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New EPA reports on fracking waste don't go far enough

Amy Mall

Posted April 4, 2014

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U.S. EPA just released two new reports on the waste generated by oil and gas exploration and production, including fracking.

NRDC has been concerned for a long time about this dangerous waste, which is exempt from federal hazardous waste safeguards (more details here). We've been calling on Congress to close this gaping loophole in federal law for years, and we've asked EPA to do the same. We've documented cases around the country where this dangerous waste has been released into the environment and endangered drinking water, polluted air, and harmed human health.

Because of the loophole in current law, any waste from oil and gas operations--regardless of how toxic it may be--is exempt from federal hazardous waste laws. It is outrageous. Particularly for people who have this waste stored or dumped in their backyards.

The first EPA report is a review of state regulations in 26 states. EPA found that "State regulations vary greatly in scope and detail." We would definitely agree with that.

EPA determined that states commonly have "some liner requirements for pits or impoundments, secondary containment requirements for tanks, setback requirements for solid waste management facilities from critical infrastructure or inhabited development, minimum freeboard requirements for fluid levels in pits, impoundments, and tanks, various inspection, operation, and maintenance requirements, permitting of solid waste management facilities requirements, and closure and reclamation requirements."  The emphasis on "some" was added by me. Not all states in the review have each of these. And, even the rules they do have may not be particularly strong. The EPA review provides the citation for each state rule, so a citizen can look up their state laws if the state rules are available on line.

The EPA also found that it was not typical for states to have requirements for groundwater monitoring, leachate collection, air monitoring, or waste characterization. But they should have all those things. 

The second EPA report is a review of more than 80 publicly available sources of voluntary management practices for oil and gas waste pits, tanks, and land application/disposal. EPA says that it did not evaluate the adequacy or protectiveness of any of the voluntary management practices summarized in this document. But, at least EPA does say that there is a lot of existing information out there.

My main take-away from these two documents is that the document with the voluntary practices is a lot longer than the document with the state-mandated practices. Some of the voluntary practices are recommended by industry sources, so why shouldn't they be required?

EPA concludes by saying that it agrees with the recommendation of the Shale Gas Subcommittee of the Secretary of Energy’s Advisory Board (SEAB) that the federal government should encourage the development of additional and improved "best practices." But, development of practices is not enough. If they're not required, they won't be used everywhere they are needed to protect clean water, clean air, human health, and wildlife.

While these documents provide valuable information for the public, by pointing out so many "voluntary" practices, they also point to the failures of our regulators to protect our environment from toxic oil and gas waste.

Last year Congressman Matt Cartwright introduced legislation that would close the loophole in our federal law for toxic oil and gas waste. H.R. 2825, the Closing Loopholes and Ending Arbitrary and Needless Evasion of Regulations Act of 2013, is commonly known as the CLEANER Act. It already has 64 cosponsors, but it needs more. You can ask your Member of Congress to sponsor this bill by taking action on NRDC's website.

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Michael BerndtsonApr 5 2014 07:55 AM

Your post gets to the heart of the matter. That is the waste stream(s). Not just oil and gas, but electronic waste and really anything derived during production and consumption that isn't useful to us. Or impacts the bottom line.

Technology isn't the issue. Engineering isn't the issue. It's policy and it's human nature. Maybe we're hard wired to ignore waste. Or move the village to the next hollow. Or sweep it under the rug. It's not just humans. Dogs even seem to realize it probably wasn't the greatest idea to leave a steaming one on the carpet. If you or others at NRDC can figure this issue out - I'll file a nomination for a Macarthur genius grant. Assuming that's how it works.

For some reason, not necessarily supported by facts, I think oil and gas looks to software (information and communication technology) as a model. For instance, Microsoft, Amazon, Google, Facebook and of course others, produce a product/service that drives consumption of electronics and computers. I don't believe these companies are necessarily burdened all that much with waste management, either upfront or at the back end. So the stuff piles up. Some get's recycled. The state eventually becomes responsible, it seems, by default. As we read in various Wall Street Journal Op. Eds. lately, very wealthy people feel put upon and are sensitive to other very wealthy people's successes. Something to the effect of, "why should we, if they don't have to." (I think I just defined libertarianism.)

Oil and gas and especially the production side, seem to provide a good that isn't that dissimilar to software. Get the oil and gas out for the end user to do whatever they do to drive the economy. Wall Street and investors have a hand in this as well. Waste management (the action) has a cost and commodities have a price.

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