Hydraulic Fracturing Water Disposal

HYDRAULIC FRACTURING:
WATER RESOURCES AND MANAGEMENT

WASTE WATER MANAGEMENT AND REGULATORY COMPLIANCE IN OIL AND GAS WELL DEVELOPMENT
Adam Cohen, Partner, Davis Graham & Stubbs LLP
Davis Graham & Stubbs LLP

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SESSION II
Legal, regulatory, and practical aspects of
water acquisition for oil and gas development
Zach Miller , DGS
Kevin Rein, Deputy State Engineer, CDWR
May 29, 2013

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What well cover:
Wastewater storage
Wastewater transportation
Wastewater disposal and reuse
What we wont cover

Water acquisition and water rights
Subsurface impacts of water disposal
Policy implications of water management
A cartoon video showing how to stimulate a well
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SOME STATISTICS (COLORADO O&G)

Liquid waste: 13.5 billion gal
Injected wastes: 7 billion gal (51%)
Surface discharges: 1.6 billion gal (12%)
Active UIC disposal well permits: 373
UIC disposal cost: $0.70 per barrel
Waste water treatment: $2 to $5 per barrel
Water purchase: $0.17 per barrel
Total Colorado Water Use (2010): 5.3 trillion gal
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Q: Flowback and produced water from
the hydraulic fracturing process are held in

a lined pit at the well pad. Is this legal, and
if so, what restrictions apply to the storage
of these liquids?

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Yes.
Produced water is E&P waste, subject to 900
Series Rules.
C.R.S. 34-60-103(4.5): "Exploration and production waste"
means those wastes that are generated during the drilling of
and production from oil and gas wells or during primary field
operations and that are exempt from regulation as hazardous
wastes under subtitle c of the federal "Resource Conservation
and Recovery Act of 1976", 42 U.S.C. sec. 6901 to 6934, as
amended.

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However, after August 1, 2013, must comply
with new Setback Rules
COGCC Rule 604.c.2.B:
Pits are not allowed on Oil and Gas Locations within the
Buffer Zone Setback [1,000 of Building Unit], except
fresh water storage pits, reserve pits to drill surface
casing, and emergency pits.
Closed loop drilling systems required instead.

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COGCC Pit Rules
902.b: minimum 2 feet of freeboard at all times
902.c: remove oil or condensate w/in 24 hours
902.d: netting or fencing where necessary to protect birds,
wildlife, public
904.a: liner required for most pits after May 1, 2009
907.c: produced water shall be treated prior to placement
in a production pit to prevent crude oil and condensate
from entering the pit

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Q: Small amounts of excess, unused acidic
hydraulic fracturing liquids remain after well

stimulation is completed. The tank is rinsed out,
and the rinse water is placed into a lined pit with
the flowback and produced water. Is this legal?

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No.
The E&P exclusion applies only to wastes
uniquely associated with exploration,
development, or production.
Only used materials are considered to be
uniquely associated wastes when disposed.
Discarded unused materials are not uniquely
associated and therefore are not excluded.
If the unused fluids are characteristic, then RCRA
applies (not E&P).
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Q: During well stimulation, some of the
flowback and produced water spills onto the

ground and onto a concrete pad. The
contaminated soil and spilled water are
containerized. Does E&P exclusion apply, and
how should these wastes be handled?

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Yes.
Produced water, including flowback, is E&P
waste. Same for contaminated soil.
COGCC Rules 906 (Spills and Releases) and
907 (Management of E&P Waste) apply

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Reporting (Rule 906) (Form 19):
Spills >5 barrels reported to COGCC within 10 days
Spills >20 barrels reported w/in 24 hours
Spills that threaten waters of the state, residence, or
livestock must be reported ASAP to COGCC and
Incident Report Hotline
Surface owner to be notified of all reportable spills
CRS 25-8-601
Notify WQCD of discharge that may cause pollution of
waters of the state (including groundwater)
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13
Q: During well stimulation, acid solutions
spill onto the ground and onto a concrete pad.

The contaminated soil and spilled water are
containerized. Does the E&P exclusion apply,
and how should these wastes be handled?

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No.
Spilled acid solutions and other fluids spilled
prior to use are not E&P wastes.
Waste characterization required.
If characteristic, RCRA hazardous wastes
regulations apply.

