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Bear in the Woods: Environmental Law Blog

Wednesday, December 10, 2014

Impoundments are the pits (Part I)

According to the non-profit mapping organization SkyTruth, Pennsylvania is home to 529 impoundments that store fluids related to oil and gas production activities. StateImpact recently reported that the Pennsylvania Department of Environmental Protection (DEP) does not know how many of these impoundments store wastewater and how many store "fresh water" (a category of water that, as this post will explain, is less fresh than you might hope).

Given recent incidents involving groundwater pollution from several Range Resources impoundments in Washington County and an EQT impoundment in Tioga County, the lack of an inventory of Pennsylvania's impoundments is cause for concern. In fact, there are more than a few reasons to worry about the use of impoundments for oil and gas development in Pennsylvania. This post will summarize the different types of impoundments currently in use in, and explain how each is regulated (or not regulated). Part II of this post, to follow at a later date, will discuss how pending DEP regulatory revisions could - and should - change the status quo for impoundments.

In general, there are four kinds of impoundments that oil and gas operators can use in Pennsylvania to store fluids used in or generated by production activities: (1) wastewater "pits" that serve specific well sites, (2) centralized wastewater impoundments that serve multiple well sites, (3) wastewater impoundments used in off-well-site processing operations, and (4) "fresh water" impoundments.

Well Site "Pits"

"Pits" are well-site impoundments used to store drilling and fracking wastes, a category of waste that, incredibly if not surprisingly, has been exempted from federal hazardous waste regulations. By grace of this exemption, such waste is regulated under the Pennsylvania Solid Waste Management Act (SWMA) as "residual waste." Although the word "pit" suggests a structure dug into the ground, "pits" can also be above-ground structures with raised embankments. "Pits" are regulated mainly under a set of standards in 25 Pa. Code 78.56 that were last updated in 2001 and are not adequate to protect groundwater from the contaminants in production wastes like "flowback" fluids. For example, the standards do not require groundwater monitoring wells, double-liners, or any form of leak detection. Section 3273.1 of Act 13 exempts well-site "pits" from permitting requirements under the SWMA or public notice requirements if a well has been permitted on the site. Consequently, the only permits required for "pits" are stormwater control authorizations (under the general permit ESCGP-2) for the earth disturbance. The leaky Tioga County EQT impoundment was a well-site "pit." The DEP does not maintain a comprehensive list of these impoundments.

Centralized Wastewater Impoundments

"Centralized impoundments" or "centralized impoundment dams" are wastewater impoundments that serve multiple well sites. Whether built at a well site or at an entirely separate location, centralized impoundments are considered by the DEP to be located "on" well sites for regulatory purposes, a fiction that the DEP uses to exempt these impoundments from its residual waste regulations at 25 Pa. Code 299.141-145. (Under 25 Pa. Code 287.2(g), impoundments "located on the well site" are regulated under oil and gas regulations instead of residual waste regulations). The DEP does, however, recognize that centralized impoundments are "dams" under the Pennsylvania Dam Safety and Encroachments Act (DSEA), and so requires individual permits for them, as well as double-liners, leak detection systems, groundwater monitoring, and compliance with the DSEA regulations at 25 Pa. Code Chapter 105.

Since 2008, the DEP has issued approximately 30 permits for centralized impoundments. Most of the Range Resources impoundments that leaked in Washington County were centralized impoundments (albeit ones apparently built to meet design and construction standards that the DEP has since updated).

Wastewater Impoundments Used in Off-Site Processing Operations

A third category of wastewater impoundments are impoundments owned and operated by companies that are not drillers - e.g., companies that have gotten into the business of storing, treating, and recycling wastewater from the oil and gas industry. These impoundments are regulated under the DEP's residual waste regulations and the DSEA regulations at 25 Pa. Code Chapter 105.

"Fresh Water" Impoundments 

There are two kinds of impoundments used to store "fresh water" for oil and gas operations in Pennsylvania: those that are "jurisdictional" to the DSEA (i.e., subject to regulation pursuant to section 693.4 of the DSEA) and those that are "nonjurisdictional" (i.e., not regulated under the DSEA). Fresh water impoundments are jurisdictional if their capacity exceeds 50 acre-feet (a little more than 16 million gallons), the depth of water at maximum capacity exceeds 15 feet, or the escape of water "may result in air, water or land pollution, or may result in danger to persons or property." Fresh water impoundments that do not exceed the acre-feet and depth criteria and are deemed not to pose pollutional and safety threats are nonjurisdictional. 

Jurisdictional fresh water impoundments require permits under the DSEA and must comply with the design and construction standards at 25 Pa. Code Chapter 105. Nonjurisdictional impoundments need only stormwater construction permits and currently are not subject to regulatory standards. (In lieu of regulatory standards, the DEP has "recommended standards" for nonjurisdictional impoundments). Fresh water impoundments of both kinds are sometimes co-located with well sites and sometimes separately located. 

A DEP residual waste general permit known as WMGR123 allows processed gas well wastewater to be stored in fresh water impoundments if it meets certain pollutant limits (in which case it is considered "de-wasted" and thus "fresh" for these purposes). WMGR123  does not, however, require ongoing testing of the stored water to determine whether evaporation and stratification result in those limits being exceeded. Nor does the DEP  consider nonjurisdictional fresh water impoundments that store "de-wasted" water to be impoundments that "may result in air, water or land pollution, or may result in danger to persons or property." The DEP appears to have a list of jurisdictional fresh water impoundments, but not of nonjurisdictional impoundments.

Mark Szybist is staff attorney for PennFuture and is based in Wilkes-Barre. Part II of this blog will be posted later this month or in January 2015.

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