Flowback: Federal Regulation of Wastewater from Hydraulic Fracturing

Natural gas produced through hydraulic fracturing remains a critical, and controversial, component of U.S. energy production. A key environmental issue associated with fracking is the management and disposal of the enormous quantities of wastewater generated in the process.Substantial federal authority exists to regulate fracking wastewater under the Resource Conservation and Recovery Act and the Clean Water Act. Regulation under RCRA, however, depends on classification of the wastewater as a RCRA “hazardous waste.” Although EPA has generally exempted oil and gas wastes, including fracking wastewater, from classification as a RCRA hazardous waste, it appears that fracking wastewater would not generally be classified as a hazardous waste even without the exclusion. Tailored regulation under RCRA could, however, be accomplished through EPA adopting a set of “contingent management” requirements, but this would first require EPA to list fracking wastewater as a RCRA hazardous waste.The discharge of fracking wastewater is also subject to regulation under the Clean Water Act. Fracking wastewater generated from the onshore production of shale gas (and presumably natural gas from tight sandstone) is generally subject to a national “technology-based” zero discharge limitation. Since 1982, however, EPA has claimed that no national effluent limitations apply to the discharge of wastewaters generated from production of coal bed methane. EPA’s position, originally adopted through private correspondence, is open to question, and its proposed decision to drop development of such limitations is based on unexplained economic judgments. Although EPA has consistently claimed that CBM discharges are subject to site-specific limits based on “best professional judgment,” EPA has provided little guidance on development of such limits.In addition, EPA has established no specific limitations on the discharge of fracking wastewater from Publicly Owned Treatment Works. EPA policies suggest it should adopt a federal “pretreatment standard” that prohibits the transfer of fracking wastewater to POTWs.EPA has the authority, but not the will, to establish a set of consistent national regulations that will assure the proper management of fracking wastewater. EPA must address these issues to assure that continued reliance on fracking in the U.S. is based on environmentally sound practices