facilities, which might include operator wastewater management techniques; and continued efforts on a comprehensive assessment of hydraulic fracturing s impacts on drinking water resources. The latter two initiatives could result in additional federal regulation for operators and CWT facilities. Within the Appalachian Basin, operators in Pennsylvania are also likely to be affected by approved amendments to the Commonwealth s oil and natural gas regulations, several of which directly implicate operator wastewater management practices. Additionally, the Underground Injection Control (UIC) Class II Disposal Program could be entering a period of significant regulatory and scientific development. EPA continues to gather substantial data regarding existing Class IID wells through the use of an Information Collection Request and through periodic reviews of the state-run programs. EPA headquarters may also begin gathering more targeted information on inspections and enforcement given the recommendations of a U.S. Government Accountability Office audit released in February Operators will also want to closely follow a recent citizen suit that challenges EPA s Subtitle C Resource Conservation and Recovery Act regulations. With respect to scientific development, several recent articles and white papers have suggested methods to predict, limit, and mitigate the risk of induced seismicity from Class IID wells, including notable contributions from EPA, the U.S. Geological Survey (USGS), and the state-run organization States First. Finally, several municipalities in the Appalachian Basin have enacted community rights ordinances, which challenge the construction and operation of federally permitted Class IID wells Treatment, Recycling, and Discharge Regulations. The use of CWT facilities is especially strong among operators in the Appalachian Basin. According to the EPA, nationally there are 73 CWT 77

4 3.02 ENERGY & MINERAL LAW INSTITUTE facilities that either currently accept or plan to accept oil and natural gas extraction wastewater, of which 39 are in Pennsylvania, 11 are in Ohio, and six are in West Virginia collectively over 76 percent of the national total. 4 Additionally, only Pennsylvania and Ohio have CWT facilities that currently discharge to a surface water or POTW. 5 Generally, extraction wastewater contains a variety of constituents, such as: (1) salts, including [salt compounds of] chloride, bromide, sulfate, sodium, magnesium, and calcium; (2) metals, including barium, manganese, iron, and strontium; (3) dissolved organics, including BTEX, oil, and grease; (4) radioactive materials, including radium; and (5) hydraulic fracturing chemicals and their transformation products. 6 The level of treatment wastewater receives often depends on a variety of factors, including whether the treated water will be discharged to a POTW or surface water and, if recycling is desired, the individual specifications of the operator. 7 The Center for Sustainable Shale Development (CSSD), a collaboration of operators, industry groups, and environmental advocacy organizations in the Appalachian Basin, specifies the discharge of oil and natural gas wastewater to CWTs as a preferred method of wastewater management in its voluntary performance standards, noting that some CWT facilities are capable of treating shale gas extraction wastewater to levels at or better than receiving stream standards. 8 CWTs remain an environmentally sound 4 Technical Development Document for Proposed Effluent Limitations Guidelines and Standards for Oil and Gas Extraction, supra note 3, at Id. 6 Assessment of the Potential Impacts of Hydraulic Fracturing for Oil and Gas on Drinking Water Resources, supra note 1 at Shale gas water tends to be more acidic and enriched in strontium, barium, and bromide. Id. at Marcellus shale brines have unusually high concentrations of bromide, calcium, chloride, magnesium, sodium, and strontium. Id. at Id. at Operators in the Appalachian Basin must adhere to CSSD s 15 performance standards in order to obtain certification. Certification, Ctr. for Sustainable Shale Dev., (last visited May 5, 2016). Operators may send shale gas wastewater to CWTs for treatment and discharge if the operator demonstrates [that] the CWT: (1) is in substantial compliance with a NPDES discharge permit to treat and directly discharge shale wastewater; (2) meets or exceeds a CSSD shale wastewater effluent performance standard; (3) uses best available technology for all fluids discharged; (4) adheres to acceptance procedures designed to assure that the wastewater is 78

