This is the second article in a series of blog posts evaluating the current status of flowback and produced water recycling regulations in the major shale play states. These waters are generated through the hydraulic fracturing process, and this blog post continues the discussion of the manner in which these waters are disposed.

The Marcellus Shale, the largest in the country by geographic area, extends throughout much of the Appalachian Basin, under Maryland, New York, Ohio, Pennsylvania, Virginia, and West Virginia.

However, this post will focus on flowback and produced water recycling regulation in the most active hydraulic fracturing states, specifically, Ohio, Pennsylvania, and West Virginia.

Recycling of flowback and produced waters is a growing trend in the Marcellus Shale, as off-site disposal facilities are not often available in close proximity to oil and gas wells.

Ohio

Ohio’s Department of Natural Resources (“ODNR”) regulates the disposal of flowback and produced water from oil and gas drilling. ODNR also regulates the design and operation of lagoons/pits and tanks that are used at the drill site to temporarily store fluids that are either being recycled or collected.

Long-term storage of these fluids in on-site pits is not authorized in Ohio. Ohio prohibits the discharge of any produced and flowback waters directly to waters of the state and also prohibits disposal of brine at any location other than an ODNR-permitted Class II injection well. However, the state strongly encourages recycling of flowback water.

Currently, Ohio’s regulations pertaining to the recycling of flowback and produced waters from hydraulic fracturing activity fall in the context of permitting the surface application of brine collected during the production of a well to roads, streets, highways, and other land surfaces owned or controlled by a county, township, or municipal corporation.

Such application would be utilized to control surface dust or ice. However, flowback water and other fluids from well stimulation may not be applied to roadways or the land surface.

Pennsylvania

In April 2011, the Pennsylvania Department of Environmental Protection (“PADEP”) instructed 15 Publicly Owned Treatment Works (“POTWs”) to stop handling flowback fluids from the Marcellus Shale. At the time of the order, around two-thirds of flowback and produced waters were recycled in Pennsylvania.

The reuse of produced water is managed by the PADEP’s Residual Waste Division. This division has developed general permits for the beneficial use of residual waste, including WMGR123, a 2012 consolidation of General Permits WMGR119 and WMGR 121, that permits the processing, transfer and beneficial use of oil and gas liquid waste to develop or hydraulically fracture an oil or gas well.

Oil and gas liquid waste is defined to include liquid wastes from the drilling, development and operation of oil and gas wells and includes contaminated water from well sites.

Pennsylvania also sets forth wastewater treatment requirements specifically for the handling of flowback and produced water from fracturing and other natural gas well operations.

Under the requirements, well operators must develop a wastewater source reduction strategy and submit it to the PADEP upon request.

Within the strategy, the operator must identify the methods and procedures that will be utilized to maximize the recycling and reuse of flowback and production fluids either to:

  1. fracture other natural gas wells or
  2. for other beneficial uses approved under the regulations.

According to a May 2012, NRDC study, the recycling of flowback and produced waters for use in additional hydraulic fracturing has increased by 10% between 2011 and 2012.

West Virginia

A recent study in West Virginia found that 81 percent of recovered flowback water was able to be recycled and re-used.

A 2010 Memorandum of Agreement between the West Virginia Division of Highways and the West Virginia Department of Environmental Protection allowed for the beneficial use of natural gas well brines for roadway pre-wetting, anti-icing, and deicing. Such use is limited to natural gas well brines that fall within certain allowable levels.

West Virginia’s oil and gas regulations do set forth construction and maintenance requirements for flowback and produced water pits and freshwater impoundments. However, they do not contain any specific rules governing recycling of that water.


This article was prepared by Heather M. Corken and Kristen Hulbert. To learn more, reach out to Barclay Nicholson (barclay.nicholson@nortonrosefulbright.com or 713 651 3662) from Norton Rose Fulbright’s Environmental Law Practice Group.