Special Topics in Environmental Management, Wastewater

EPA Affirms ‘Zero Discharge’ Rule for Unconventional O&G Facilities

After acquiring new information, the EPA has decided not to revise its June 28, 2016, Effluent Limitations Guidelines and Standards for the Oil and Gas Extraction Point Source Category. That action finalized pretreatment standards for unconventional oil and gas (UOG) facilities based in part on the Agency’s understanding that no such facilities in the country were discharging wastewater to publicly owned treatment works (POTWs). Accordingly, the Agency set an August 29, 2016, compliance date for the UOG rule, which prohibited UOG discharges to POTWs, known as a zero-discharge requirement.

But after promulgating the UOG rule, the Agency learned that certain UOG facilities in Pennsylvania were in fact discharging wastewater to POTWs. The information gap was caused by different definitions of unconventional used by the EPA and the commonwealth of Pennsylvania. After acquiring this information, the EPA extended the compliance date of the UOG rule for facilities that had been lawfully discharging to POTWs by 3 years to August 29, 2019.

In its most recent notice, the Agency says that Pennsylvania’s UOG facilities have additional economically and technically achievable discharge options, and, therefore, the 2016 UOG rule will remain in place without revisions.

POTWs Cannot Treat UOG Wastewater

The UOG rule defines unconventional oil and gas operations to include operations involving “crude oil and natural gas produced by a well drilled into a shale and/or tight formation (including, but not limited to, shale gas, shale oil, tight gas, and tight oil.”

In the rule, the EPA noted that wastewater from UOG extraction can contain high concentrations of total dissolved solids (TDSs), radioactive elements, metals, chlorides, sulfates, and other dissolved inorganic constituents that POTWs are not designed to remove. As a result, these UOG wastewater constituents can be discharged, untreated, from the POTW to the receiving stream; can disrupt the operation of the POTW (e.g.,by inhibiting biological treatment); can accumulate in biosolids (sewage sludge), limiting their beneficial use; and can facilitate the formation of harmful disinfection by-products.

“Where UOG extraction wastewaters have been discharged through POTWs and private wastewater treatment plants in the past, it has been documented that the receiving waters have elevated levels of TDS, specifically chlorides and bromide,” said the Agency. “The concentration of TDS in UOG extraction wastewater can be high enough that if discharged untreated to a surface water it has the potential to adversely affect a number of the designated uses of the surface water, including use as a drinking water source, aquatic life support, livestock watering, irrigation, and industrial use.”

Court Intervenes

Following promulgation of the UOG rule, “interested parties” informed the Agency that 22 UOG facilities in Pennsylvania discharged at least some of their wastewater to POTWs. The informational discrepancy resulted from the state’s narrower definition of unconventional.

The Pennsylvania Grade Crude Oil Coalition (PGCC) also filed a petition for review of the rule in the U.S. Court of Appeals for the 3rd Circuit. PGCC indicated that the EPA incorrectly found that there were no existing discharges to POTWs by facilities that meet the definition of unconventional in the UOG rule.

In response, the EPA filed a motion (unopposed by PGCC) for voluntary remand without vacatur, which was granted by the court. In the motion, the EPA discussed the postpromulgation information it had acquired, acknowledging that this new information was inconsistent with the record for the rule. The EPA explained that the Agency requested the remand to consider any additional evidence relevant to the UOG rule, develop the record, and take any follow-up action as appropriate.

Low Cost of Compliance

Much of the EPA’s reconsideration involved determining the availability of alternative disposal (e.g., centralized waste treatment or Class II underground injection) and the additional cost of disposal the 22 Pennsylvania facilities will incur. The Agency found that disposal alternatives were available for all the UOG facilities and that the cost range of the rule was $131 to $279 per entity. The EPA also found that 7 facilities would experience “negative profits irrespective of the UOG rule’s incremental costs” while none of the remaining 15 facilities would be at risk of closure as a result of complying with the UOG rule.

The EPA adds that 2017 data from Pennsylvania indicated that all 22 entities were in business.

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