5 Wastewater Management Regulation 3.02 method for managing oil and natural gas wastewater, in part, because of the comprehensive federal and state regulations applicable to many facilities. The EPA regulates oil and natural gas wastewater through the effluent limitations guidelines (ELGs) in 40 C.F.R. Parts 435 and 437, which govern the discharge of oil and natural gas wastewater to surface waters and the operation of CWT facilities respectively. 9 Additional federal wastewater management regulations could be forthcoming depending on the outcome of the agency s ongoing study of CWTs and assessment of hydraulic fracturing s impacts on the nation s drinking water resources. [1] Effluent Limitations Guidelines in General. The ELGs for the oil and gas extraction point source category are found at 40 C.F.R. Part 435. Originally promulgated by EPA in 1979, the ELGs at Part 435 apply to offshore, coastal, and stripper operations. 10 Subpart C applies to onshore oil and natural gas operations. 11 With limited exceptions, Subpart C prohibits the direct discharge of oil and natural gas wastewater pollutants associated with production, field exploration, drilling, well completion, or well treatment including produced water, drilling muds, drill cuttings, and produced sand into navigable waters. 12 Subpart E, the agricultural and wildlife water use subcategory, acts as an exception to Subpart C, and allows for the direct discharge, west of the 98th meridian, of produced water that has a use in agriculture or wildlife propagation. 13 The ELGs for the CWT point source category are found at 40 C.F.R. Part 437. Originally promulgated in 2000, the ELGs at Part 437 generally compatible with other wastes being treated at the facility; and (5) does not indirectly discharge through a POTW. Performance Standards, Ctr. for Sustainable Shale Dev., pdf (last updated Dec. 9, 2014) C.F.R. 436, C.F.R C.F.R (2015) C.F.R ; see also 40 C.F.R (2015) C.F.R (2015). Produced water discharges under Subpart E may not exceed effluent characteristics for oil and grease (35 mg/l). The term use in agricultural or wildlife propagation means that the produced water is of good enough quality to be used for wildlife or livestock watering or other agricultural uses and the produced water is actually put to such use during periods of discharge. 40 C.F.R (c). 79

6 3.02 ENERGY & MINERAL LAW INSTITUTE apply to discharges from CWT facilities that treat and recover hazardous or non-hazardous industrial metal-bearing wastes, oily wastes, and organicbearing wastes received from off-site. 14 Part 437 defines CWT facility as any facility that treats (for disposal, recycling, or recovery of material), any hazardous or non-hazardous industrial wastes, hazardous or non-hazardous industrial wastewater, and/or used material received from off-site. 15 The definition includes facilities that treat wastes received exclusively from off-site and facilities that treat wastes generated on-site as well as wastes received from off-site. 16 Part 437 consists of four subparts: Metals Treatment and Recovery; Oils Treatment and Recovery; Organics Treatment and Recovery; and Multiple Wastestreams. For example, Subpart A (Metals Treatment and Recovery) applies to discharges of CWT wastewater that result from the treatment of, or recovery of metals from, metal-bearing wastes received from off-site and other CWT wastewater associated with the treatment or recovery of metal-bearing wastes. 17 If a CWT facility treats wastes subject to multiple subparts, it may elect to either comply with each applicable subpart individually or with Subpart D (Multiple Wastestreams), which sets effluent limits for a more extensive list of parameters than any one subpart. 18 [2] Proposed Amendments to 40 C.F.R. Part 435. Currently, Part 435 does not prohibit the indirect discharge of oil and natural gas wastewater to surface waters through POTWs. 19 On April 7, 2015, the EPA proposed a rule that would prohibit the discharge of un C.F.R (2015). Part 437 also applies to CWT facilities that treat wastewater from other CWT facilities C.F.R (2015). 16 Id C.F.R (2015) C.F.R (2015). Under certain circumstances, a permit writer or control authority may require a CWT facility that treats multiple wastestreams to achieve alternative effluent limitations or standards. For example, alternative limits or standards may be required if the process wastewater flows received for treatment have relatively consistent pollutant profiles. 19 See 40 C.F.R (2015). 80

7 Wastewater Management Regulation 3.02 conventional wastewater to POTWs. 20 The proposed prohibition includes unconventional wastewater associated with production, field exploration, drilling, well completion, or well treatment. 21 EPA notes in the preamble to the proposed rule that unconventional wastewater is not typical of the influent generally handled by POTWs, and that certain constituents can be discharged untreated from POTWs into a receiving stream; disrupt the operation of the POTW (such as by inhibiting biological treatment processes); accumulate in biosolids; and facilitate the formation of disinfection in byproducts. 22 The negative effects of unconventional wastewater discharge to POT- Ws have been generally understood by industry and regulators for several years. 23 For example, in 2011 the Pennsylvania Department of Environmental Protection (PADEP) requested that Marcellus shale operators voluntarily cease delivering unconventional wastewater to the Commonwealth s seven POTWs that had been accepting it for treatment. 24 In response, the Marcellus Shale Coalition, an industry trade association, expressed a commitment on behalf of its members to halt delivery of such wastewater and to review operations to ensure that unconventional wastewater is properly managed. 25 EPA s data collection for the proposed Part 435 rule, which included seven site visits (six of which occurred in Pennsylvania) and Effluent Limitations Guidelines for the Oil and Gas Extraction Point Source Category, 80 Fed. Reg. 18,557 (proposed Apr. 7, 2015) (to be codified at 40 C.F.R. pt. 435). 21 Id. at 18, Id. at 18, Marcellus shale wastewater is particularly difficult to effectively treat at POTWs due to elevated concentrations of halides, heavy metals, organic compounds, radionuclides, and salts. Most of these constituents have the potential to pass through the unit treatment processes commonly used in POTWs and can be discharged into receiving waters. In addition, research has found that sudden, extreme salt fluctuations can disturb POTW biological treatment processes. Assessment of the Potential Impacts of Hydraulic Fracturing for Oil and Gas on Drinking Water Resources, supra note 1 at Technical Development Document for Proposed Effluent Limitations Guidelines and Standards for Oil and Gas Extraction, supra note 3. Effluent samples collected after PADEP s letter showed a statistically significant decrease in several constituents, including barium, strontium, and bromide. Assessment of the Potential Impacts of Hydraulic Fracturing for Oil and Gas on Drinking Water Resources, supra note 1 at Technical Development Document for Proposed Effluent Limitations Guidelines and Standards for Oil and Gas Extraction, supra note 3 at

