Photo: Al Braden
By Cyrus Reed
In 2019, the Texas Legislature passed HB 2771. The bill (now law) directed the Texas Commission on Environmental Quality (TCEQ) to “get ready” for so-called “produced” oil and gas wastewater to be discharged in Texas. Produced water basically means the wastewater that comes back out of the ground after drilling the hole and especially after the hydraulic fracturing or “fracking” process.
How should the TCEQ get ready? By seeking delegation authority from the EPA so that in the future TCEQ can issue “Texas Pollutant Discharge Elimination System” (TPDES) permits for wastewater. Currently, the state of Texas lacks this authority, meaning oil and gas wastewater producers would have to obtain both a state and federal permit, and only a handful of produced wastewater permits have ever been issued.
So this is basically about TCEQ asking the EPA for permission to be in charge of frack wastewater permits.
Since passage of HB 2771, TCEQ has been moving quickly to meet the legislative directive. It has to do this on or before September 1, 2021. First, earlier this year, TCEQ published proposed rules for comment for oil and gas wastewater discharge permits, which, in our view, fell far short of protective standards since TCEQ is proposing to simply refer to “federal” rules promulgated by the EPA. Those rules (found here and here if you want to dig) currently allow oil and gas direct wastewater discharge if the discharge is found west of the 98th Meridian (basically everywhere west of San Antonio) and meets very minimal discharge standards. In most cases, a wastewater producer would send it to a centralized wastewater treatment facility, but EPA standards for those facilities do not cover the full gamut of dangerous toxic chemicals commonly found in frack wastewater.
While Sierra Club submitted detailed comments, and more than a 1,500 Texans responded to our action alert, we worry that TCEQ commissioners will approve the proposed rules later this Spring with minimal changes, potentially as soon as April.
So is that the end? Not yet. It is important to note that even with the adoption of the rule, there are several more steps in the delegation process.
Next in that process is that TCEQ is updating their Memorandum of Understanding (MOU) with the Railroad Commission of Texas, since TCEQ will be assuming a greater role on wastewater management under passage of HB 2771. In fact, TCEQ has already published a proposed updated MOU for public comment with comments due on March 30, and a public hearing on March 23. The Sierra Club will be participating in this upcoming rulemaking as well.
In addition, TCEQ is holding “stakeholder” meetings, the next of which will be held on March 3, 1:30pm –4:00pm, at TCEQ headquarters in Austin (12100 Park 35 Circle, Building E, Room 201S).
Sierra Club will be participating in these stakeholder meetings. In addition to adoption of rules, updating the MOU, TCEQ will need to update its existing TPDES delegation agreement with the EPA to include produced water discharges. That delegation application is essentially an 8-chapter document, and must be accompanied by a finding from the Attorney General of Texas that Texas can successfully run the program and has the resources to do so.
More on what “produced” water really is
Don’t let the name fool ya. Produced water is not a new water supply option. It is the “flowback” of all the water underground that comes back when a producer drills for oil and gas either through conventional means or more likely through the “hydraulic fracturing” (i.e. fracking) process of sending really hot water, sand, and loads of chemicals underground (under great pressure) to break up rock and release fossil fuels. Remember, Texas is the largest oil and gas producer in the US, and “fracks” more than any other state. There is a lot of water going underground to produce oil and gas, and a whole lot more water flowing back. And it ain’t clean. A recent study found that of some 1,800 potential chemicals and chemical compounds found in produced water (from radionuclides to heavy metals to toxics to hydrocarbons), only about 400 have approved methods for detection and less than 200 have existing standards under federal laws and rules. We simply don’t know what’s in this toxic soup, can’t detect much of it, and don’t have standards for most of it.
In Texas, the oil and gas industry manages that wastewater in three ways. 1) Send it off-site for underground injection. 2) Reuse it for additional drilling. 3) In rare cases, up until now, discharge it in some way on the land. According to a presentation by the Railroad Commission of Texas to a recent hearing of the Senate Committee on Natural Resources, approximately 10.7 billion barrels of produced water were brought to the surface in 2018 in Texas from 286,000 oil and gas wells. Of this amount, about 45% of this wastewater was reused in enhanced recovery through injection wells (24,627), while approximately 54% was injected underground through active disposal wells (7,842). Only about 1 percent of that water was discharged - virtually all of it as “land application.”
So what do we do?
First, we will continue to press our case to regulators and legislators that simply adopting “federal standards” is not good enough for Texas. Until we study all the chemicals found in the toxic soup and develop state-based standards for pretreatment, treatment, and discharge, we should not be authorizing direct discharge west of the 98th Meridian, or even discharges from wastewater treatment plants. We should have clear rules that any future discharge permits cannot include wastewater from other states. We don’t want to become Oklahoma or New Mexico’s dumping ground. Each must be treated as an individual permit that is individually assessed.
Second, in addition to the “delegation” process, we must be engaged in the upcoming 2021 Surface Water Quality Standard process. In other words, even as we oppose and seek to strengthen any discharge permits from fracked oil and gas, one way to ensure better permits is to strengthen existing water quality standards to ensure that all Texas streams, rivers and bays are fishable, swimmable and healthy for aquatic species. If the state improves our water quality standards, it is less likely that oil and gas producers will be able to meet those standards. With that in mind, we will be participating in upcoming Texas Surface Water Quality Standards (TSWQS) Advisory Work Group at 9:30am on Monday, March 9, 2020, and the meeting will be held at the TCEQ Central Office Campus in Building F, Room 2210.
Topics to be discussed at the March meeting include:
- Current status of EPA approval of the 2018 TSWQS
- Toxic criteria updates (Tables 1 and 2 of the TSWQS)
- Site-specific criteria updates based on recreational and aquatic life use-attainability studies, and
- Revisions under consideration for the Procedures to Implement the Texas Surface Water Quality Standards (RG-194).
With a threat of future produced wastewater from the fracking industry, continued industrial development and a booming economy and population, there needs to be a movement of people, organizations, and allies pushing for improved water quality and discharge standards. Our livelihoods, health and environment is at stake!