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On May 16th, 2019 I had the honor of testifying before congress on the impacts of water pollution, above and below ground, from oil and gas development (Link to full video). In response to my testimony, I was asked three follow up questions that would provide perspective and guidance to representatives of House Subcommittee on Energy and Mineral Resource as they consider legislation to amend regulations. Below is my response in its entirety.
Dear Chair Lowenthal,
Please find my responses to the questions presented by Representative Matt Cartwright below. Thank you, again, for the opportunity to contribute to the record on this important topic of oil and gas impacts to both surface and groundwater quality.
Question 1: Can you walk through the federal requirements for evaluating, handling, and disposing of hazardous waste from a non-oil and gas company? Is the waste tested, and if it is hazardous, are there precautions necessary to ensure it does not pollute our waters?
The procedure for determining whether discarded material is a hazardous waste is that the waste is either listed in regulation at 40 C.F.R. §§ 261.30-.33 or the discarded material exhibits the characteristics of ignitability, corrosivity, toxicity or reactivity pursuant to 40 C.F.R. §§ 261.20-.24. Once subject to Subtitle C of RCRA as a hazardous waste, generators, transporters and those that treat, store or dispose of hazardous wastes must seek a permit to conduct their waste management activities.[1] This system of permitting is commonly known as the “cradle-to-grave” hazardous waste management system that uses a system of waste tracking from the point of generation to the point of treatment, storage and disposal. Entities and individuals involved in that system must receive a permit and subject itself to inspections and enforcement under RCRA.
a. What are some of the potential health ramifications should this procedure not be done effectively?
Congress promulgated the Resource Conservation and Recovery Act because “disposal of solid waste and hazardous waste in or on the land without careful planning and management can present a danger to human health and the environment,” and “the placement of inadequate controls on hazardous waste management will result in substantial risks to human health and the environment.”[2] While I cannot comment on the impacts to public health and environment in scientific literature, it is clear that Congress believed that inadequate controls of hazardous waste provided the risk of imminent and substantial endangerment.
Question 2: Can you walk through the federal requirements for evaluating, handling, and disposing of hazardous waste from oil and gas companies?
The Resource Conservation and Recovery Act exempts oil and gas exploration and production wastes as hazardous wastes under Subtitle C after an Environmental Protection Agency determination of low toxicity of such wastes in 1988.[3] The wastes covered by the oil and gas exploration and production exemption include “gas and oil drilling muds and oil production brines, drilling fluids, produced water, and other wastes associated with the exploration, development, or production of crude or natural gas….”[4] While these wastes may be treated as hazardous wastes by states despite the exemption, and wastes from oil and gas exploration and production are subject to solid waste regulations under RCRA Subtitle D, it is not the risk posed by the wastes from exploration and production that determines whether the waste is subject to the federal exemption.
Instead, the activity controls whether the exemption applies. If the waste was brought to the surface during oil and gas exploration and production activities or if the waste was generated by contact with the oil and gas production stream during the removal of produced water or other contaminants from the product, then the exemption applies. The U.S. EPA provides a list of exempt and non-exempt exploration and production wastes on pages 10 and 11 of its informational materials on the history of the exemption.[5] Notably, the exemption does not apply to wastes generated from the transportation of oil or gas, such as pipelines. Transportation begins at the point where gas leaves the facility after production separation and dehydration.
Pursuant to EPA’s duties under section 2002(b) of RCRA and a consent decree, in April 2019 EPA determined that revisions to its approach to oil and gas exploration, development and production wastes were not necessary.[6] Thus, wastes from oil and gas, despite any hazardous characteristics as ignitable, corrosive, reactive or toxic, are treated as “solid waste” under the Resource Conservation and Recovery Act rather than hazardous wastes. Subtitle D of RCRA regulates “solid waste disposal facilities,” which are typically landfills, in the disposal of non-hazardous waste. Each disposal facility is subject to recordkeeping, groundwater monitoring and corrective action standards through state programs,[7] but generation, transport, storage and treatment are not activities that need a RCRA authorization. Any disposal of solid waste without a permit is known as “open dumping,” which can be enforced against by the state or citizens.
a. Is waste from oil and gas companies that is equally as hazardous somehow less of a threat to our health and water?
