The United States Environmental Protection Agency continues to move forward with a proposed rule which would require oil and natural gas producers to pretreat the wastewater from their unconventional oil and gas extraction operations, including hydraulic fracturing, before it would be allowed to go to a publicly owned wastewater treatment facility for final treatment and eventual discharge. Prior to the blossoming of unconventional oil and natural gas development in places like the Utica and Marcellus shales, wastewater from conventional oil and gas well development would largely be addressed on site through a land application process or would be sent to publicly owned treatment works for treatment and discharge through POTW permitted point sources. The use of hydraulic fracturing and horizontal well development resulted in a tremendous increase in the volume of wastewater produced by a single unconventional well versus a single conventional well.

While POTWs historically were able to accept this waste stream with little impact to water quality, the increased volumes of wastewater produced from the development and use of horizontal drilling and hydraulic fracturing have resulted in growing concerns regarding the amount of total dissolved solids, mainly in the form of salts, contained in the wastewater and the limited ability of POTWs to treat and remove these substances prior to discharge into surface waters. These high volumes of TDS can have a negative impact on aquatic life. USEPA believes that the proposed rule would fill a gap in existing federal wastewater regulations to ensure that wastewater discharges from oil and gas operations do not enter a POTW without prior treatment. The rule establishes standards for existing and new sources that would prohibit the indirect discharge of wastewater associated with onshore oil and gas exploration facilities. USEPA is defining unconventional oil and gas extraction wastewater to include wastewater pollutants associated with production, field exploration, drilling, well completion or well treatment for unconventional oil and gas extraction. In the proposed rule-making, USEPA states that the rule will not result in any increased economic burdens as the rule only reflects the current practices in the states. And the agency is correct that the states over the past five years have put into place policies which greatly limit, if not entirely disallow, the ability of POTWs to accept any oil and gas exploration related wastewater at its facilities for discharge.¹

This though only begs the question of the need for the rule-making in the first instance and further highlights a broader question of the need for continuing federal involvement in the regulation of oil and gas exploration by USEPA where the states are already providing sufficient and adequate regulation and supervision years in advance of federal action.

_{1 The agency said there aren’t any existing onshore UOG extraction facilities that currently discharge wastewater to public systems, but because onshore extraction facilities have discharged to public systems in the past, and because some facilities may consider discharging to public systems in the future, the rule is necessary.}