Definition and legal classification of flowback
Flowback is a term that plays a central role in the extraction of oil and natural gas, particularly in the context of hydraulic fracturing (“fracking”). It refers to the return flow of formation water, frac fluid, and various other liquid components from a borehole to the surface after frac fluid has been previously injected into the rock. In the legal context, there are comprehensive requirements regarding the handling, management, disposal, documentation, and environmental compatibility of this process.
Technical background and legal framework
Technical aspects of flowback
Flowback consists of a mixture of water, chemicals, dissolved solids, and potential contaminants that reach the surface in the days or weeks following the frac operation. The precise chemical composition and the volume of flowback vary depending on the frac fluid used and geological conditions.
Environmental legal requirements
Water Resources Act (WHG)
The Water Resources Act (WHG) forms the central legal basis for the handling of flowback. Any introduction or discharge of flowback into surface waters or groundwater is subject to strict permit requirements (§§ 8, 9 WHG). The required measures to prevent harmful environmental impacts from hazardous substances, by-products, and radioactivity are specified in regulations.
Circular Economy Act (KrWG) and waste law
Flowback is generally considered waste within the meaning of the Circular Economy Act (KrWG) once further use is excluded or uneconomical. This results in extensive obligations for waste avoidance, recovery, and disposal (§§ 3, 15-17 KrWG). Responsibility usually lies with the operator, who, according to the Waste Records Ordinance (NachwV), must ensure proper disposal and documentation.
Immission control law
With regard to air emissions and potential environmental impacts from the storage or treatment of flowback, the provisions of the Federal Immission Control Act (BImSchG) and corresponding regulations apply. Under certain conditions, handling flowback may be subject to an immission control permit requirement.
Mining law aspects
The Federal Mining Act (BBergG) regulates both the extraction and processing and handling of by-products like flowback during permit-required mining activities. Approval of such projects regularly requires environmental impact studies, which also involve comprehensive risk assessments concerning the generated flowback and its handling.
Notification obligations and documentation
As part of mining authority supervision, operators are subject to a notification obligation pursuant to § 51 BBergG regarding the type, quantity, and disposal route of flowback. The documentation must be archived and presented to the relevant authorities upon request.
Special duties of care and liability obligations
Operator liability
For damages arising in connection with flowback, operators are generally liable under general civil law principles (§ 823 BGB) as well as specific statutory provisions such as the Environmental Liability Act (UmwHG). A strict liability standard applies in cases of strict liability.
Duties of care
Operators are obliged to fulfill all duties of care in order to prevent dangers to the public and the environment from flowback. This includes measures to prevent leaks, monitoring of facilities, and safe waste management.
Information and participation rights of third parties
Residents, environmental associations, and municipalities have a right to early information and participation within approval procedures, especially in the context of the Environmental Impact Assessment Act (UVPG), if flowback is or may be affected.
International and European legal framework
In addition to national regulations, European law has a significant influence on the handling of flowback. The Water Framework Directive (2000/60/EC) and the European Waste Framework Directive (2008/98/EC) obligate member states to comply with ambitious environmental standards regarding substance inputs, waste disposal, and monitoring, which have been implemented into national legislation.
Summary
Flowback refers to the reflux of fluids used and mobilized during the fracking process from the borehole. Under German law, the management of flowback is regulated by a multitude of laws and regulations, particularly concerning environmental protection, waste disposal, emission control, and mining law. The legal obligations focus on safe handling, comprehensive documentation and notification duties, as well as the protection of humans and the environment from harmful effects. Operators are subject to extensive liability rules and regulatory oversight. Due to the ongoing development of environmental and mining law, the handling of flowback remains a dynamic topic in the German and European legal framework.
Frequently asked questions
What legal requirements must be observed when disposing of flowback?
