Texas adopts new hydraulic fracturing fluid recycling rules

In our March 11th blog post, Flowback Fluid Recycling Regulation in the Barnett and Eagle Ford Shale Plays, we discussed the Texas Railroad Commission’s (“RRC”) proposed hydraulic fracturing flowback fluid recycling rules. On March 26, 2013, the RRC adopted these proposed rules with amendments.

In February, 2012 the RRC distributed a draft of proposed amendments to its commercial recycling rules, since the current set of rules did not contemplate flowback fluid recycling. The RRC used feedback from informal comments and a workshop to release the proposed rules on September 28, 2012.

The proposed rules’ official comment period ended on October 29, 2012, and the rules were considered and voted on at the RRC hearing on March 26th. During the comment period, the RRC received 10 comments, one from the Texas Parks and Wildlife, four from groups or associations, and five from companies.

The RRC’s original rules contemplated only two categories of commercial recycling facilities: mobile and stationary facilities. An increasing number of applications, however, were for facilities that did not fall into either category. As such, the adopted rules establish five categories of permitted commercial recycling activity:

  • On-lease Commercial Solid Oil and Gas Waste Recycling 
  • Off-lease or Centralized Commercial Solid Oil and Gas Waste Recycling 
  • Stationary Commercial Solid Oil and Gas Waste Recycling 
  • Off-lease Commercial Recycling of Fluid; and 
  • Stationary Commercial Recycling of Fluid

One of the biggest changes between the proposed and adopted rules relates to flowback fluid recycling without a permit. First, the RRC decided to use the broader term “fluids”, as it relates to recycling, instead of the narrower term “produced water and/or hydraulic fracturing flowback fluid” found in the proposed rule.

Relatedly, under the proposed rules, non-commercial on-lease produced water and/or hydraulic fracturing flowback fluid recycling could be conducted without a permit if the fluids were either (1) recycled for use as hydraulic fracturing fluid or other oilfield fluid to be used in the wellbore of an oil, gas, geothermal, or service well; or (2) treated to national drinking water standards under the federal Safe Drinking Water Act. Stating that federal drinking water standards alone do not fully address all potential risks form treated fluids, the RRC revised these provisions to create a tiered approach to the reuse of treated fluids.

Under this tiered approach, treated fluids reused in the wellbore of an oil, gas, geothermal, or service well are authorized by the RRC, and no further individual permit is needed. With the exception of discharges to waters of the state that require an individual permit by statute, non-wellbore uses of treated fluids are also authorized, so long as the reuse occurs pursuant to a permit issued by another state or federal agency. If fluid treatment results in distilled water, any reuse, other than discharge to waters of the state, is authorized. Other reuses will be considered and permitted on a case-by-case basis based on the volume and source of the fluids, the anticipated constituents of concern, and the proposed reuse of the treated fluid.

The adopted rules also established specific standards for the construction and operation of recycling pits that hold produced water and/or flowback fluid. The adopted rules have not yet been published in the Texas Register.

This article was prepared by Kristen Hulbert (khulbert@fulbright.com or 713 651 5303) from Fulbright's Environmental Law Practice Group.