By Myron Arnowitt, PA Director Clean Water Action
Recent amendments to both the state House and Senate Administrative Code bills have added a significant loophole for three oil and gas wastewater facilities currently discharging in the Allegheny River watershed.
This loophole has been inserted in the House into Senate Bill 446 (PN 1088) and in the Senate into House Bill 118 (PN 2256). House Bill 118 was just sent back to the House after approval by the Senate as part of their proposed budget package.
Both House Bill 118 and Senate Bill 446 have identical language which allows wastewater plants discharging conventional oil and gas wastewater to continue using expired permits from DEP until 2020.
DEP would be prohibited from renewing these permits with stricter limits as is required by existing rules.
The history of these wastewater plants, all currently owned by a single company Fluid Recovery Services (FRS), show that they have to date avoided having to install significant treatment requirements to keep contaminants in oil and gas wastewater from entering rivers and streams in western Pennsylvania.
While much attention in the state has focused on wastewater generated by Marcellus Shale gas extraction, the wastewater produced by conventional oil and gas operations contains many of the same contaminants.
Heavy metals such as arsenic, a variety of hazardous chemicals, radionuclides, and high levels of total dissolved solids and chlorides (often 2-3 times saltier than seawater) are all found in conventional oil and gas wastewater.
While there is not as much conventional gas wastewater produced compared to shale gas operators, about a third of conventional gas wastewater is still discharged to rivers and streams, totaling over 100 million gallons annually.
Almost half of the total conventional discharges are coming from the three FRS plants at issue in the Administrative Code bills.
DEP last issued a water discharge permit to the FRS plants in 2008 for a standard five year term before expiring. The 2008 permits set few limits for contaminant discharge and did not even require monitoring for some oil and gas wastewater contaminants.
In 2013, EPA issued an order to the three FRS plants that among other actions required the companies to comply with strict discharge limits in their discharge permits when renewed sometime during 2013.
These new limits would require significant upgrades in treatment technology for these plants that has been long overdue.
Since the EPA order was issued in 2013, DEP has published draft permits for the FRS plants and has held public comment periods on the renewals. However, DEP has not issued final permits for any of the plants, now operating under permits that are nine years old.
If House Bill 118 is passed in current form this would further stretch the 2008 permits to 2020, even though they are supposed to be five year permits.
Clean Water Action recently had a legal analysis conducted on the language in Senate Bill 446 and House Bill 118 relating to the oil and gas wastewater facilities.
In addition to skirting the EPA order, this analysis found that there are clear violations of the federal Clean Water Act, by enacting a state statute that sets a longer permit length than federally allowed.
While states are allowed to have laws or regulations stricter than the Clean Water Act, weaker provisions are prohibited.
There are also a number of provisions that likely trigger state constitutional issues, including the Environmental Rights Amendment in Article I, Section 27.
In addition, the prohibition on enacting special laws in Article III of the state constitution seems especially applicable as this is a law designed to benefit not just one industry, but one company.
Could FRS in fact comply with strict new limits on their oil and gas wastewater discharges?
It is important to consider the case of Waste Treatment Corporation (WTC) in Warren, PA which has been the only other significant discharger of conventional oil and gas wastewater in the state.
Clean Water Action filed a citizen suit under the Clean Water Act and the Endangered Species Act against WTC in 2013, arguing that DEP’s own data showed the discharge so contaminated the portion of the Allegheny River below WTC’s discharge that it failed to meet federal water quality standards.
Our settlement of this case with WTC resulted in the company installing state of the art treatment technology in less than a year. This technology removed over 99.9 percent of contaminants and current discharges of TDS and chlorides from the plant are below background levels for that portion of the Allegheny River.
It’s clear the oil and gas industry has the ability and resources to protect our waters from wastewater contamination. However, for these solutions to become a reality, the state legislature and the Governor need to make sure that cutting a budget deal doesn’t mean once again delaying a long needed cleanup by the oil and gas industry.
Click Here for a copy of Clean Water Action-PA’s legal analysis.
Myron Arnowitt is Director Clean Water Action-PA and can be contacted by sending email to: marnowitt@cleanwater.org or by calling 412-765-3053.
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