Marcellus Shale Watch

Thirty-day public comment period to close on September 6, 2011

By Andrew T. Bockis, Saul Ewing, LLP

On August 6, 2011, the Pennsylvania Department of Environmental Protection published notice of a proposed General Permit that authorizes the processing and transfer of oil and gas wastewater from wells producing gas from unconventional formations such as the Marcellus Shale. The proposed General Permit would also authorize the storage of processed oil and gas wastewater in an impoundment prior to reuse for further hydraulic fracturing. In short, oil and gas wastewater that is processed under the proposed General Permit would not be considered a waste once the terms and conditions of the General Permit are satisfied.

The proposed General Permit would consolidate and replace three currently existing General Permits into a new General Permit. Many of the conditions in the proposed General Permit are borrowed from the three currently existing General Permits. However, the proposal includes a few important additions. Specifically, the proposed General Permit:

• Adds a definition for “oil and gas wastewater” (meaning tophole water, spent drilling fluids, flowback and produced water generated during the development and operation of oil and gas wells);

• Adds a definition for “dewaste” (meaning a determination made by the Department of Environmental Protection that a material is no longer a waste);

• Establishes minimum sampling and treatment concentrations for the storage of oil and gas wastewater in tanks and open impoundments prior to reuse in fracturing;

• Establishes the method to demonstrate compliance under the General Permit in order to store processed oil and gas wastewater in an impoundment prior to reuse in fracturing.

The proposed General Permit is subject to a 30-day public comment period, which runs through September 6, 2011. Instructions for submitting comments are included in the Department’s August 6, 2011 Pennsylvania Bulletin notice.

Given the extent that oil and gas production companies are recycling flowback and produced water from wells in the Marcellus Shale region, the proposed General Permit will likely be widely used. That said, oil and gas production companies would be wise to review the proposed terms of the General Permit, and submit comments or suggested revisions by September 6, 2011.

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