8 3.02 ENERGY & MINERAL LAW INSTITUTE telephone conferences with unconventional extraction companies and wastewater treatment companies, did not uncover any existing discharges of unconventional wastewater to POTWs. 26 Therefore, it is the agency s position that the proposed prohibition reflects current industry practice and will not impact any operations. 27 The Unified Regulatory Agenda lists August 2016 as the target completion date for the proposed rulemaking. 28 [3] Ongoing Study of CWT Facilities. As part of its Effluent Guidelines Review and Planning Process, EPA reviews, on a biennial basis, certain hazard data to identify industrial categories for which new or revised ELGs may be appropriate. 29 Specifically, EPA targets information from new data sources that provide insight concerning issues such as industrial process changes, emerging contaminants of concern, advances in treatment technologies and pollution prevention practices, and the availability of new and more sensitive analytical methods. 30 In its Preliminary 2014 Effluent Guidelines Program Plan, EPA announced its intention to conduct a detailed study of CWT facilities accepting oil and natural gas extraction wastewater, stating that the trend of sending extraction wastewater to CWT facilities is increasing and identifying concerns regarding whether CWT facilities that discharge to POTWs or surface waters can adequately remove certain pollutants such as total dis- 26 Effluent Limitations Guidelines for the Oil and Gas Extraction Point Source Category, 80 Fed. Reg. 18,557, 18,564 (proposed Apr. 7, 2015) (to be codified at 40 C.F.R. pt. 435). 27 Id. at 18, Current Regulatory Plan and the Unified Agenda of Regulatory and Deregulatory Actions, Office of Info. & Regulatory Affairs, Main (last visited May 5, 2016). 29 Final 2012 and Preliminary 2014 Effluent Guidelines Program Plans, U.S. Envtl. Prot. Agency, 2-4 (Sept. 2014), Id. 82

9 Wastewater Management Regulation 3.02 solved solids (TDS) and radionuclides. 31 As part of the study, EPA stated that it intended to collect data concerning: the extent of CWT facilities accepting oil and natural gas extraction wastewater; available treatment technologies (and their associated costs); the variety of discharge types; the financial characteristics of the industry; and the environmental impacts of discharges. 32 In July 2015, EPA released its Final 2014 Effluent Guidelines Program Plan, in which the agency confirmed that it has initiated the planned study to determine if revisions to the CWT ELGs are warranted. 33 The agency expressed concern that the current regulations do not include limitations for some pollutants commonly found in oil and natural gas extraction wastewater, including TDS, barium, bromide, radium, and strontium. 34 EPA further confirmed that the study will examine both conventional and unconventional wastewater and that it will evaluate: the extent of facilities accepting extraction wastewater; the technologies used to treat such wastewater, their performance, and costs; the financial characteristics of the industry; the environmental impacts of CWT wastewater discharges to waters in the U.S.; and current practices for the management of treatment residuals. 35 EPA stated that it had already begun, and expected to continue, conducting site visits and sampling wastewater and treatment residuals at certain facilities to evaluate the pollutants present, their concentrations, and the performance of treatment technologies. 36 The response to comments document accompanying the Final 2014 Effluent Guidelines Program Plan included both the American Petroleum 31 Id. at 6-2. CSSD requires participating operators that send oil and natural gas wastewater to CWT facilities to conduct an effluent monitoring program that includes TDS and radionuclides. Technical Guidance Effluent Monitoring Programs Wastewater Discharge Standard No. 1, Ctr. for Sustainable Shale Dev., (last visited May 5, 2016). 32 Final 2012 and Preliminary 2014 Effluent Guidelines Program Plans, supra note 29, at 6-2 and Final 2014 Effluent Guidelines Program Plan, U.S. Envtl. Prot. Agency, 5-4 (July 2015), 34 Id. 35 Id. 36 Id. 83