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Q: Flowback and produced water are
collected by a well service provider and

transported offsite for disposal. Does this
custody transfer affect the E&P exemption?
Is a hazardous waste manifest required?
Are any other records required?

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No. No. Yes.
Exempt wastes maintain their exempt status even
if they undergo custody transfer and are
transported offsite for disposal or treatment.
Custody transfer is used to define the endpoint of oil
and gas production operations, but it applies only to
the change in ownership of the product (e.g., crude
oil), not the waste.
RCRA regulations applicable to transport of

hazardous waste do not apply to E&P wastes.
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COGCC Rule 907.b.2
Waste generator requirements. Generators of E&P waste that is
transported off-site shall maintain, for not less than five (5) years,
copies of each invoice, bill, or ticket and such other records as
necessary to document the following requirements A through F:
A.
B.
C.
D.
E.
F.
The date of the transport;

The identity of the waste generator;
The identity of the waste transporter;
The location of the waste pickup site;
The type and volume of waste; and
The name and location of the treatment or disposal site.
Such records shall be signed by the transporter, made available for

inspection by the Director during normal business hours, and copies
thereof shall be furnished to the Director upon request.
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DOT Hazardous Materials Regulations (49 CFR
171 -177)
Establish hazardous materials regulations
(HMRs) for transportation activities
Designate hazardous materials for purposes of
transportation
Establish requirements for pre-transportation
functions, documentation, packaging, and labeling

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Barium, acids, and a long list of other chemicals
used in well development are subject to HMRs
(49 CFR 172.101)
HMRs apply to each person who offers a
hazardous material for transportation in
commerce or causes a hazardous material to be
transported in commerce (pre-transportation
functions -- 49 CFR 171.1(b))

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Depending on the type of material, the HMRs
specify:
Whether transportation is forbidden
Proper shipping name
Labeling and packaging requirements
Preparation and retention of shipping papers

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Q: A surface owner is willing to have waste
liquids from a hydraulic fracturing operation

used for dust control on lease roads. Is this a
proper means of disposal?

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Yes.
Rule 907.c.2.D
Produced water may be disposed of by roadspreading on lease
roads outside sensitive areas for produced waters with less than
3,500 mg/l TDS when authorized by the surface owner.
Roadspreading of produced waters shall not impact waters of
the state, shall not result in pooling or runoff, and the adjacent
soils shall meet the concentration levels in Table 910-1. Flowback
fluids shall not be used for dust suppression.

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Rule 100 (Definitions)
SENSITIVE AREA is an area vulnerable to potential significant adverse
groundwater impacts, due to factors such as the presence of shallow
groundwater or pathways for communication with deeper
groundwater; proximity to surface water, including lakes, rivers,
perennial or intermittent streams, creeks, irrigation canals, and
wetlands. Additionally, areas classified for domestic use by the Water
Quality Control Commission, local (water supply) wellhead protection
areas, areas within 1/8 mile of a domestic water well, areas within 1/4
mile of a public water supply well, ground water basins designated by
the Colorado Ground Water Commission, and surface water supply
areas are sensitive areas.
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Q: The Companys marketing department is
pushing an initiative for 100% recycling and reuse of flowback and other waste liquids
generated from hydraulic fracturing operations.
Can this be done in Colorado?

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Yes.
COGCC Rule 907.a.3
Reuse and recycling. To encourage and promote waste

minimization, operators may propose plans for managing E&P
waste through beneficial use, reuse, and recycling by submitting
a written management plan to the Director for approval on a
Sundry Notice, Form 4, if applicable. Such plans shall describe, at
a minimum, the type(s) of waste, the proposed use of the waste,
method of waste treatment, product quality assurance, and shall
include a copy of any certification or authorization that may be
required by other laws and regulations. The Director may require
additional information.
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COGCC Rule 907.c.3
Produced water reuse and recycling. Produced water may be
reused for enhanced recovery, drilling, and other approved uses
in a manner consistent with existing water rights and in
consideration of water quality standards and classifications
established by the WQCC for waters of the state, or any point of
compliance established by the Director pursuant to Rule 324D.

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Q: There is a creek adjacent to the well pad,
and the nearest injection well is 10 miles away.

