From the moment that Governor Greg Abbot signed HB 2771 into law on June 14 this year, many suspected that the Texas Commission on Environmental Quality (TCEQ) would eventually begin the process of seeking permission from the U.S. Environmental Protection Agency (EPA) to issue permits for the discharge of wastewater from oil and gas operators. We wondered if it would happen, and now it is.
They began that process last week. TCEQ proposed a rule that would incorporate federal standards on oil and gas wastewater discharge for produced wastewater, including both direct discharges and discharges from centralized wastewater treatment plants.
The Technical Stuff:
Under the proposal, Texas would amend its rules to adopt the EPA’s effluent limitations guidelines for the oil and gas extraction point source category and the centralized waste treatment category (40 Code of Federal Regulations, or CFR) Parts 435 and 437), and also create a definition for “produced wastewater.”
The proposed rule has now been published in the Texas Register, and the agency will take comments until February 11 at 5pm and hold a public hearing on this proposal in Austin on February 4, 2020, at 2:00pm in Building E, Room 201S, at the commission’s central office located at 12100 Park 35 Circle. The Lone Star Chapter will be preparing comments as part of the rule-making.
What is HB 2771 again?
Let’s go back to the 2019 legislative session. Oil and gas interests’ primary objective (particularly those located in West Texas) was passing a bill that would require the state to seek authority on these permits-- and to get it passed as fast as possible.
While Sierra Club was not able to stop the legislation from passing, we did work with our allies to get the “due date” for delegation submission moved from September 1, 2020 to September 1, 2021. Despite this victory, TCEQ and the Railroad Commission of Texas (RRC) are working together swiftly with the expectation that they can submit an application by early 2021, well before the September deadline. TCEQ has already held two stakeholder meetings and issued a faster timeline for the proposed rule.
The bill specifically requires TCEQ to seek authority from the United States Environmental Protection Agency (EPA) for TCEQ to issue federal permits for discharges of produced water, hydrostatic test water, and gas plant effluent into water in the state resulting from certain oil and gas activities under the National Pollutant Discharge Elimination System program.
Additionally, HB 2771 transfers permitting authority for these discharges from the Railroad Commission of Texas to TCEQ upon delegation of authority for these discharges from EPA to the TCEQ.
More simply, currently any oil and gas producer or gas plant wanting a discharge permit has to get one from both the RRC and the EPA. This bill would allow TCEQ to set up a one-stop shop at the state.
Wait, aren’t standards a good thing?
It depends on what the standards are. By necessity, if Texas is to get full delegation of the program from the federal government, they must adopt federal standards. But the problem is that those standards, by EPA’s own admission, are limited. And since the EPA is under heavy pressure from fossil fuel and pollution technology companies, it is unclear whether they will make major changes to those regulations.
As an example, EPA currently prohibits direct discharge of wastewater from oil and gas production into bodies of water, unless:
- If it is from a so-called “stripper” well: a traditional well that just doesn’t produce a lot of wastewater
- If it is produced water from a well located West of the 98th Meridian (think West Texas), and it can be shown that the water is being used for “beneficial” use, such as: water augmentation, a wildlife project or crop irrigation
- If it is applied on land, and meets state rules for land application
But even on these exceptions, the standards in federal law only cover a handful of constituents found in produced wastewater. The oil and gas industry uses literally hundreds of chemicals (some of which are “trade” secrets) in the oil and gas fracked production process. There are also lots of natural metals and chemicals found underground that are released underground and come back as “produced” wastewater.
Similarly, EPA itself has been inviting comments to examine its centralized wastewater plant requirements because its standards only cover a fraction of the hundreds of chemicals found in produced wastewater.
Unfortunately, beyond releasing a white paper and holding some public meetings, EPA has not indicated whether they plan to strengthen these federal standards-- or as many fear,weaken them. There has been widespread concern that EPA could make the 98th meridian exception nationwide, which would open up direct discharge of produced wastewater throughout all of Texas.
According to a new report by the Environmental Data and Governance Initiative, , EPA ominously took down much of the information about the issue from one of its websites--limiting the public's access to an important environmental issue.
Do oil and gas operators currently have EPA and state permits for wastewater discharge? Yes, but on a very limited basis. According to the RRC, it issued 529 permits for discharges of produced water, hydrostatic test water, and gas plant effluent in Fiscal Year 2018. However, the vast majority of these were for hydrostatic test water, and gas plant effluent, not from produced water. According to RRC, there were only a handful of discharge permits, most of which involved stripper wells in East Texas.
In other words, right now the oil and gas industry relies almost exclusively on deep-well injection to get rid of its fracked and produced wastewater... but they would really like the option to dump it into Texas’ rivers and streams. Getting delegation authority would help them a lot.
What’s Next?
To be clear, even if Texas adopts this rule, this does not mean our state agency will suddenly start issuing wastewater discharge permits for oil and gas produced waters. Delegation authority actually involves many steps, including: rulemaking, a Memorandum of Understanding with the RRC, a Memorandum Agreement with EPA, a letter from the Attorney General of Texas supporting the move, and an update of Texas’s current Texas Pollutant Discharge Elimination System (TPDES). And even after a request for delegation is made, there will be a review by EPA, as well as an opportunity for comment from the public, stakeholders and officials, and public hearings.
The Lone Star Chapter will be prioritizing this work in 2020, along with advocating for strengthening our state’s water quality standards. Texas should be a leader on establishing both water quality standards for our surface waters and for the most restrictive wastewater discharge permits -- or even prohibitions -- for dangerous fracked wastewater. Stay tuned for how you can help in 2020!