10 3.02 ENERGY & MINERAL LAW INSTITUTE Institute s (API) comments on the Preliminary 2014 Effluent Guidelines Program Plan which were critical of EPA s planned CWT study and the agency s response. 37 Specifically, API expressed concern that the scope of the study could impermissibly include wastewater management facilities not defined as CWTs in Part 437, that EPA did not identify how the CWT point source category was selected for the detailed study, and that revisions to Part 437 could make the ELGs for the CWT point source category inconsistent with those in Part 435 for the oil and gas extraction point source category. 38 In response to API s concerns regarding the scope of the study, EPA agreed that the definition of CWT is set by Part 437, but admitted that the study s scope might include facilities not subject to the CWT point source category. 39 EPA stated that the scope of the study will include all Part 437 facilities accepting oil and natural gas wastewater, including those facilities permitted to discharge produced water for use in agriculture or wildlife propagation and no-discharge facilities. 40 Additionally, EPA stated that it may evaluate information for other types of facilities, including operatorowned and onsite facilities, to fully understand how wastes are managed across the industry and to determine whether the existing definitions in part 437 are clear enough to address the facilities across the oil and gas extraction industry that are accepting wastes for discharge. 41 EPA also responded to API s assertion that the CWT study must be confined to those facilities subject to the CWT point source category ELGs. EPA asserted that it is appropriate to consider how potential changes in the cost of CWT services might affect producer operations and that it expects that many producers own, operate, or lease wastewater treatment systems 37 Response to Comments for the Preliminary 2014 Effluent Guidelines Program Plan, U.S. Envtl. Prot. Agency, 9-10 (July 2015), Docket ID No. EPA-HQ-OW (document?d=epa_hq_ow _ Comment submitted by Roger E. Claff, Senior Scientific Advisory, American Petroleum Institute (API), Regulations.gov (Nov. 20, 2014), gov/#!documentdetail;d=epa-hq-ow Response to Comments for the Preliminary 2014 Effluent Guidelines Program Plan, supra note 33, at Id. 41 Id. 84

11 Wastewater Management Regulation 3.02 that may discharge to POTWs or surface waters. 42 Therefore, it appears possible that EPA may evaluate operator wastewater management practices as part of the CWT study, even on facilities that are operator-owned, on the well site, and not subject to Part 437. EPA also defended how the CWT point source category was chosen for study, noting that a review of the literature and communication with stakeholders such as regions, states, permit writers, industry groups, and environmental advocacy organizations identified new wastewater pollutants not previously regulated at the federal level. 43 EPA did, however, agree with API s comments that any amendments to the ELGs should retain the consistency between Parts 435 and EPA s possible evaluation of wastewater management practices at facilities that are owned by operators on the well site and not subject to Part 437 could yield valuable information for the agency s ongoing assessment of hydraulic fracturing s impacts on drinking water resources. [4] Draft Assessment of Hydraulic Fracturing s Impacts on Drinking Water Resources. In June 2015, EPA released a draft Assessment of the Potential Impacts of Hydraulic Fracturing for Oil and Gas on Drinking Water Resources, a comprehensive assessment of the potential impacts of hydraulic fracturing on the nation s drinking water resources. 45 The draft Assessment is a particularly useful resource because it provides a snapshot of EPA s understanding of the CWT industry, identifying the agency s concerns regarding wastewater management and treatment and areas in which the agency believes additional scientific data is necessary to evaluate the industry s effectiveness. 46 EPA states in the draft Assessment that CWT facilities could affect local drinking water resources if oil and natural gas wastewater is inad- 42 Id. 43 Id. at Id. at Assessment of the Potential Impacts of Hydraulic Fracturing for Oil and Gas on Drinking Water Resources, supra note Id. 85

12 3.02 ENERGY & MINERAL LAW INSTITUTE equately treated prior to discharge. 47 Specifically with respect to the Appalachian Basin, EPA notes that bromide and radionuclides could be problematic if wastewater is not treated properly prior to discharge. 48 EPA does state, however, that on a nation-wide basis, at least one study has found no clear evidence of adverse trends in surface water quality in areas where unconventional development, and CWT management, occurs. 49 EPA expressed concern regarding two studies that show that discharges from oil and natural gas wastewater treatment facilities can elevate TDS, bromide, and chloride in receiving waters. 50 EPA states that bromide concentrations might be particularly problematic in the Appalachian Basin, where existing pollutant loads in surface waters from sources such as acid mine drainage and power plant effluents may prevent dilution. 51 Higher levels of bromide and iodide contribute to increased concentrations of disinfectant byproducts (DBPs), which are carcinogenic. 52 Most brominated DBPs form when water containing organic material and bromide reacts with a disinfectant such as chlorine, at a drinking water treatment plant. 53 Proper treatment of shale gas wastewater prior to discharge prevents the formation of DBPs. 54 In addition, EPA conducted modeling which dem- 47 Id. at Id. 49 Id. at 8-58; see Assessment of Surface Water Chloride and Conductivity Trends in Areas of Unconventional Oil and Gas Development Why Existing National Data Sets Cannot Tell Us What We Would Like to Know, Water Resources Research (Jan. 2015), C98C365D876D4B8126.f01t01?systemMessage=Wiley+Online+Library+will+be+unavailable+on+Saturday+14th+May+11%3A00-14%3A00+BST+%2F+06%3A00-09%3A00+E DT+%2F+18%3A00-21%3A00+SGT+for+essential+maintenance.Apologies+for+the+inco nvenience. 50 Assessment of the Potential Impacts of Hydraulic Fracturing for Oil and Gas on Drinking Water Resources, supra note 1 at Id. at Id. at F-28. Parameters that affect the prevalence of DBPs include: (1) the concentration and type of organic material; (2) disinfectant concentration; (3) ph; (4) water temperature; and (5) disinfectant contact time. 53 Id. at F See id. at Tighter restrictions on TDS in effluent from POTWs and CWTs have led to a reduction in in-stream bromide concentrations. Advanced treatment processes at 86

