On March 14, residents and officials in Brady Township, Pennsylvania, appealed an underground injection control (UIC) permit issued by U.S. EPA to Windfall Oil and Gas, permitting disposal of oil and gas wastewater by underground injection. The Petitioners assert that the UIC permit is invalid because the permit and its conditions are inadequate to ensure that the permitted injections will not endanger underground drinking water sources (USDWs) because EPA did not adequately consider seismic risks caused by the underground injection. If the appeal is successful, it could force EPA to evaluate UIC permit applications for oil and gas wastewater for the potential that they may cause seismic activity which, in turn, could lead to contamination of drinking water sources. Currently, EPA takes the position that because such UIC permits are for Class II wells (for nonhazardous waste), its regulations do not require EPA to evaluate the applications for the potential to cause seismic activity.

A report was completed by the UIC National Technical Workgroup on January 17 that recommends that regulators consider and take steps to minimize seismic risks in the permitting process. Although the report states that EPA is unaware of any contamination of underground drinking water sources resulting from seismic activity caused by underground injection, EPA has found that earthquakes in Ohio, Arkansas, and Texas were linked to increased volumes of oil and gas wastewater injections.  Unlike the rules for underground injection of hazardous wastes (Class I wells), EPA’s rules for Class II wells do not explicitly require the agency to evaluate or consider seismic risks. They do, however, generally require the agency to consider whether the geologic conditions of the formation receiving the injection will prevent endangerment to underground drinking water sources. The Petition takes the position that for a Class II UIC permit, “the permittee must satisfy EPA or the delegated state agency that its injection will not endanger USDWs, and the permitting authority is required to proscribe such permit conditions as may be necessary to ensure that no risk of endangerment is present.”  The answer by the Environmental Appeals Board to that assertion could dictate consideration of seismic risks in Class II permits.

For more information on permitting requirements for underground injection of wastewaters, or on the regulation of fracking activities generally, contact Steve O’Day.