On July 19, 2011 Clean Water Action and Three Rivers Waterkeeper filed suit against the Municipal Authority of the City of McKeesport (the “Authority”) in the U.S. District Court for the Western District of Pennsylvania. The Authority is authorized to discharge treated sewage pursuant to an NPDES Permit (the “Permit”) issued on April 22, 2008. Following issuance of the Permit, the Pennsylvania DEP entered an order on October 23, 2008 finding that the effluent from its wastewater plant had elevated levels of Total Dissolved Solids (TDS) and limiting the volume of oil and gas wastewater the Authority was permitted to accept (the “Order”).

The suit was filed pursuant to the Clean Water Act and Pennsylvania’s Clean Streams Law. It seeks to enjoin the Authority from accepting and treating wastewater from oil and gas operations. The complaint avers that the Authority is in violation of the terms of its Permit because it did not disclose that it receives oil and gas wastewater at the time it applied for the Permit. Additionally, the complaint avers that the DEP Order cannot serve to alter the terms of the Permit to allow the processing of oil and gas wastewater because a change in the wastestream processed pursuant to the Permit requires approval from the permitting agency and public participation in the permitting process, including a public notice and comment period, before commencement of the discharge. The suit requests that the court enter an order enjoining the Authority from processing oil and gas wastewater and requiring the Authority to apply for a modified permit before accepting any such water.

Water issues continue to be at the forefront of the energy sector and represent a trend that will continue to need monitoring.