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November 21, 2011

Fracking Roundup: EPA, New York Developing Wastewater Standards for Shale Gas Wells

By: Ed Roggenkamp — Filed under: Clean Water Act, Hydraulic Fracturing & Marcellus Shale, New York Environmental Law — Posted at 1:05 pm

As part of its Final 2010 Effluent Guidelines Program Plan, EPA recently announced its intent to develop pretreatment requirements for discharges of wastewater from shale gas extraction to sewage treatment plants.

Shale gas extraction involves hydraulic fracturing or “fracking” – the injection of large amounts of water mixed with sand and chemicals known as “frac fluids” at high pressures.  This high-pressure injection breaks up the shale, releasing natural gas which can then be recovered.  At most wells, however, a significant fraction of the injected water returns to the surface as “flowback” or “produced water.”  Some industry data suggests that up to one million gallons of flowback may be produced from a well in the month following fracturing.

Produced water generally contains not only sand and frac fluids, but also other contaminants, including metals, organic pollutants such as benzene, naturally occurring radioactive material (“NORM”) such as radium, and very high levels of dissolved salts like chlorine and bromine.  In fact, produced water is often several times saltier than sea water.

Existing regulations already prohibit direct discharges of wastewater from shale gas extraction to surface waters.  Some produced water is re-used to fracture additional wells, and a significant portion is disposed of deep underground in brine injection wells.  Some produced water, however, is discharged to sewage treatment plants, which are generally ill-equipped to treat water as salty as shale gas wastewaters.  Discharge of shale gas wastewaters to treatment plants has raised concerns that contaminants could pass through those plants without being effectively treated or interfere with the operation of the plants.  EPA’s existing pretreatment regulations already include a general prohibition on discharges to sewage treatment plants that would either pass through or interfere with such plants; however, sewage treatment plants do not typically test their discharges for organic pollutants, NORM, or salts,  making it difficult to determine whether they are effectively treating fracking contaminants before discharging them to rivers and streams.

In response to these concerns, EPA is considering proposing regulations requiring that shale gas wastewaters undergo some form of pretreatment before being discharged to sewage treatment plants.  EPA is now gathering data on shale gas extraction wastewater, and expects to propose a regulation in 2014.  Additional details on this proposal can be found in EPA’s  2010 Effluent Guidelines Program Plan, which was published in the Federal Register on October 26, 2011. Comments on the plan are due on or before November 25, 2011.

New York has also proposed its own pretreatment regulations for shale gas wastewater. These regulations would require sewage treatment plants to show that they are capable of removing contaminants expected to be present in flowback – including organic pollutants, NORM, and salts – before accepting any shale gas wastewater.  Comments on these and otherNew York fracking regulations, are due before 5 p.m. on December 12, 2011.

For additional information on the proposed wastewater standards, contact Ed Roggenkamp or Steven Barshov.

November 14, 2011

Clean Air Act Developments: Judges Hearing Greenhouse Gas Challenge Identified, Power Plant Emission Rules Sent for Review

By: Jonathan Kalmuss-Katz — Filed under: Clean Air Act — Posted at 10:52 am

Earlier this month, the D.C. Circuit Court of Appeals announced the panel of judges that will determine the legality of the Environmental Protection Agency’s (“EPA”) suite of challenged greenhouse gas (“GHG”) regulations, and EPA sent a major GHG rulemaking proposal – covering new and existing power plants – to the Office of Management and Budget (“OMB”) for review.  This pending litigation and rulemaking are likely to set the course forU.S. climate policy, given the limited prospects for congressional action or climate tort lawsuits in the immediate future.

In response to the Supreme Court’s 2007 Massachusetts v. EPA decision, which affirmed EPA’s authority to regulate GHGs under the Clean Air Act, EPA finalized a series of regulations limiting GHG emissions from motor vehicles and certain new or modified major stationary sources.  Four such rules are currently being challenged in the D.C. Circuit – the “endangerment finding” declaring that GHG emissions may endanger public health or welfare; the “tailpipe” rule regulating car and light truck GHG emissions; and the consolidated “timing” and “tailoring” rules that began phasing in stationary source GHG limits as of January 2010, while increasing emissions thresholds to limit the number of facilities covered.

Briefing in those cases is underway, and the D.C. Circuit recently announced that all of the GHG-related challenges would be heard by Judges David Tatel, David Sentelle and Judith Rogers, with oral arguments scheduled for February 28-29, 2012.  Tatel is well known for his defense of EPA’s regulatory authority in the D.C. Circuit’s consideration of Massachusetts v. EPA, a dissenting opinion whose reasoning was subsequently adopted by the Supreme Court.  Sentelle wrote the D.C. Circuit’s plurality opinion in Mass. v. EPA, holding that states lacked standing to challenge EPA’s inaction on climate change.  Rogers was not on the Mass. v. EPA panel, though she joined Tatel in dissenting from the denial of a rehearing en banc.

Rogers also authored a 2008 opinion overturning EPA’s weakening of power plant mercury rules, which criticized the agency for “deploy[ing] the logic of the Queen of Hearts, substituting EPA’s desires for the plain text of [the Clean Air Act].”  While celebrated by environmental organizations at the time, such textual analysis could pose problems for EPA’s tailoring rule, which departs from the emissions thresholds enumerated in the statute.

Even as its legal authority is being challenged in the courts and Congress, EPA continues to move forward with new GHG regulations.  Pursuant to a settlement with several environmental groups and states, includingNew York, EPA recently submitted proposed New Source Performance Standards (“NSPS”) for power plant GHG emissions for OMB review – generally the final step before the proposal is published.  The NSPS rule is likely to expand GHG limits for new and existing power plants, most of which are not covered under existing EPA regulations.