13 Wastewater Management Regulation 3.02 onstrated that CWTs could reduce the impacts of bromides by discharging during higher stream flow periods and by pulsing discharges. 55 EPA also expressed concern that improperly treated shale gas wastewater can potentially affect drinking water resources through the introduction of technologically enhanced naturally occurring radioactive material (TENORM). 56 EPA notes that the results of POTW sampling are inconclusive as to whether effluents from POTWs receiving CWT-treated oil and [natural gas] wastewater are routinely higher than the effluents from those not receiving such wastewater. 57 For example, a PADEP TENORM study found POTWs receiving CWT-treated oil and natural gas wastewater had lower unfiltered radium-226 concentrations but POTWs not receiving CWT-treated oil and natural gas wastewater had lower filtered radium-226 concentrations. 58 The draft Assessment also mentions that at least one study found that radium-226 levels in stream sediment samples at the point of a CWT discharge were approximately 200 times greater than upstream and background samples. 59 Once again, proper treatment of shale gas wastewater prior to discharge prevents the accumulation of radionuclides in effluents and sediments. Despite its concerns regarding DBPs and radionuclides, EPA concluded that there is no evidence that these contaminants have affected drinking water facilities. 60 Given the specific mention of bromides and radionuclides in the draft Assessment, EPA will likely examine the effluent monitoring results from its ongoing ELG CWT study closely to determine if any indication of improper wastewater treatment exists. CWTs such as reverse osmosis, distillation, evaporation, or crystallization can reduce chloride, bromide, and iodide in surface waters. 55 Id. at Assessment of the Potential Impacts of Hydraulic Fracturing for Oil and Gas on Drinking Water Resources, supra note 1 at In the Marcellus shale, radium and TDS wastewater concentrations appear positively correlated. EPA has found that even when it controls for this TDS dependence, Marcellus wastewater contains statistically more radium than wastewater produced by other shales, with a median total radium content of 2,460 picocuries per liter. Id. at Id at 8-62, Id. 59 Id. at Id. at

14 3.02 ENERGY & MINERAL LAW INSTITUTE EPA also notes in the Assessment that many no-discharge CWT facilities lack the capability to effectively remove TDS. 61 EPA s finding is not particularly surprising given that treatment technologies are typically selected based on the water quality of the wastewater to be treated and the effluent concentrations required for the intended after-treatment use. 62 For example, while CWT facilities that discharge to surface waters in Pennsylvania must achieve a TDS concentration of 500 mg/l, some operators can use a base fluid containing 70,000 mg/l of TDS for completion operations. 63 EPA also identified what it perceives as data gaps in the scientific literature concerning CWT facilities, and expressed a desire for additional information regarding the influents and effluents from facilities that treat unconventional wastewater. 64 Influent information appears particularly useful to evaluating the effectiveness of CWT treatment, as most treatment technologies remove a certain percentage of constituent concentrations. 65 For example, radium in Marcellus shale wastewater may measure in the thousands of pci/l. If a CWT facility is able to remove 95 percent of radium in the wastewater through chemical precipitation, effluent may still exceed a 100 pci/l limitation. 66 Given the draft Assessment s acknowledgement that the EPA needs more data on CWT influent and the Final 2014 Effluent Guidelines Program Plan s statement that the agency may study 61 Id. at See Assessment of the Potential Impacts of Hydraulic Fracturing for Oil and Gas on Drinking Water Resources, supra note 1 at Additionally, whereas 25 Pa. Code Chapter 95 requires discharges to surface water to contain monthly averages of no more than 250 mg/l of total chlorides and 10 mg/l of total barium, some operators can utilize fracturing fluid bases that contain 9,000 mg/l of chlorides and 38 mg/l of barium. Operators may also use blending with freshwater to achieve desired constituent targets. Id. at F Id. at 8-73 and A better understanding of the pollutant removal capabilities of facilities would be helped by influent and effluent sampling, timed so that effluent samples are representative of influent samples to the degree possible. There are limited analyses of influent and effluent samples for a wide range of constituents associated with hydraulic fracturing fluids and wastewaters (e.g., major cations and anions, radionuclides, metals, VOCs, SVOCs, diesel range organics, and total petroleum hydrocarbons). 65 See id. at See id. 88

