Saturday, September 3, 2011
In the past, I have blogged about the EPA's concerns surrounding the treatment of water that flows back up out of hydraulically fractured wells in Pennsylvania. The wastewater--called "flowback water"--contains some of the chemicals that were originally mixed with water to form the fracturing solution, and various substances picked up underground, including low levels of naturally occurring radioactive materials. The New York Times published an article on February 26 worrying that Pennsylvania's wastewater treatment plants were not adequately equipped to treat the millions of gallons of flowback water from Pennsylvania's many hydraulically fractured Marcellus Shale wells. The EPA then sent a letter stating that "several sources of data . . . indicate that the wastewater resulting from natural gas drilling operations (including flowback . . .) contains variable and sometimes high concentrations of materials that may present a threat to human health . . . . " The DEP responded, citing to tests downstream of the treatment plants' discharges and asserting in a letter to the EPA (Region III) that the water was safe.
In my classes and writing, I have used Pennsylvania as an example of a state that sends much of its fracturing flowback waste through wastewater treatment plants--unlike states like Texas, which primarily rely on Underground Injection Control wells for disposal. During a recent trip to Pittsburgh, though, I learned that the flowback treatment situation in Pennsylvania has changed substantially. Prior to this change, Pennsylvania had implemented special treatment requirements for flowback water sent from centralized wastewater treatment facilities to POTWs, setting monthly average discharge limits for Total Dissolved Solids, chlorides, strontium, and barium released from the plants in 25 Pa. ADC 95.10. Only "new and expanding" discharges were (and are) subject to these limits, however, and grandfathered plants, it appears, continued accepting the flowback waste without having to comply with these new standards.
In April 2011, the Pennsylvania Department of Environmental Protection and Governor Tom Corbett changed the picture, requesting (but not ordering) that gas operators stop sending flowback water to grandfathered municipal wastewater treatment plants in Pennsylvania. It appears that operators generally have taken action in response to this request and are now recycling more flowback water and sending flowback waste across the Pennsylvania border into Ohio. Pennsylvania environmental groups are not so sure that disposal at Pennsylvania treatment plants has ended, though. They filed a lawsuit in the U.S. District Court for the Western District of Pennsylvania this summer, claiming that a grandfathered wastewater treatment plant in Pennsylvania, which is still accepting flowback water and cannot adequately treat it, is violating the Clean Water Act and needs to modify its NPDES permit. The EPA, in the meantime, asked the six leading gas companies in Pennsylvania (through CWA Section 308 requests) to provide more information on their past and current flowback disposal practices. It also sent a letter to Secretary Krancer of the DEP, suggesting that the DEP "seek formal written confirmation of the change of disposal methods since it may affect which POTWs are subject to the federal pretreatment regulations." The EPA also made clear that the DEP should notify the EPA whenever it "becomes aware . . . of the introduction of all new pollutants into POTWs from indirect discharges." EPA may then "determine that additional permit requirements are needed to protect water quality and prevent pass-through or interference."
In sum, it appears that since the DEP's and Governor Corbett's request of gas operators in April to stop disposing of flowback water in Pennsylvania wastewater treatment plants, many have. But in some cases, this has just pushed waste across the border, and some Pennsylvania wastewater treatment plants may potentially still be accepting flowback water. Many thanks to the students and attorneys in Pennsylvania who updated me on the wastewater situation.
If you want a recent case study in wastewater, NPDES permitting, and the general challenges of dealing with large quantities of a relatively new type of waste for a Fall 2011 Environmental Law class, Pennsylvania may provide a good one.