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EPA Proposes to Adopt New Coalbed Methane and Shale Gas Wastewater Discharge Standards in 2013 and 2014
V&E Shale Insights — Tracking Fracking E-communication, October 21, 2011

By Larry Nettles and Hana Vizcarra

The U.S. Environmental Protection Agency (EPA) announced on October 20, 2011, that it intends to develop new wastewater discharge standards for shale gas extraction and coalbed methane extraction. The new rules developed will be part of EPA’s Effluent Guidelines Program. Under the federal Clean Water Act (CWA), EPA must publish a schedule for proposed rulemakings for its Effluent Guidelines Program every two years. The October 20 announcement completes the final step in establishing EPA’s 2010 Effluent Guidelines Program, and EPA will now begin developing regulations to implement its proposed effluent guidelines.

Currently, there are no national standards governing discharges of coalbed methane extraction wastewater, and these discharges are regulated on a state-by-state basis. Although some water produced by coalbed methane extraction is relatively clean and can be discharged with minimal treatment, other discharges contain high levels of salts and minerals that are not easily removed from the wastewater. EPA is proposing to establish national standards for discharges of wastewaters generated in connection with coalbed methane production to surface waters and to treatment facilities. EPA expects to solicit public comment on a proposed rule in 2013. Available technology options for reducing salt and mineral concentrations mentioned in the pre-publication version of the 2010 Effluent Guidelines Program Plan are ion exchange and reverse osmosis. A study report on coalbed methane and its discharges was released with the 2010 Plan, and EPA is now planning to adopt national standards in response to that report.

For shale gas wastewater, EPA will consider imposing pre-treatment standards for discharges to a wastewater treatment facility. Under existing provisions of the CWA, shale gas wastewater may not be discharged directly into waterways without a National Pollutant Discharge Elimination System (NPDES) permit. Since NPDES permits are difficult to obtain, shale gas wastewater is most often injected into underground formations that do not contain potable water or are cleaned and reused for hydraulic fracturing. However, in some areas of the country, such as Pennsylvania, it is not uncommon for flowback water to be sent to publicly and privately owned treatment facilities, which are not universally equipped to treat the salts and minerals typically contained in the flowback water. EPA expects to propose a rule for shale gas wastewater discharges to wastewater treatment plants in 2014. Pretreatment standards will require operators to treat this produced water in accordance with national technology-based regulations rather than merely meeting local limits currently applicable to wastewater treatment plant discharges. It is important to note that EPA has not proposed to develop requirements relating to re-injection or re-use of flowback water, which are the two most common techniques for handling hydraulic fracturing wastewater.

What This Means to You
EPA’s October 20 announcement provides notice that the agency will be developing national standards for discharges of shale gas and coalbed methane wastewaters to surface waters and to wastewater treatment plants that subsequently discharge to surface waters. Rulemakings under the Effluent Guidelines Program require implementation of the best available control technologies that are economically achievable (BAT). For many operators, the new standards could significantly increase the cost of disposing wastewater produced in connection with shale gas and coalbed methane extraction activities. EPA has already conducted a study on coalbed methane, included in the 2010 Plan, and EPA plans to conduct outreach, data gathering, site visits, and a national industry survey in the development of its shale gas pretreatment standards. Operators who are concerned about the potential impacts of these new requirements are encouraged to participate in this process as well as the public comment process expected to occur in 2013 and 2014.

For more on these upcoming rulemakings and to view the 2010 Effluent Guidelines Plan, visit www.water.epa.gov. For more information, please contact members of V&E's Shale and Fracking practice group: Casey Hopkins, Larry Nettles, or Jim Thompson. Visit our website to learn more about V&E’s Environmental practice.

This information is provided by Vinson & Elkins LLP for educational and informational purposes only and is not intended, nor should it be construed, as legal advice.

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