15 Wastewater Management Regulation 3.02 on-site wastewater management, it is possible that EPA is gathering additional information on unconventional wastewater constituents to evaluate the effectiveness of certain CWT treatment technologies. 67 Additionally, EPA noted that monitoring of surface waters, perhaps through conductivity sampling, is necessary to help assess how often CWT discharges affect receiving waters. 68 EPA also expressed interest in sampling that would yield information regarding legacy effects, such as further sampling related to the accumulation of contaminants in sediments at discharge points. 69 In June 2015, EPA released the draft Assessment to its Science Advisory Board for review and comment. On April 26, 2016, the SAB Hydraulic Fracturing Research Advisory Panel released a draft Review of the EPA s Draft Assessment of the Potential Impacts of Hydraulic Fracturing for Oil and Gas on Drinking Water Resources, a comprehensive evaluation of the draft Assessment. 70 The draft report will undergo review by the entire SAB prior to finalization and delivery to EPA. 71 The SAB panel found that the draft Assessment clearly and accurately summarizes a large amount of existing information on the rapidly evolving topic of treatment, reuse, and disposal of wastewater associated with hydraulic fracturing, and recognizes the significant data and information gaps The SAB panel, however, criticized significant portions of EPA s assessment of CWTs, noting that the agency provided little in the way of new or original findings, did not adequately address the potential frequency or severity of impacts of wastewater on drinking water quality (or potential scenarios that could influence such impacts), and did not provide enough 67 See id.; Response to Comments for the Preliminary 2014 Effluent Guidelines Program Plan, supra note 33, at Assessment of the Potential Impacts of Hydraulic Fracturing for Oil and Gas on Drinking Water Resources, supra note 1 at Id. 70 Draft Review of the EPA s Draft Assessment of the Potential Impacts of Hydraulic Fracturing for Oil and Gas on Drinking Water Resources, U.S. Envtl. Prot. Agency, (Apr. 2016), recentadditions?opendocument. 71 Full SAB review of the panel s draft report is scheduled for June 14-15, Draft Review of the EPA s Draft Assessment of the Potential Impacts of Hydraulic Fracturing for Oil and Gas on Drinking Water Resources, supra note 70 at

16 3.02 ENERGY & MINERAL LAW INSTITUTE support for the proposition that there is no evidence that wastewater contaminants have affected drinking water facilities. 73 The SAB panel was particularly critical of EPA s lack of discussion regarding bromides and radionuclides. 74 With respect to bromides, the panel wrote that EPA s assessment did not address trihalomethane and haloactic acid formation, which are caused by bromides and considered more toxic than other types of DBPs. 75 With respect to radionuclides, the panel asserted that the draft Assessment does not mention that elevated radionuclide concentrations are likely to be present in the effluents from some [CWTs] and most POTWs treating hydraulic fracturing-related wastewaters. 76 The panel did not cite any scientific papers, research, or support for the proposition that CWT and POTW effluents are likely to contain elevated radionuclide concentrations. 77 The draft Review also expressed an interest in further EPA discussion on the potential of shale gas wastewaters to contain certain nitrosamines and antiscalants and on the management of treatment residuals. 78 It is possible that EPA will respond to the panel s criticisms by more thoroughly exploring influent and effluent bromide and radionuclide concentrations to ensure that CWT facilities are sufficiently removing constituents of concern from wastestreams prior to surface water or POTW discharge. 79 While EPA s Assessment expresses some concern regarding the ability of certain CWTs, such as no-discharge facilities, to remove constituents such as bromides and TDS, overall the Assessment appears to confirm industry belief that properly treated wastewater poses no harm to drinking water supplies. 73 Id. at Id. at Id. at Id. at Id. Instead, the Panel criticized EPA s cited studies, stating that they did not take direct samples from wastewater influent. 78 Draft Review of the EPA s Draft Assessment of the Potential Impacts of Hydraulic Fracturing for Oil and Gas on Drinking Water Resources, supra note 66 at See id. The SAB is concerned that the zero discharge facilities that will produce water for reuse will have extremely high radium concentrations that will consequently pose an elevated risk if leaks or spills of these reuse waters occur. 90