No, and EPA states as much in their latest review of the management of exploration, development and production wastes from the oil and gas industry. Specifically, EPA states
“[e]xemption from RCRA Subtitle C does not mean that these wastes cannot cause harm to human health or the environmental if improperly managed. Rather, EPA concluded that any risks associated with these wastes could be effectively controlled by improvements to existing state and federal regulatory programs.”[8]
Question 3: Can you explain the difference in federal requirements for stormwater runoff permitting for an oil and gas company as compared to a real estate developer? And is there a reason that we would need less permitting for [a] fracking site as opposed to a commercial development?
The Clean Water Act specifically exempts stormwater runoff from “oil and gas exploration, production, processing, or treatment operations or transmission facilities, composed entirely of flows which are from conveyances or systems of conveyances (including but not limited to pipes, conduits, ditches, and channels) used for collecting and conveying precipitation runoff and which are not contaminated by contact with, or do not come into contact with, any overburden, raw material, intermediate products, finished product, byproduct, or waste products located on the site of such operations.”[9] The list of exempt oil and gas activities and facilities is extensive.[10] However, Construction General Permits and Multi-Sector General Permits are required when stormwater does come into contact with raw materials and waste product depending on the quantity of the discharge.[11]
A real estate developer does not have an exemption from the requirement to obtain a permit for any discharge of pollutants from a point source to navigable waters. Discharge permits under section 402 of the Clean Water Act subject the discharger to effluent limitations based on the best treatment technology or management practices as well as the water quality of the receiving stream.[12] Discharge permits also establish the right of inspection, the requirement to monitor and report, and enable the government and citizens to enforce the permit.
Sincerely yours,
Emily A. Collins, Esq.
Executive Director & Managing Attorney
[1] 42 U.S.C. §§ 6922, 6923 and 6924.
[2] 42 U.S.C. § 6901(b)(2), (5).
[3] 42 U.S.C. § 6921(b)(1); 53 Fed.Reg. 25447 (1988).
[4] 40 C.F.R. § 261.4(b)(5).
[5] Exemption of Oil and Gas Exploration and Production Wastes from Federal Hazardous Waste Regulations, Office of Solid Waste, U.S. EPA, EPA530-K-01-004, October 2002 available at https://yosemite.epa.gov/oa/eab_web_docket.nsf/Attachments%20By%20ParentFilingId/945EF4 25FA4A9B4F85257E2800480C65/$FILE/28%20-%20RCRA%20E%26P%20Exemption.pdf
[6] Management of Oil and Gas Exploration, Development and Production Wastes: Factors Informing a Decision on the Need for Regulatory Action, U.S. EPA, available at
https://www.epa.gov/hw/management-oil-and-gas-exploration-development-and-production-wastes-factors-informing-decision
[7] 40 C.F.R. § 239.6.
[8] Management of Exploration, Development and Production Wastes: Factors Informing a Decision on the Need for Regulatory Action, U.S. EPA Office of Land and Emergency Management Office of Resources Conservation and Recovery, April 2019, p. 1-2. available at https://www.epa.gov/sites/production/files/2019-
04/documents/management_of_exploration_development_and_production_wastes_4-23-19.pdf
[9] 33 U.S.C. § 402(l)(2).
[10] 70 Fed.Reg. 33628, 33635. Types of Oil and Gas Activities and Facilities that are Either Exempt or Non-Exempt from Stormwater Permitting, U.S. EPA available at
https://www.epa.gov/npdes/oil-and-gas-stormwater-permitting#undefined (listing both exempt activities/facilities and non-exempt facilities and activities).
[11] 40 C.F.R. §§ 110.6, 117.21, 122.26, 302.6.
[12] 33 U.S.C. §§ 1342, 1311(a), 1314(a) & (b).
