Friday, May 24, 2019

Shale Law in the Spotlight - EPA Issues Determination to Continue RCRA Exemption for Oil and Gas Wastes

Written by Chloe Marie – Research Specialist

In a regulatory determination dated April 2019, the U.S. Environmental Protection Agency (EPA) has indicated that revisions to the federal regulations for the management of wastes associated with the exploration, development, and production (E&P) of crude oil and natural gas under Subtitle D of the Resource Conservation and Recovery Act (RCRA) will not be necessary at this time by the agency. In reaching this conclusion, EPA carried out a comprehensive review of published literature and government documents as well as state regulations and programs relating to the management and ultimate disposal of oil and gas E&P wastes.

In a time of profound changes to the U.S. energy landscape, partly due to the increased use of directional drilling and hydraulic fracturing, EPA concluded that revisions to existing RCRA Subtitle D regulations were not needed as current E&P waste management programs at the state level are regularly updated to reflect the increased complexity of E&P waste management. According to EPA, these state-level regulations and programs have proven to be adequate to address this issue.


Subtitle D of RCRA – codified at 40 CFR Part 257 – establishes nationwide minimum requirements for the management, control, and disposal of non-hazardous solid waste, which includes any solid waste that is not identified as hazardous under Subtitle C of the RCRA. Oil and gas exploration and production wastes fall under Subtitle D as they have been exempted from RCRA Subtitle C regulation since the enactment of the Solid Waste Disposal Act Amendments of 1980, section 3001(b)(2)(A) – also known as the Bentsen Amendment. This legislation provides for the temporary exemption of “drilling fluids, produced waters, and other wastes associated with the exploration, development, and production of crude oil or natural gas.” This exemption was intended to give EPA the opportunity to conduct further examination into the risk inherent in oil and gas wastes and assess whether their regulation under RCRA Subtitle C was warranted.

On July 6, 1988, EPA issued a regulatory determination concluding that regulation of oil and gas E&P wastes under RCRA Subtitle C was not needed. In lieu of regulation, EPA decided to “implement a three-pronged strategy to address the diverse environmental and programmatic issues posed by these wastes by: (1) Improving Federal programs under existing authorities in Subtitle D of RCRA, the Clean Water Act, and Safe Drinking Act; (2) working with States to encourage changes in their regulations and enforcement to improve some programs; and (3) working with Congress to develop any additional statutory authorities that may be required.”

Environmental Integrity Project et al v. McCarthy, U.S. District Court for the District of Columbia, docket no. 1:16-cv-00842

On May 4, 2016, the Environmental Integrity Project, a non-profit environmental organization, along with six other environmental groups, filed a complaint against EPA alleging that the agency failed to comply with its “nondiscretionary and continuing duty” to review and, where necessary, revise regulations and guidelines for the disposal, storage, transportation, and handling of oil and gas wastes.

EPA is required under RCRA section 2002(b), 42 USC § 6912(b), to review and revise Subtitle D regulations and state plan guidelines for oil and gas wastes at least once every three years in order to remain current on changes in industry practices and to further address public health and environmental issues. According to the complaint, EPA failed to undertake the required review. The plaintiffs contend that EPA should have taken actions to review Subtitle D regulations and state plan guidelines after it determined in July 1998 that there was a need for regulations which were better “tailored” to reflect the complex reality of the challenges related to oil and gas wastes. The plaintiffs also argue that EPA did not fulfill its obligations under RCRA section 2002(b), 42 USC § 6912(b) because the last time EPA undertook such review of Subtitle D regulations and state plan guidelines goes back to 1988 and 1981, respectively.

According to the plaintiffs, “[w]ithout strong Subtitle D rules and matching state plan guidelines tailored to the oil and gas industry, there is no federal floor to ensure that protective requirements for the control, monitoring, and disclosure of oil and gas wastes apply nationwide. Instead, there remains a state-by-state patchwork, where operators can ‘venue shop’ for the least stringent requirements and community protections from human health and environmental impacts vary by state.”

On December 28, 2016, EPA entered into a Consent Decree in which it committed to take actions to address the management and control of wastes generated from oil and gas exploration and production activities. The U.S. District Court for the District of Columbia directed EPA to either initiate a rulemaking process for the revision of these regulations and guidelines or to issue a regulatory determination explaining the reasons why their revision is unwarranted, no later than March 15, 2019. 

EPA’s Regulatory Determination

Pursuant to this court order, EPA conducted a comprehensive review of all relevant studies, reports, and data coming from government, industry, and academic sources on the composition and behavior of oil and gas E&P wastes and also on factors such as management practices, waste characteristics, state programs, and damage cases in order to evaluate whether changes to Subtitle D regulations and state plan guidelines were needed. At the culmination of this review in April 2019, EPA issued a regulatory determination concluding that “revisions to regulations for E&P waste management are not necessary at this time, based on the currently available information.”

EPA focused its attention on current E&P waste management practices among relevant states by reviewing the programs of 28 out of the 34 states with reported oil and gas production. EPA declared that “[t]he result of this review shows that states are actively engaged in addressing the challenges posed by increased E&P operations, and have been responding in part by updating their waste management programs” and called their programs “robust.”

Drawing on the frequency, magnitude, and extent of waste release data from state programs, EPA determined that [t]he primary causes identified for these releases were human error and non-compliance with existing state regulations,” before adding that it did not believe revising federal solid waste regulations would prevent or substantially mitigate these releases. Rather, EPA determined that further inspection and enforcement actions from the states would help mitigate these releases.

In sum, following EPA’s review, management and control of oil and gas wastes will continue to lie with the states involved, but EPA has committed to support the states in their efforts to identify and address emerging issues related to waste management, public health, and the environment.


Additional Resources:

U.S. EPA Archive, Exemption of Oil and Gas Exploration and Production Wastes from Federal Hazardous Waste Regulations (October 2002)

This material is based upon work supported by the National Agricultural Library, Agricultural Research Service, U.S. Department of Agriculture.

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