17 Wastewater Management Regulation 3.02 [5] State Regulation of CWT Facilities. Pennsylvania is the only state in the Appalachian Basin with adopted regulations that control the permitting of both discharge and no-discharge CWT facilities. 80 PADEP permits no-discharge CWT facilities through the issuance of General Permit WMGR123, which allows permittees to treat oil and natural gas extraction wastewater and to return it to operators for reuse in further development operations. 81 Pennsylvania has also adopted technology-based treatment regulations for industrial wastes, which include wastewater generated by oil and natural gas activities. 82 Under 25 Pa. Code Chapter 95, discharges of wastewater resulting from fracturing, field exploration, drilling, or completion of natural gas wells may be authorized only from CWT facilities that comply with Part According to the regulations, CWT facilities that discharge to surface waters or POTWs must comply with EPA s Part 437 new source performance standards and the four constituent-specific parameters in Chapter 95 that were added to the regulations in Specifically, the discharge may not contain, as a monthly average, more than: (1) 500 mg/l of TDS; (2) 250 mg/l of total chlorides; (3) 10 mg/l of total barium; or (4) 10 mg/l of total strontium. 85 The Chapter 95 constituent-specific parameters do not apply to discharges that existed prior to the 2010 amendments, but preexisting discharges to surface waters essentially discontinued following a May 19, 2011 PADEP request that operators cease sending shale wastewater 80 Assessment of the Potential Impacts of Hydraulic Fracturing for Oil and Gas on Drinking Water Resources, supra note 1 at Texas is the only other state in the country with no-discharge CWT regulations. The Texas Railroad Commission regulates and categorizes wastewater facilities into two different categories, off-lease commercial recycling facilities (mobile) and stationary commercial recycling facilities. See 16 Tex. Admin. Code 3.8 (2016). 81 See General Permit WMGR123 Processing and Beneficial Use of Oil and Gas Liquid Waste, Pa. Dep t of Envtl. Prot. (Mar. 14, 2014), document/924045/wmgr123_pdf Pa. Code (2016) Pa. Code (2016) Pa. Code 95.10(b)(3) (2016). 85 Id. 91

18 3.02 ENERGY & MINERAL LAW INSTITUTE to 15 preexisting facilities, including eight CWTs and seven POTWs, that were exempt from the 2010 amendments. 86 The content of flowback and produced water can vary greatly depending on factors such as the composition of injected hydraulic fracturing fluids, the targeted geological formation and associated hydrocarbon products, the stratigraphic environment, and subsurface processes and residence time. 87 For example, Marcellus shale wastewater can contain an average of: 106,400 mg/l of TDS; 57,400 mg/l of chlorides; 2,200 mg/l of barium; and 1,700 mg/l of strontium. 88 However, the Chapter 95 limits apply to all wastewater from the fracturing field exploration, drilling, or completion of natural gas wells. Chapter 95 also promotes the use of no-discharge wastewater treatment and recycling methods by requiring well operators to develop and update annually a source reduction strategy that identifies the methods and procedures the operator will use to maximize the recycling and reuse of flowback and production fluid in the fracturing of additional natural gas wells or for other beneficial uses approved by PADEP. 89 At a minimum, the operator s strategy must include: (1) a complete characterization of the operator s wastewater stream, including chemical analyses, TDS concentrations, and monthly generation rate of flowback and production fluid at each natural gas well; (2) a description and evaluation of potential wastewater source reduction options through recycling, reuse, or other beneficial methods; (3) the rationale for selecting the source reduction methods to be employed by the operator; and (4) quantification of the flowback and production fluid 86 The 2010 amendments were at least partly in response to concerns over high TDS levels in the Monongahela River basin and studies linking high TDS to disinfection byproducts in drinking water systems. Assessment of the Potential Impacts of Hydraulic Fracturing for Oil and Gas on Drinking Water Resources, supra note 1 at 8-13, Id. at Id. at E-7, E-8, E-15, and E-17. Constituent concentrations appear heavily dependent upon the amount of time the produced water spent in the target formation. For example, the TDS concentration of Marcellus wastewater generally varies from 35,000 mg/l (typical for seawater) three days after completion to 200,000 mg/l within 90 days of completion. Id. at Pa. Code 95.10(b)(2) (2016). 92

19 Wastewater Management Regulation 3.03 generated by each well which is recycled or reused either to fracture other natural gas wells or for other approved beneficial uses. 90 Pennsylvania is also in the process of approving a regulatory package that would significantly affect how oil and natural gas operators manage flowback and produced fluids at the well site. 91 On February 3, 2016, the Commonwealth s Environmental Quality Board approved a regulatory package, intended to be codified at 25 Pa. Code Chapter 78 (conventional wells) and Chapter 78a (unconventional wells). 92 If the approved regulations successfully complete review at the General Assembly and Pennsylvania Attorney General s Office, they would: prohibit the use of pits in unconventional operations, institute registration requirements for new underground storage tanks, require secondary containment for certain mixing, aerating, and filtering operations, and prohibit the use of centralized impoundments Underground Injection Control Well Disposal. Under the Safe Drinking Water Act (SDWA), operators may dispose of oil and natural gas wastewater through Class II injection wells regulated through the UIC Program. 94 For operators, underground injection is generally the least expensive management strategy unless significant transportation expenses are incurred. 95 The UIC Class II program is overseen by EPA headquarters and implemented by either individual states or EPA regions, 90 Id. 91 See Oil and Gas Surface Regulations, Pa. Dep t of Envtl. Prot., pa.gov/business/energy/oilandgasprograms/oilandgasmgmt/public-resources/pages/ Oil-and-Gas-Surface-Regulations.aspx#.VzNbjoQrJph (last visited May 11, 2016). 92 Id. 93 See id. 94 See 42 U.S.C. 300h. Nationally, EPA estimates that more than 98 percent of total oil and natural gas wastewater is disposed of through UIC wells, with 40 percent injected into Class II wells. In the Susquehanna River Basin, EPA estimates that operators inject between percent of total wastewater in UIC wells. Assessment of the Potential Impacts of Hydraulic Fracturing for Oil and Gas on Drinking Water Resources, supra note 1 at ES-8, Class IID wells are used exclusively for the purpose of disposing of oil and natural gas wastewater. 95 Id. at

