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