Tuesday, February 16, 2010

Why don't tanker trucks carrying drilling waste water have to display "hazardous" placards?

Oil and gas drilling waste is exempt so they don't have to consider it as hazardous.

Earthworks has put together a great brochure called The Oil and Gas Industry’s Exclusions and Exemptions to Major Environmental Statutes. It goes through each act and the exemptions that the industry receives.

The answer to the question above lies in the Resource Conservation and Recovery Act

The Resource Conservation and Recovery Act (RCRA) of 1976 is currentlydivided into 10 subchapters: I through X, comprising four interrelatedprograms for the management of hazardous waste and solid waste found atSubchapters III, IV, IX, and X. Subchapter III, commonly referred to asSubtitle C, creates a federal “cradle-to-grave” hazardous waste managementprogram. Subchapter IV, commonly referred to as Subtitle D, encouragesstates to develop comprehensive plans to manage primarily nonhazardoussolid wastes (e.g., household waste). Subchapter IX, commonly referred toas Subtitle I, regulates the use and monitoring of underground storage tanks.Subchapter X, commonly referred to as Subtitle J, establishes regulations formedical waste from the time it is generated until the time it is disposed.

Congress defined hazardous waste in RCRA § 1004(5), but left the EPA todecide through a Regulatory Determination the specific characteristics ofhazardous waste and to promulgate lists of wastes meeting thosecharacteristics.9 The definition of a hazardous waste under RCRA § 1004(5)is as follows:

[A] solid waste, or combination of solid wastes, which because of itsquantity, concentration, or physical, chemical, or infectious characteristicsmay-

A. cause, or significantly contribute to an increase in mortality or anincrease in serious irreversible, or incapacitating reversible, illness; or

B. pose a substantial present or potential hazard to human health or theenvironment when improperly treated, stored, transported, ordisposed of, or otherwise managed.10

In 1978, the EPA issued proposed hazardous waste guidelines andregulations as requested by Congress. At this time, the agency was poisedto consider oil field wastes as “special wastes” under Subtitle C. However,Congress responded to these proposed regulations with the Solid WasteDisposal Act (SWDA) in 1980, which exempted oil field wastes from SubtitleC entirely until the EPA could prove these wastes were a danger to humanhealth and the environment. In 1988, the EPA's Regulatory Determinationultimately agreed with Congress’ decision to exempt oil field wastes due tothe “adequate” state and federal regulations already in place and the costsand economic impacts to the petroleum industry should it be regulated underSubtitle C.11

Despite the considerable regulatory changes by EPA regarding the regulationof oil field waste in determining that it was not hazardous enough to beregulated under Subtitle C, the 1988 Regulatory Determination provides acomprehensive list of wastes excluded from and included within the scope ofthe oil field waste exemption. A helpful article from the Director and SeniorStaff Attorney at the Railroad Commission of Texas summarizes these lists.Oil field wastes typically fall into the following categories:

1) Produced waters-mineralized waters produced with and then separatedfrom oil and gas.
2) Drilling fluids-mixtures of water, clay, barite, and other additivesused in drilling wells.
3) Associated wastes-other wastes uniquely associated with drilling andproduction operations, such as crude oil tank bottoms (e.g., oil,sediment, and water).12

In addition, the Regulatory Determination clarifies the meaning of RCRA §3001(b)(2)(A)'s exemption for “other wastes associated with the exploration,development or production of crude oil or natural gas” by stating that such“other wastes” include “rigwash, drill cuttings, and wastes created by agentsused in facilitating the extraction, development, and production of theresource, and wastes produced by removing contaminants prior to thetransportation or refining of the resource.”13

Further clarification by the EPA in 1993 provides a rule of thumb fordetermining if certain oil field wastes fall within the RCRA exemption. Itstates, “Since 1987, the terms uniquely associated and intrinsic have beenused as interchangeable synonyms in various documents in reference to oiland gas wastes qualifying for the exemption from Subtitle C regulation…Asimple rule of thumb for determining the scope of the exemption is whetherthe waste in question has come from down-hole (i.e., brought to the surfaceduring oil and gas E & P operations), or has otherwise been generated bycontact with the oil and gas production stream during the removal ofproduced water or other contaminants from the product (e.g., wasteemulsifiers, spent iron sponge). If the answer to either question is yes, the waste is most likely considered exempt.”14

In many cases, these “other” wastes contain known carcinogens such asbenzene, toluene, and xylene. The effect of the RCRA exemption is to allowthese deadly chemicals that are otherwise considered hazardous within thesame statute to permeate the earth and water sources poisoning the publicand the environment. For example, waterfowl, wildlife, and livestock may beattracted to open pits and tanks used to store and/or dispose of oil, producedwater, or separate oil from produced water. The risks posed to wildlife havebeen documented in numerous studies. In Wyoming, the U.S. Fish andWildlife Service has found deer, pronghorn, waterfowl, songbirds, and rabbitsin these open pits and tanks. Even if the animals are not killed in theseareas, the oil and chemicals can have debilitating health effects.15 Despite afew state regulations pertaining to oil and gas field wastes, it is typical forthe oil and gas industry to dispose of these wastes in earthen pits and on-siteburial.16 The potential for migration of contaminants in the soil and watersources in these areas is at the very least concerning to those who live in theoil and gas patches.

Relying on 1985 data, the EPA estimated that 70,000 oil and gas wells and800,000 active production sites generated 361 million barrels of drillingwaste, 20.9 billion barrels of produced waters, and 11 million barrels ofassociated wastes, such as workover fluids and tank bottoms.17 Considering the exponential growth of the oil and gas industry over the past 20 years, itis time regulators focus on the adequacy of existing regulations to protecthuman health and the environment from the real and potential dangers ofthe oil and gas industry’s waste.

To protect human health and the environment, oil field wastes must beregulated under the Resource Conservation and Recovery Act in orderto ensure the proper handling and disposal of hazardous andcarcinogenic wastes generated by oil and gas development.Otherwise, the petroleum industry will continue to dispose of oil fieldwaste in ways that can pollute soil, surface and groundwater.

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