20 3.03 ENERGY & MINERAL LAW INSTITUTE depending on whether a state obtains primacy. 96 In Appalachia, Ohio and West Virginia have obtained primacy for the Class II program, but EPA Region 3 manages the Class II program in Pennsylvania, which has not obtained primacy. 97 The use of UIC wells for the injection of oil and natural gas wastewater is decidedly modest in the Appalachian Basin when compared to other shale plays. 98 For example, as of May 15, 2016, the Appalachia Basin had 216 Class IID wells in Ohio, 47 in West Virginia, and just eight in Pennsylvania, whereas alone Texas had nearly 7,900 such wells in early Additionally, the average disposal rate of a UIC well in the Appalachian Basin is significantly more modest than in some other states. Ohio, Pennsylvania, and West Virginia all have average disposal rates under 9,000 gallons per well per day, whereas Texas has an average disposal rate greater than 54,000 gallons per well per day. 100 One emerging concern regarding the use of Class IID wells is the potential of induced seismicity. 101 EPA has stated that disposal wells are one of a number of historical causes of induced seismicity, along with the 96 See 42 U.S.C. 300h Drinking Water: EPA Needs to Collect Information and Consistently Conduct Activities to Protect Underground Sources of Drinking Water, U.S. Gov t Accountability Office, 38 (Feb. 26, 2016), 98 See id. at Id. (counting number of Class IID wells in Texas); Underground Injection Control (UIC) General Information, Ohio Dep t of Natural Res. Div. of Oil & Gas Res., oilandgas.ohiodnr.gov/industry/underground-injection-control (last visited May 16, 2016) (used in calculating Ohio statistics); West Virginia Department of Environmental Protection Office of Oil and Gas, W. Va. Dep t of Envtl. Prot., Pages/default.aspx (last visited May 16, 2016) (used in calculating West Virginia statistics); PADEP Oil and Gas Reporting Website, supra note 2 (used in calculating Pennsylvania statistics). 100 Drinking Water: EPA Needs to Collect Information and Consistently Conduct Activities to Protect Underground Sources of Drinking Water, supra note 93 at Ohio has an average disposal rate of 8,900 gallons per well per day. Pennsylvania has an average disposal rate of 6,380 gallons per well per day. West Virginia has an average disposal rate of 7,180 gallons per well per day. 101 See Minimizing and Managing Potential Impacts of Injection-Induced Seismicity from Class II Disposal Wells: Practical Approaches, U.S. Envtl. Prot. Agency (Feb. 2015), 94

21 Wastewater Management Regulation 3.03 construction and management of dams, water reservoirs, and skyscrapers; mining activities; oil and natural gas production; and geothermal energy production. 102 Although the Class II UIC program does not have regulations specific to induced seismicity, primacy agencies have discretionary authority that allows additional conditions to be added to injection permits as needed to protect underground sources of drinking water, including additional requirements for construction, corrective action, operation, monitoring, or reporting. 103 As of 2014, EPA stated that it was unaware of any underground sources of drinking water (USDW) contamination resulting from seismic events possibly related to Class IID wells. 104 Nonetheless, as concerns regarding induced seismicity evolve, primacy agencies will likely continue collecting information regarding the potential for induced seismic events and use this information to impose additional permit conditions if such measures are required to protect USDWs. [1] EPA Gathers Information, Assesses UIC Wells. In December 2014, the EPA renewed an Information Collection Request (ICR) for the UIC Program. 105 EPA s Information Collection Request Supporting Statement notes that the agency plans to use the information collected to monitor and enforce the UIC program. 106 The ICR would continue the collection of monitoring data and test results from operators of Class II wells and summary information on permits, compliance and enforcement, inspections, mechanical integrity testing, and inventory data for all well classes from primacy agencies. 107 EPA states that it will use the information collected to make decisions regarding: UIC regulations; com- 102 Id. at ES Id. citing 40 C.F.R (b) and (a)(9). 104 Id. 105 Information Collection Request Submitted to OMB for Review and Approval; Comment Request; Underground Injection Control (UIC) Program (Renewal), 79 Fed. Reg (proposed Dec. 29, 2014). 106 Information Collection Request for the Underground Injection Control Program, Regulations.gov, 1 (Dec. 2014), HQ-OW &disposition=attachment&contentType=pdf. 107 Id. at 1, 2. 95