The disposal of flowback in Germany is subject to strict legal requirements, particularly in connection with the Water Resources Act (WHG), the Circular Economy Act (KrWG), and various regulations such as the Wastewater Ordinance (AbwV) and the Landfill Ordinance (DepV). Before flowback is discharged or disposed of, it must be checked whether the fluid contains hazardous substances (§ 48 WHG) or should be classified as hazardous waste (§ 3 para. 5 KrWG). As a rule, a permit under the WHG is required, especially if the flowback is to be discharged into public water bodies or sewers. In addition, companies must provide evidence of proper disposal and regularly report to the competent authority. For transboundary shipment, the requirements of the EC Waste Shipment Regulation also apply. Violations of the legal provisions can result in significant civil and criminal consequences.
What permits are required before starting flowback management?
Before commencing any activities related to flowback, it is necessary to obtain all required public law permits. These include in particular a water permit under the Water Resources Act (§ 8 et seq. WHG), possibly a waste law permit under the Circular Economy Act, and depending on the site, notification or permit requirements under the Federal Immission Control Act (BImSchG). In certain cases, an environmental impact assessment (EIA) must also be carried out. The respective permitting authority may impose further conditions and requirements, such as obligations regarding monitoring, record keeping, or reporting duties. It is advisable to involve the competent authorities early in the project planning to minimize permitting risks.
Who is liable for environmental damage caused by improper handling of flowback?
For environmental damage caused by improper handling of flowback, the operator of the drilling or storage facility is primarily liable under the provisions of the Environmental Damage Act (USchadG) as well as under general civil law (§ 823 BGB). In addition, there may be administrative and possibly criminal sanctions under the WHG, KrWG, or BImSchG. Liability extends not only to the remediation of the damage caused, but may also include the restoration of the original environmental condition. In addition, private third parties, such as property owners or residents, may assert claims for damages.
What documentation obligations exist in the handling of flowback?
In the legal context, there are extensive documentation obligations for handling flowback. Companies are required to comprehensively document all relevant processes—from generation through transport to disposal—and to keep records in accordance with § 49 KrWG and the Waste Records Ordinance (NachwV). This covers both the quantity and composition of the flowback as well as the disposal process used and the service providers involved. Depending on the hazard of the flowback, specific register and reporting obligations to the competent authorities may also apply. These documents must be kept for the legally prescribed period (usually five years) and be presented to authorities on request.
Are there special legal requirements for the transport of flowback?
Yes, there are special legal requirements for the transport of flowback. Depending on its classification as dangerous goods according to ADR (European Agreement concerning the International Carriage of Dangerous Goods by Road), the relevant provisions must be observed. These include in particular the use of approved containers, labelling requirements, the obligation to carry accompanying documents, and special qualifications for transport personnel. Regardless of dangerous goods classification, waste law applies, so carriers require an appropriate collection or transport permit and must maintain an electronic record-keeping system. These regulations are intended to protect both the environment and the safety of people and infrastructure during transport.
How do water law permits affect operations?
The water permit is of central importance to operations in the context of flowback management, as it regulates not only the discharge of wastewater but also imposes requirements on operational management and obligations concerning water and environmental protection. It may contain numerous additional requirements, such as limits on pollutant concentrations, regular monitoring of emissions, and measures for damage prevention. Failure to comply with the requirements, either in whole or in part, can result in regulatory enforcement measures, as well as revocation of the permit and financial sanctions or criminal investigations. Compliance with all conditions is therefore essential for legally compliant operations.
What role do environmental impact assessments play in flowback management?
Environmental impact assessments (EIA) are legally required in many flowback projects, as they serve to comprehensively identify and evaluate the environmental impacts (§ 2 UVPG). They must be carried out if significant adverse environmental effects are expected under statutory provisions or the project falls within the scope of EIA-mandatory activities. Within the EIA, all relevant environmental law aspects—such as soil, water, and nature protection, as well as the interests of other resource uses—are examined. The results of the EIA directly influence the permitting procedure and may lead to conditions or even the prohibition of the project if significant hazards or impairments to the environment cannot be adequately excluded.
