NPDES FAQs for Fracking Operations in the Marcellus Shale—Part 1
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Q: Are hydraulic fracturing, or “fracking,” operations allowed to discharge wastewater directly to waters of the United States if they have a NPDES permit?
A: The Clean Water Act (CWA) prohibits the discharge of pollutants by point sources into waters of the United States, except in compliance with certain provisions of the CWA, including Section 402, which establishes the NPDES program. Under the NPDES program, the Environmental Protection Agency (EPA) or an authorized state agency may issue a permit allowing the discharge of pollutants into waters of the United States. However, each NPDES permit is developed with effluent limitations based on both the technology available to control the pollutants (i.e., technology-based effluent limits) and the limits that are protective of the water quality standards of the receiving water (i.e., water quality-based effluent limits). The technology-based requirements for direct discharges from oil and gas extraction facilities into surface waters are found in 40 CFR Part 435, Subpart C, which states, “there shall be no discharge of wastewater pollutants into navigable waters from any source associated with production, field exploration, drilling, well completion, or well treatment (i.e., produced water, drilling muds, drill cuttings, and produced sand).”*
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Q: Are fracking operations that do not have a discharge or do not propose to have a discharge required to obtain a NPDES permit?
A: No. According to 40 CFR 122.21(a), facilities that “discharge or propose to discharge” are required to have a permit. However, operators should also consult with state agencies that the EPA says “can use their own authority to ensure that the no discharge requirement in the effluent guideline is properly applied and to ensure that operator compliance is demonstrated.”
The EPA also notes that operators of facilities subject to a zero discharge requirement may want to consider applying for NPDES permit coverage “to qualify for the upset or bypass defense in the event of an unanticipated discharge resulting from an exceptional incident that otherwise would trigger a CWA Section 301 violation for discharging without a permit.”
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Q: Can a fracking facility discharge wastewaters from shale gas extraction (SGE) to a publicly owned treatment works (POTW)?
A: While it is possible that a POTW could accept SGE wastewaters, EPA’s General Pretreatment regulations prohibit the introduction of wastewater into a POTW in certain defined circumstances, including the introduction of any pollutants that “pass through” or cause “interference” with POTW operations. According to Part 403.3(k)(1), “interference” is defined as “inhibiting or disrupting the POTW, its treatment processes or operations, or its sludge processes, use or disposal.” As a result, this prohibition applies to both the introduction of pollutants into the POTW that would disrupt the treatment process and the introduction of pollutants in concentrations that contaminate biosolids and make them inconsistent with the POTW’s chosen method of use or disposal.
Similarly, “pass through” is defined at 40 CFR 403.3(p) as “a discharge which exits the POTW into waters of the United States in quantities or concentrations which, alone or in conjunction with a discharge or discharges from other sources, is a cause of a violation of any requirement of the POTW’s NPDES permit (including an increase in the magnitude of a violation).” These requirements apply to all nondomestic discharges, including those from SGE, which generally contain a number of materials that could violate a POTW’s NPDES permit via interference and/or pass-through.
*Shale gas wells from formations that are located west of the 98th meridian may be regulated under the Agriculture and Wildlife Water Use Subcategory of the Oil and Gas Extraction Category (40 CFR Part 435, Subpart E).