Can waste water be discharged to the creek?
Can produced water be disposed in the injection
well? Can the Company construct a closer
injection well for disposal?

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Yes. Yes. Yes.
COGCC Rule 907.c.2.E
Produced water disposal. Produced water may be disposed as follows:
E. Discharging into state waters, in accordance with the Water Quality
Control Act and the rules and regulations promulgated thereunder.
Obtain CDPS Permit from WQCD (effluent limits, monitoring,
reporting)
Provide permit number, coordinates, and source on Form 26 (Source
of Produced Water for Disposal), and map showing location of outfall
to COGCC

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COGCC Rule 907.C.2.A
Produced water disposal. Produced water may be disposed as
follows:
A. Injection into a Class II well, permitted in accordance with Rule
325
Class II UIC wells (for injection of fluids from oil and gas
production, 40 CFR 144.6(b)) are permitted by COGCC
Rules 325 and 326 establish requirements for Class II well
permit application, well integrity testing, public notice, and
record keeping (Form 26)
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http://www.frontierosi.com/services/saltwater-disposal-well-schematic/

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Other disposal options:
907.c.2.B: Evaporation/percolation in a properly
permitted pit
907c.2.C: Disposal at a commercial facility
907c.2.D: Road spreading
907.c.2.F: Evaporation in a properly lined pit at a
centralized E&P waste management facility
permitted in accordance with Rule 908

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In the news
March 26, 2013. New Texas Railroad Commission Rules make noncommercial recycling of produced water and flowback fluids (16 TAC
3.8) easier no permit for treated fluids reused in the well bore.
March 28, 2013. In Re: Stonehaven Energy Management. EPA
Environmental Appeals Board finds EPA failed to demonstrate Class II
UIC permit for injection well in Venango County, PA adequately
considered possible seismic impacts.
April 25, 2013 (Inside EPA) Rep. Cartwright (D-PA) is developing
legislation to end E&P hazardous waste exemption; would require
Class I UIC permits.
April 30, 2013. Arapahoe County, CO adopts MOU for oil and gas
operations. Expedited permitting if comply with best practices.
April 30, 2013. Comment period on EPA hydraulic fracturing study
extended by six months to November 15, 2013 (78 FR 25267).

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Questions and Discussion
Adam Cohen
1550 17th Street
Denver, Colorado 80202
303.892.7321
adam.cohen@dgslaw.com

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34

Hydraulic Fracturing Water Disposal

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HYDRAULIC FRACTURING:

WATER RESOURCES AND MANAGEMENT

Davis Graham & Stubbs LLP

Davis Graham & Stubbs LLP

What we wont cover

SOME STATISTICS (COLORADO O&G)

Q: Flowback and produced water from

the hydraulic fracturing process are held in

Davis Graham & Stubbs LLP

Davis Graham & Stubbs LLP

Davis Graham & Stubbs LLP

Davis Graham & Stubbs LLP

Q: Small amounts of excess, unused acidic

hydraulic fracturing liquids remain after well

Davis Graham & Stubbs LLP

Q: During well stimulation, some of the

flowback and produced water spills onto the

Davis Graham & Stubbs LLP

Davis Graham & Stubbs LLP

Q: During well stimulation, acid solutions

spill onto the ground and onto a concrete pad.

Davis Graham & Stubbs LLP

Davis Graham & Stubbs LLP

Q: Flowback and produced water are

collected by a well service provider and

Davis Graham & Stubbs LLP

RCRA regulations applicable to transport of

The date of the transport;

Such records shall be signed by the transporter, made available for

Davis Graham & Stubbs LLP

Davis Graham & Stubbs LLP

Davis Graham & Stubbs LLP

Q: A surface owner is willing to have waste

liquids from a hydraulic fracturing operation

Davis Graham & Stubbs LLP

Davis Graham & Stubbs LLP

Q: The Companys marketing department is

Davis Graham & Stubbs LLP

Reuse and recycling. To encourage and promote waste

Davis Graham & Stubbs LLP

Q: There is a creek adjacent to the well pad,

and the nearest injection well is 10 miles away.

Davis Graham & Stubbs LLP

Davis Graham & Stubbs LLP

Davis Graham & Stubbs LLP

Davis Graham & Stubbs LLP

Davis Graham & Stubbs LLP

Davis Graham & Stubbs LLP

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