EPA announced recently it is developing guidance on how drilling operators should manage wastewater from the hydraulic fracturing process (“fracking”).  It is anticipated that the guidance will clarify whether and how wastewater can be accepted for processing.

Since the State of Pennsylvania ordered its publicly owned treatment works to stop accepting fracking wastewaters last April (claiming the plants were ill-equipped to remove pollutants from the wastewater), interstate shipment of fracking wastewater has increased. It is anticipated that this guidance will also help EPA and states address the out-of-state shipment of fracking wastewaters for processing or disposal.

Last September, the Natural Resources Defense Council filed a rulemaking petition seeking to have fracking wastewater listed as a hazardous waste under Subtitle C of the Resource Conservation and Recovery Act (“RCRA”). While not directly in response to this petition, EPA’s decision to pursue guidance may indicate that it will not revoke the exemption of fracking waste from regulation as a hazardous waste under RCRA.