EPA Expands Guidelines on Fracking Wastewater, but Will They Enforce It?

USDA Photo by Lance Cheung.One of the most intractable problems related to fracking is that each well drilled creates millions of gallons of radioactive and toxic wastewater.

For the past several years, the Environmental Protection Agency has faced enormous public pressure to ensure this dangerous waste stops ending up dumped in rivers or causing contamination in other ways.

But the drilling boom has proceeded at such an accelerated pace in the United States that regulators have struggled to keep up, to control or even track where the oil and gas industry is disposing of this radioactive waste. As a consequence, hundreds of millions of gallons of partially treated waste have ended up in the rivers from which millions of Americans get their drinking water. 

An internal draft EPA document leaked to DeSmog gives a small window into how, after a full decade since the start of the drilling boom, the agency is responding.

The document, dated March 7, 2014, is titled “National Pollutant Discharge Elimination System Permitting and Pretreatment for Shale Gas Extraction Wastewaters: Frequently Asked Questions.”

It's revealing for what it shows about how EPA staff are taking the hazards of fracking wastewater more seriously — and also how little things have changed.

“In general, the EPA memo does a good job of making clear that fracking wastewater discharges are covered under the Clean Water Act, and that proper discharge permitting is required, including setting limits to protect water quality standards and to comply with technology based standards in the Clean Water Act,” explained Clean Water Action attorney Myron Arnowitt, who was asked by DeSmog to review the document. “It is mostly an increased level of detail for regional EPA staff regarding permitting issues under the Clean Water Act, compared to the pervious memo in 2011.”

The document, intended as a guide for local regulators on how the Clean Water Act should be interpreted and applied, is impressive in many ways.

It's far more in-depth than the prior FAQ. It has twice as many pages as the version the EPA published in 2011, after it was revealed that regulators had allowed industry to send hundreds of millions of gallons of this waste through municipal water treatment plants in Pennsylvania that were not equipped to remove its most dangerous toxins before the water was then discharged into rivers, sometimes just a mile or so upstream from drinking water intake pipes.

The EPA's new draft document now lists almost two dozen individual substances — like benzene, radium, and arsenic — that it says have been found at high enough levels in shale wastewater to cause concern. By contrast, the 2011 version focused mostly on the high levels of salts found in the waste.

The new document also explains that the substances it lists are not the only potential pollutants that must be removed before water can be considered fully treated and ready to enter rivers and streams. It explains that each treatment plant can only take wastewater once regulators are satisfied that they know what is actually in it.

This has been an ongoing challenge for regulators in the past, as the industry has refused to reveal some of the actual chemicals or their levels to the public because, they explain, it would put them at a competitive disadvantage by potentially disclosing trade secrets.

The new EPA document also serves as a final nail in the coffin for a common industry talking point. This is the claim that fracking's waste is harmless because it is 99 percent sand and water, with a few chemicals like those used in ice cream mixed in.

“The wastewater that is generated after hydraulic fracturing operations is essentially salt, sand and water,” Energy in Depth, the shale industry's public relations arm, wrote on Jan. 3.

But, in its dry technical jargon, the EPA explains that tests have found chemicals and heavy metals in the shale industry's waste at levels high enough to pose hazards to drinking water safety, human health and the environment.

“Further examination based on type of criteria showed that: drinking water maximum contaminant levels (MCLs) were exceeded for 8 parameters; water quality criteria for human health protection were exceeded for 9 parameters; and criteria for aquatic life protection were exceeded for 16 parameters,” the EPA's new draft document explains.

These hazards are drawing increased attention from federal regulators in the wake of recent reports that fracking chemical exposures can be fatal. In at least four cases, the chemicals in fracking waste have been so powerful that they have killed workers, according to a May 19 announcement by the National Institute for Occupational Safety and Health (NIOSH).

“According to our information, at least four workers have died since 2010 from what appears to be acute chemical exposures during flowback operations at well sites in the Williston Basin (North Dakota and Montana),” the researchers wrote. “While not all of these investigations are complete, available information suggests that these cases involved workers who were gauging flowback or production tanks or involved in transferring flowback fluids at the well site.”

Experts including EPA officials, environmental advocates and front-line scientists who reviewed the EPA's draft FAQ document for DeSmog generally praised it as thorough. But the document also drew criticism for failing to directly address one of the key issues in wastewater disposal: recycling.

“I would have loved to see EPA directly ask 'what is the best way to dispose of frack wastewater?'” one scientist said, “And answer: recycling and re-use.”

“It’s important to note that these are only for shale gas, whereas we believe that EPA needs to have standards for all oil and gas wastewater, including wastewater from coalbed methane operations, so this is in no way a full fix to the problem,” added Kate Sinding, an attorney for the Natural Resources Defense Council, also asked by DeSmog to review.

Of course, the EPA's draft document on the wastewater must be read against the backdrop of certain realities. Laws are only as good as their enforcement.

The EPA's new document is strong in many ways. But recent history has shown us nothing if not that the EPA often pulls out of enforcement actions and investigations when confronted by strong industry opposition. To be clear, the front-line scientists and regional officials in closest contact with the effects of shale gas extraction have rarely been the problem when it comes to enforcement. It has often been the political appointees that have pulled back on the federal agencies' duties.

In June, the agency pulled out of investigating water contamination claims in Pavilion, WY after the industry and its allies in Congress pushed back against the EPA's initial findings (EPA's own internal watchdog Inspector General later concluded that the original investigation had been justified).

Al Armendariz, who was the EPA's top administrator for oil-rich southern states including Texas, Oklahoma, and Louisiana, was driven from office after Republicans in Congress took aim at him over comments he made about his approach to law enforcement. There was also the instance where EPA pulled back from its investigation in Dimock, Pennsylvania in 2012 — but then internal agency documents obtained by the LA Times showed staff believed fracking had caused water contamination there.

Nowhere is this pattern clearer than when it comes to the Congressionally-mandated federal fracking study that is supposed to assess whether fracking poses a threat to drinking water. That study is now long overdue, and it serves as a textbook example of the dichotomies within EPA.

According to the New York Times, which reviewed leaked drafts of the study over time, important topics like landfill runoff from drilling waste disposal sites and modeling whether rivers can dilute fracking wastewater after it is processed by treatment plants, were cut from study plans as they progressed up to the political appointees, at times over the objections of EPA staffers on the front line.

EPA higher-ups even attempted to muzzle staff and prevent them from speaking about ambitions in that study, the leaked documents showed.

“He could not have been more adamant or clear about the development of any documentation related to our efforts on Marcellus,” David Campbell, director of the E.P.A. Region 3 Office of Environmental Innovation, wrote as he described the instructions he had been given by the agency’s regional administrator, Shawn M. Garvin. “His concern is that if we spell out what we think we want to do (our grandest visions) that the public may have access to those documents and challenge us to enact those plans.”

With internal conflicts rendering the EPA slow and erratic in its response to fracking-related pollution problems, citizen groups have tried to fill the void and enforce environmental laws such as the Clean Water Act. These groups have sued over treatment plants that have failed to fully remove pollutants before releasing the wastewater into drinking water supplies.

“Because state and federal agencies have not taken an aggressive approach to dealing with drilling wastewater discharges, it has taken years to start to get this problem under control,” explained Mr. Arnowitt. “Going to court is not an easy route to take for citizen groups to get action on gas drilling wastewater discharges. The cost of litigation is always an issue, especially if you are trying to get court action in a timely manner.”

EPA NPDES fracking DRAFT.pdf 12.16 MB
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