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Fracking wastewater: Are there adequate rules to manage it?

Rochester Business Journal
October 5, 2012

New York is a water-rich state, and our water resources have historically powered the state's development and economic well-being.
Just as importantly, water resources significantly enhance our quality of life. Because of this, protection of our lakes, rivers, streams and groundwater is of vital importance to all New Yorkers. Much of the controversy surrounding possible use of high-volume hydraulic fracturing to recover natural gas involves whether fracking can be done without polluting and using unsustainable quantities of water.
First, a brief explanation of hydraulic fracturing for oil or gas recovery is warranted. The technique pumps a pressurized fluid, most often water, into deep, triple-encased wells to create and then maintain tiny cracks in a layer of shale containing natural gas or petroleum. This process injects large volumes of the fluid and other substances to keep fractures open, dissolve minerals, suspend sand and create new channels in the rock through which natural gas will flow to a recovery well.
High-volume hydraulic fracturing is a water-intensive activity; fracking a single well uses 2 million to 8 million gallons of water. Two types of wastewater are produced during the process and the subsequent recovery of gas.
Drilling produces flow-back wastewater, a mixture of water used for fracturing and groundwater from the deep shale formation that contains the gas. And once gas is pumped from a well, production wastewater comes up with it.
Both types of wastewater have similar constituents, although the production wastewater often is more concentrated because it hasn't been diluted during the fracturing process. The wastewater mainly contains minerals and other materials that are naturally present in groundwater in the deep shale layer.
Like the deep groundwater, the wastewater is much saltier then sea water. It can also pick up naturally occurring heavy metals such as iron and cadmium, as well as naturally occurring radioactive material. In addition, the wastewater may contain some of the sand and chemicals added by the drillers during fracking.
Management of this wastewater, which can exceed a million gallons during the two to eight weeks of the flow-back stage, is strictly regulated already and will be even more so if New York allows high-volume hydraulic fracturing.

Existing regulation
The management and disposal of this flow-back and production wastewater is currently regulated under both the federal Clean Water Act and the New York Environmental Conservation Law. For 40 years, those two laws have brought virtually all industrial and other wastewater under a strict permitting and reporting scheme, which has to be followed before wastewater can be discharged to surface water or groundwater, even if it passes through a municipal treatment plant first.
Permits issued under these laws contain numerically specified limits on virtually all pollutants known or suspected to be present in the wastewater at levels that may be of concern for human or environmental health. Numeric action levels also are included in these permits to guard against unknown individual pollutants or combinations that may be toxic to aquatic organisms. Because aquatic organisms typically are much more sensitive to pollutants than humans, these toxicity tests also protect humans.
The permits are enforced not only by requiring the holders to do monitoring and reporting but with inspections done by the state or the U.S. Environmental Protection Agency, which has the authority to impose very steep fines and prison terms on non-complying dischargers.
The numeric limits in these permits must be based on the reductions that can be achieved by the application of the best treatment available. These technology-based limits can be pushed even lower if necessary to protect the designated use and the quality of the receiving water.
If the wastewater is proposed for treatment at a municipal treatment plant, the application for the well-drilling permit must identify the treatment plant and an alternative facility. The application must include an analysis of what the hydraulic fracturing wastewater volume and constituent concentrations will be.
Each individual application must be approved by the state and often also by the EPA. Any significant changes in the wastewater must be approved in advance. Further, only those municipal treatment plants that already have industrial pretreatment programs approved by the Department of Environmental Conservation and EPA can receive this wastewater.

Proposed program
The proposed New York regulatory program is more extensive than the well-established wastewater permitting program under the Clean Water Act and New York Environmental Conservation Law. Much of the flow-back water may be treated and reused for high-volume hydraulic fracturing. Conditions related to the management and treatment of flow-back water, even if it will be reused for further fracturing, will be imposed through the well-drilling permit.
No application will be approved without a written wastewater disposal plan. Similarly, the application and the resulting permit must specify where the water for fracturing will come from, including the identity of a backup supply. No flow-back or production wastewater will be allowed to be stored at the site in open pits or lagoons, unlike what has been allowed in some other states.
Rather than rely on New York's rigorous but general State Pollutant Discharge Elimination System permit process for stormwater discharge from industrial activities, which already includes additional requirements for oil and gas extraction and refining activities, the state has proposed a separate fracking permit. This includes more than 100 pages of requirements intended to ensure that activities at each fracking site do not contaminate stormwater flowing off the site.
While wastewater from high-volume hydraulic fracturing will contain some constituents that could cause environmental harm if they are not properly managed, a well-tested regulatory program exists to ensure that this wastewater is not generated until detailed plans are developed for managing and treating it. The state has proposed expanding and strengthening this system even further to safeguard our waters.

Libby Ford is a senior environmental health engineer at Nixon Peabody LLP. She has worked for more than 35 years on issues involving water quality, water pollution control and environmental laws and regulations.10/5/12 (c) 2012 Rochester Business Journal. To obtain permission to reprint this article, call 585-546-8303 or email

What You're Saying 

Lee Drake at 10:21:47 AM on 10/18/2012
There are a few issues here. One is that unlike most wastewater production - fracking occurs THROUGH groundwater and aquifers. As such the potential for a leak of either wastewater or other substances into the groundwater is increased. This is dangerous because there is n...  Read More >
Lee Drake at 11:41:22 AM on 10/18/2012
I would also be interested to know whether the Author and Lawyer more frequently represents industry when they are fighting environmental controls, or residents, employees and individuals who are affected by them? It's nice to have an expert commenting on the Fracking proce...  Read More >
Joseph DiDonato at 8:16:56 AM on 10/22/2012
I love all this talk about Natural Gas as a cheap energy source and how it will boost economies- and yet the process can't pay for itself and return the water used back to its original condition. It is really not sustaining. Instead it is leaving a mess for another genera...  Read More >

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