EPA May Regulate Drilling Waste as Non-Hazardous Under RCRA

Date: July 15, 2011

Source: News Room

Recent concern about hydraulic fracturing (fracking) may be prompting the EPA to consider broader efforts to regulate oil and natural gas drilling wastes. This was evidenced by a recent letter from the agency asking as many as 26 states for information on how "produced water" and other drilling wastes are currently managed under the Resource Conservation & Recovery Act (RCRA). Agency officials have so far indicated that they will develop RCRA "guidance on how to construct proper wastewater pits and impoundments" associated with so-called fracking operations. Lately however, fracking operations are moving closer to populated places such as in Pennsylvania which is causing alarm. Environmentalists, including the Natural Resources Defense Council (NRDC) petitioned the EPA last September to regulate energy and production (E&P) wastes under Subtitle C.

That would reverse a decades-old exemption for E&P wastes created under the so-called Bentsen provision of RCRA in 1988. But because the exemptions are particular to their origin in the drilling operation, some experts believe EPA could craft special treatment for specific types of E&P wastes such as "flowback," the injection fluid that flows back up from a well after the drilling process is completed, that perhaps should not be subject to regulatory exclusion from hazardous waste rules. Conversely, produced water, or the water brought up from below the surface along with the oil or gas, drilling fluids, drill cuttings, geothermal production fluids and a host other components of drilling waste would remain exempt.

Meanwhile, some question EPA's existing authority under RCRA even to issue guidance on wastewater pits and impoundments, and worry that such guidance is likely to be redundant or interfere with state efforts, particularly since some western states, like New Mexico, have adopted their own strict standards for how drillers must contain wastewater and drilling muds. Another option for EPA is increased enforcement, which it can do under RCRA's emergency response provisions, which allow action to address solid waste handling that may present an imminent and substantial endangerment to health or the environment.

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