EPA Fracking Discharge Permits On Indian Lands Appealed

Washington, DC — U.S. Environmental Protection Agency wastewater permits issued recently on Indianlands are illegal and should be rescinded, according to an appeal filed today by Public Employees for Environmental Responsibility (PEER). The permits allow mass discharge of waters laced with toxic oil and gas drilling chemicals into a stream, for consumption by wildlife and livestock. The PEER petition to EPA’s Environmental Appeals Board highlights EPA’s approval of surface disposal of drilling wastewater without even identifying the chemicals in the hydraulic fracturing (“fracking”) fluids, let alone setting effluent limits for the harmful contaminants contained within, contrary to its own regulations.

In mid-March, EPA finalized new water discharge permits for nearly a dozen oil fields on or abutting the Wind River Reservation in Wyoming (EPA has Clean Water Act jurisdiction on tribal lands). Despite the nearly two-year delay since they were first proposed, the final permits are little changed and fail to –

• List the array of toxic chemicals being discharged. To avoid the appearance it was regulating fracking,EPA did not even ask operators to submit the chemical formulation or concentrations of fracking and well maintenance fluids to be injected downhole and then allowed to flow back to the surface;

• Set any discharge limits for fracking chemicals. Instead the permit asks rig operators to keep their own “inventory” of fracking and well maintenance chemicals they use; and

• Tighten lax monitoring requirements that allow sampling long after fracking or maintenance events and toxins have been flushed downstream.

“The chemicals in fracking fluids are so politically charged that EPA dare not speak their names,” stated PEERExecutive Director Jeff Ruch, noting that EPA headquarters involvement appears to have short-circuited normal permit safeguards. “Against all reason, EPA is refusing to regulate fracking fluids even after they flow back to the surface and are pumped into streams.”

While the exact mixture used for fracking by individual operators is treated as a trade secret, one analysis cited by PEER identifies 632 chemicals now used in shale-gas production. More than 75% of them affect the respiratory and gastrointestinal systems; 40-50% impact the kidneys and the nervous, immune and cardiovascular systems; 37% act on the hormone system; and 25% are linked with cancer or mutations.

“We would invite advocates of feeding fracking fluids to animals to try it themselves,” Ruch added, pointing out the irony that earlier this month EPA proposed fracking wastewater be pre-treated before discharges are sent to municipal wastewater treatment facilities because it was so “potentially harmful.”

The PEER appeal also challenges the legality of considering fracking fluids as “produced waters” – an exemption in Western U.S, allowing surface application of drilling flowback waters for “agricultural or wildlife propagation,” in the words of the federal regulation. PEER argues that fracking fluids are so toxic they violate the requirement that produced water must be “of good enough quality to be used for wildlife or livestock watering or other agricultural uses.” In 2014, PEER filed a formal rule-making petition asking EPA to clarify the produced water definition but EPA has yet to respond.

The EPA Environmental Appeals Board is the final agency authority on permit issuance. If it accepts the PEERappeal, EPA has 30 days to answer. Review by the Board also exhausts administrative remedies required before the matter can be litigated in court.