Delivering A Federal Update On Regulatory 

Framework Regarding Managing Produced 

Water In The Rockies To Ensure Produced 

Water Is Being Utilized Within Federal 

Guidelines 

Regarding Managing Produced Water

In The Rockies 

Produced Water Reuse Initiative 2014– Rocky Mountains 

October 29-30, 2014

Ayn Schmit 

EPA Region 8

1 
Produced Water Management

Current Practices 

• Evaporation ponds/pits 

• Surface discharge (with or w/o treatment) 

• Land application 

• Underground injection 

• Reuse/recycling (with or w/o treatment) for drilling & 

completion activities 

• Reuse/recycling (with or w/o treatment) for other uses 

• Preferred management options specific to geography and 

PW quality and very dynamic 

2 
Produced Water Management

What’s Going On in Region 8 States? 

• Colorado

• 51% injected; 12% surface discharged

• North Dakota 

• 48% injected for EOR; 48% disposed via Class II injection

• Montana 

• 60% injected for EOR; 26% disposed via Class II injection; 

14% evaporation/discharge for beneficial use

• WY Powder River Basin 

• 54% surface discharged; 35% off-channel ponds; 5% 

irrigation; 3% injected

Sources: Denver Post 4/15/13; Argonne National Labs Sept 2009 3 
Produced Water Management 

Practices to Minimize Impacts 

• Closed loop or semi-closed loop drilling 

• Siting of pits away from critical resources and operation to 

maintain liner and ensure adequate freeboard 

• Lining of pits/ponds and removal of wastes prior to closure 

• RO and other treatment 

approaches to enable reuse or to 

reduce pollutants in discharge 

• Potential future use of reduced 

water or waterless HF techniques 

such as LPG 

4 
Produced Water Management Approaches 

Evaporation Ponds/Pits

• Potential for migration to groundwater 

• Potential air emissions of VOCs/HAPs 

• Potential spills/releases 

• Potential wildlife/migratory bird 

impacts 

5 
Produced Water Management Approaches

Underground Injection

• Can provide safe alternative to 

managing on the surface 

• Potential for induced seismicity 

• If injected improperly, could affect 

drinking water aquifers 

6 
Produced Water Management Approaches

Surface discharge

• Where quality is adequate, can provide beneficial uses 

(livestock water, irrigation)

• Can impact receiving waters

– Salinity 

– Sodium adsorption to irrigated soils 

– Hydrocarbons 

– Hydromodification of stream channels 

7 
Overview of EPA Role in Produced Water Management 

• The EPA supports safe and responsible development of 

unconventional natural gas and oil resources 

• EPA authorities address emissions, discharges or accidental 

releases to air, water and land 

• EPA works with state environmental and oil & gas agencies to 

ensure the implementation of applicable federal laws and 

regulations 

• EPA implements those laws and regulations in Indian country 

• EPA has no statutory/regulatory role in managing water use 

8 
Federal Water Authorities Applicable 

to Produced Water Management 

Clean Water Act 

• Water quality criteria and 

standards 

• Effluent Limitations 

Guidelines and Standards 

(ELGs) 

• National Pollutant Discharge 

Elimination System Permitting 

• National Pretreatment 

Program 

Safe Drinking 

Water Act 

• Underground Injection Control 

Program Class II regulations 

• Hydraulic fracturing (HF) using 

diesel fuels

• Produced water/flowback

injection

• Ensure public health if USDWs 

become contaminated 

9 
Produced Water Management

Federal Regulatory Framework: Clean Water Act

Criteria for the protection of water quality:

• Under the CWA, States develop water quality criteria for specific 

pollutants to protect human health and aquatic life 

• EPA’s recommended national water quality criteria are used by 

states to develop or update water quality standards 

• EPA is updating chloride water criteria for the protection of 

aquatic life and plans to issue a proposal in July 2015

– May affect discharges of treated or untreated produced water 

10 
11 

CWA Programs to Control Industrial Discharges 

POTW

Industry

Industry

National Pretreatment 

Program 

(“indirect dischargers”) 

National Pollutant Discharge 

Elimination System (NPDES) 

discharge permits 

(“direct dischargers”) 
Produced Water Management

Federal Regulatory Framework: Clean Water Act 

Surface discharges of produced water under the CWA: 

• Oil & Gas Extraction Effluent Limitation Guidelines and standards 

prohibit direct discharge of produced water from onshore O&G wells

(40 CFR Part 435)

• However, west of the 98th meridian, direct discharge for agriculture 

and wildlife use is allowed if– 

the produced water is of “good enough quality” to be used for wildlife or livestock 

watering or other agricultural uses and is “actually put to such use during periods 

of discharge” 

• The ELG does not currently address unconventional oil & gas 

wastewater discharges to POTWs 

• Discharges of produced water from CBM production are not subject 

to the ELG 12 
Produced Water Management 

Federal Regulatory Framework: Clean Water Act

Revisions to Oil & Gas Extraction ELG:

• In fall 2011 EPA initiated a proposed rulemaking to establish 

pretreatment requirements for wastewater discharges from 

unconventional oil & gas producers to POTWs 

• EPA plans to propose a pretreatment rule in early 2015 for 

public comment 

• In 2011 EPA also initiated a rulemaking to develop technologybased regulations for CBM wastewater discharges 

• EPA recently announced a decision not to move forward with 

these regulations

13 
Produced Water Management 

Federal Framework: Safe Drinking Water Act

• EPA’s central authority to protect drinking water is from the 

Safe Drinking Water Act (SDWA) 

• SDWA requires EPA to set legal limits on the levels of 

contaminants in drinking water (MCLs) 

• SDWA also requires EPA to protect underground sources of 

drinking water (USDWs) from contamination caused by 

underground injection 

• The Energy Policy Act of 2005 revised the definition of injection 

to exempt hydraulic fracturing from the requirement for a UIC 

permit except when diesel is used 

• SDWA contains provisions to ensure protection of human health 

when a USDW becomes contaminated 

14 
Produced Water Management 

Federal Regulatory Framework: SDWA

Injection of fluids associated with O&G production (Class II) 

• Injection of fluids recovered from the subsurface for disposal 

purposes or for enhanced recovery of oil or natural gas 

• Construction and siting requirements 

– Constructed so they inject into a formation separated from USDWs by confining 

zone 

– Cased and cemented to prevent movement of fluids into or between USDWs 

– Internal and external well integrity testing required 

• All EPA Region 8 state oil & gas agencies have been delegated 

implementation of the Class II program except in Indian country 

• Approximately 170,000 Class II wells nationwide 

15 
Produced Water Management 

Federal Regulatory Framework: SDWA

An aquifer exemption is required if injection into a USDW is 

proposed:

• Criteria for AEs set forth in 40 CFR Part 146.4 

• Criteria for exempting aquifer include: “it cannot now and will not in 

the future serve as a source of drinking water...” 

• An AE issued by a state must be approved by EPA as a revision to 

the state’s delegated UIC program 

• EPA issues AEs in Indian country 

16 
Produced Water Management 

Federal Regulatory Framework: SDWA

Hydraulic fracturing with diesel fuels:

• EPA published Permitting Guidance for Oil and Gas Hydraulic 

Fracturing Activities Using Diesel in February 2014 

http://water.epa.gov/type/groundwater/uic/class2/hydraulicfracturing/upload/epa816r14001.pdf 

• Outlines for EPA permit writers: 

– Requirements for diesel fuels used for hydraulic fracturing wells 

– Technical recommendations for permitting those wells 

– A description of “diesel fuels” 

• Recommendations in the guidance are built on best practices from 

industry and state oil and gas agencies 

17 
Produced Water Management

Federal Regulatory Framework 

Surface evaporation ponds/pits–

• Regulation under the Resource Conservation Recovery Act: 

E&P wastes excluded from definition of hazardous waste 

• Still subject to RCRA solid waste requirements- primarily 

implemented by state environmental 

agencies 

• EPA retains authority under RCRA and 

Superfund to address releases of these 

exempt wastes 

18 
Produced Water Management 

Federal Regulatory Framework 

Surface evaporation ponds/pits– Clean Air Act

• EPA sought comment on VOC emissions from ponds in August 2011 

proposed oil & gas NSPS rule 

• EPA opted not to include regulations for evaporation ponds in the 

August 2012 Final Rule 

• Some states are issuing CAA Title V permits for evaporation ponds that 

exceed emissions threshold of 100 T/yr (e.g. Utah and Colorado) 

• Beginning in March 2016 ponds/pits in Indian country that emit >5 T/yr 

will need a permit under EPA’s Tribal NSR minor source rule 

19 
Produced Water Management 

Federal Regulatory Framework 

Spills and releases of produced water– 

Oil Pollution Act

• Authority applies where sufficient oil is present in spilled material to 

cause a sheen on waters of the U.S. 

CERCLA

• Produced water is not excluded from CERCLA under definition of 

“petroleum” (§101(14) ) 

• Produced water may be considered a pollutant or contaminant and could 

contain hazardous substances (e.g. radionuclides, BTEX) 

• Release of hazardous substances can prompt CERCLA response 

actions. CERCLA also provides for response to pollutants and 

contaminants in some circumstances

20 
Produced Water Management

Federal Regulatory Framework 

Land application– 

• Generally not regulated under federal statute/regulation 

• Still subject to RCRA imminent and substantial 

endangerment provision 

• Road application for dust control generally allowed/

regulated by states; not federally regulated 

21 
Produced Water Management

Federal Regulatory Framework 

National Environmental Policy Act

• NEPA requires federal agencies to analyze and disclose the 

potential environmental impacts of proposed actions and 

alternatives to those actions– EA/FONSI or EIS 

• The Clean Air Act requires EPA to independently review and 

comment on EISs 

• BLM, USFS and other land managers go through NEPA process 

for planning documents, mineral leasing and project approvals 

for oil & gas production on federal lands/minerals 

• EPA evaluates air/water resource and other environmental 

concerns in oil & gas EISs as well as adequacy of analysis 

22 
23 

Produced Water Management 

in the West 

 Challenges and opportunities...