Water management

It’s that time again. Time for a look at the ever-changing regulatory landscape and its impact on oilfield water management. Let’s first look at the latest on the “Waters of the United States” (WOTUS). WOTUS is important because it defines what bodies of water are subject to federal regulation. Historically WOTUS applied to “navigable waters” and major waterways feeding “navigable waters”. During the Obama administration the definition was expanded to mean most bodies of water even temporary ones, like irrigation ditches, trenches and run-off basins. Agricultural interests where in an uproar and filed many challenges to this federal overreach. The Trump administration reversed this, but the Biden administration announced they would go back to the Obama era definition opening the door for years of litigation.

WOTUS update. In July of this year the EPA announced that they would be looking to create a more durable definition of WOTUS, to avoid the legal challenges if they reverted to the Obama era definition. After public meetings and forums on WOTUS throughout August and into early September, while agricultural groups sought to extend the comment period. Then on September 20, 2021, EPA Administrator, Michael Regan announced that exemptions put in place by the Trump administration would remain for farming and ranching activities. This is a good sign, but we are still waiting to see what that means. In his statement he also stated that he would bring clarity to the regulation, which doesn’t necessarily mean we will like it, just understand it better. We continue to need to monitor what the final version of the new rule will look like, so keep your eye on WOTUS.

CLEAN Future Act update. The Climate Leadership and Environmental Action for our Nation’s (CLEAN) Future Act (H.R. 1512) was introduced in draft form In January 2020 and then introduced, after significant updates, to the House of Representatives in March of 2021 as well as 12 committees and six subcommittees. There has been no action since as these committees and subcommittees continue to meet. This regulation predicted to cost trillions, covers greenhouse gas emissions, clean electricity standards, new energy efficiency standards, electrical infrastructure upgrades to support solar, wind and electrical car charging stations, industry and manufacturing decarbonization, environmental justice programs, waste reduction and a whole slew of other things. It might be easier to list what it doesn’t cover.

Tucked away in all of this the removal of the exemption for oil and gas exploration. An exemption we have enjoyed since 1988. Currently Skopos Labs give this legislation a 4% chance of approval, so maybe we shouldn’t worry. Skopos Labs utilizes a machined learning process used for investment management and is backed by Thomson Reuters, so they should be a solid resource. The problem is legislation gets changed and we will likely not see the current legislation stay in its current form, so let’s hope this never proceeds. The Biden administration is very keen on supporting this legislation. We have to pay attention to Skopos Labs and their analysis on the legislation going forward.

For us in the oilfield water management industry this means that produced water would no longer be exempted and, in some cases, will be regulated as a hazardous waste because of benzene. The regulatory limit for benzene is 0.5 ppm and we have tested untreated produced water in ranges that we will simply say were above the regulatory limit of 0.5ppm. So, the potential for some produced water to be considered hazardous if we lost the exemption does exist. The good news is ozone and hydrogen peroxide and combinations of the two have been used to remove benzene in groundwater for years. We took a typical ozone produced water recycling system and found up to 60% reduction in benzene through the conventional recycling process. With some optimization you can easily reduce benzene below 0.5ppm if that challenge ever did arise.

The RCRA exemption for oil and gas waste. RCRA is the Resource Conservation and Recovery Act (RCRA) under which hazardous waste definition and regulations are found. It was established in 1980 and thanks to Senator Lloyd Bentsen, we enjoy an exemption for oil and gas exploration wastes. In 1988 the EPA clarified this exemption because of some challenges and later in 1993 issued another clarification as a result of challenges. In 2003 the Villanova Law Journal issued their own review and found the exemption unjustified and deserving of further review. In 2010, the EPA declined to review the exemption after a petition from the Natural Resources Defense Council (NRDC). Again in 2016 the NRDC with other environmental groups filed a lawsuit and the EPA as part of a consent decree issued a 279-page report that found the exemption was justified and should stand. Part of the findings require a review of the exemption every few years, so who knows if the Biden administration will take up this issue, regardless of what happens with the CLEAN Future Act.

To understand the impact of this there are only 800 or so Class 1 disposal wells in 10 states and only 17% of these are permitted for hazardous waste bringing the number to 136, most of which are private wells owned by industry for their own wastewaters. Commercial hazardous waste Class 1 disposal wells are down to a small handful with limited capacity. Now compare this to the thousands of Class 2 disposals wells we enjoy today and imagine they could no longer be used for produced water. Not the future I want to be a part of. I will keep you updated as things progress. Remember no problems just challenges we can overcome.

About the Authors

Mark Patton

Hydrozonix

Mark Patton is president of Hydrozonix and has more than 30 years of experience developing water and waste treatment systems for the oil and gas industry. This includes design, permitting and operation of commercial and private treatment systems, both nationally and internationally. He has seven produced water patents and two patents pending. He earned his B.S. in chemical engineering from the University of Southern California (USC) in 1985.