We’ll try to keep the cynicism light, but it might be a little difficult.
If you happened to read the Federal Register the day after Thanksgiving, you might have o have noticed that Texans and other interested stakeholders have only until January 11th to make comments on a proposal to give the Texas Commission on Environmental Quality (TCEQ) “delegation” authority to issue wastewater discharge permits for three types of oil and gas dirty waters: “hydrostatic” test waters, effluent from gas processing plants, and (of more concern) “produced” wastewaters.
After the New Year, you can register and make virtual comments to the Environmental Protection Agency (EPA) on Tuesday, January 5th.
What’s all this about?
Let’s check out the fineprint:
“The EPA determined that the State's October 12, 2020 program submission, including the November 5, 2020 clarification, constituted a complete package under 40 CFR 123.21, and a letter of completeness was sent to the State on November 12, 2020. Pursuant to 40 CFR 123.21, within 90 days of the EPA's receipt of the State's complete program submission, or by January 11, 2021, the EPA must approve or disapprove the program based on the requirements of CWA § 402(b) and 40 CFR part 123 and taking into consideration all comments received, unless this review period is extended by mutual agreement between the EPA and the State pursuant to 40 CFR 123.21(d).”
S does this mean EPA is likely to approve Texas’ applications to allow it to issue permits so that oil and gas producers can discharge fracked wastewater into Texas rivers and streams?
Maybe.
But there are comments to do first, and there is an argument under Federal law that EPA must carefully consider those comments. There is also an argument that the January 11th deadline is not the right deadline since there would be no time to consider public comments and the COMPLETE application did not occur until November 5th. The actual statutory end of the review period could be as late as Thursday, February 3rd. If the EPA takes action on the same day that comments are due, they will not meaningfully respond to comments.
These comments are important. We will be making them; and we hope you will too.
When did TCEQ decide they wanted this extra obligation and authority?
This decision actually wasn’t made by TCEQ. This was Legislature and Governor Abbott’s doing.
From the moment that Governor Greg Abbot signed HB 2771 into law on June 14, 2019, we knew that TCEQ would seek permission from EPAto issue permits for the discharge of wastewater from oil and gas operators. We wondered how fast it would occur. Evidently, fast enough so that Trump’s administration could approve the delegation authority.
Late last year, 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. That rulemaking already happened and was approved in April of 2020.
This application is actually composed of both a Memorandum of Agreement between TCEQ and EPA over the wastewater discharge permits, as well as hundreds of pages of description of how they would run and enforce the program.
Under the proposal, Texas would follow 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), including for “produced wastewater.”
It is important to note that that same CFR allows oil and gas producers that are located west of the 98th Meridian that meet certain minimum requirements to discharge said wastewaters into waters of the state, if they can show there is a “beneficial” impact.
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, the Railroad Commission of Texas (RRC) and now EPA moved fast, and were able to make an initial submission in September, and a final submission in early November, allowing potentially EPA action before Joe Biden officially takes office in January
The bill specifically required TCEQ to seek authority from the 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 transferred 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. Upon full delegation from the EPA, TCEQ would be set up as a one-stop shop.
But aren’t standards a good thing?
It depends on what those 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 outdated. And since the EPA is under heavy pressure from fossil fuel and pollution technology companies, especially under Trump, it is unclear when any changes to those standards might occur.
As an example, EPA currently prohibits direct discharge of wastewater from oil and gas production into bodies of water, unless:
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If it is from a so-called “stripper” well: a traditional well that just doesn’t produce a lot of wastewater
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If it is produced water from a well located West of the 98th Meridian (think West Texas, actually anywhere West of San Antonio), and it can be shown that the water is being used for “beneficial” use, such as: water augmentation, a wildlife project or crop irrigation
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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 invited 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 with a summary of input and holding some public meetings, EPA has not indicated when they plan to strengthen these federal standards -- or as many fear, weaken them.
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, we will be asking our members and allies to take action, submit comments, and attend the public meeting. We will also be making a specific request that EPA and TCEQ extend the comment period past January 11th, until at least February 5th which would be 90 days after the final submission process. A 45 (or 47) day comment period over the winter Holidays and just days before a new Administration seems a cruel joke. In addition, we will be asking the Biden Administration to review any decision that is made. More importantly, we are hoping a new EPA will begin actual rulemaking on establishing updated effluent standards under both Chapter 435 and Chapter 437. In addition, with the Legislature coming to town in January, looking at extra protections from discharged wastewaters, particularly in West Texas, is a Sierra Club priority.
The Lone Star Chapter will continue to highlight this work in 2021, along with advocating for strengthening our state’s water quality standards. TCEQ will also be updating water quality standards in 2021, and we will be prioritizing safeguards from these dangerous effluents. Texas should be a leader in both establishing water quality standards for our surface waters and establishing the most restrictive wastewater discharge permits -- or even prohibitions -- for dangerous fracked wastewater. Please help us today by commenting and attending the public meeting, and help us in 2021 as we push forward for common-sense regulation.
Be sure to submit your comments to EPA today!