O&G EXEMPTIONS


FEDERAL EXEMPTIONS:

Note: states might impose some regs, with reference to federal standards



CERCLA

The Comprehensive Environmental Response, Compensation, and Liability Act (CERCLA), a 1980 law commonly known as Superfund, authorizes EPA to respond to releases, or threatened releases, of hazardous substances that may endanger public health, welfare, or the environment. CERCLA also enables EPA to force parties responsible for environmental contamination to clean it up or to reimburse the Superfund for response or remediation costs incurred by EPA. The Superfund Amendments and Reauthorization Act (SARA) of 1986 revised various sections of CERCLA, extended the taxing authority for the Superfund, and created a free-standing law, SARA Title III, also known as the Emergency Planning and Community Right-to-Know Act (EPCRA).

42 USC chapter 103  SUBCHAPTER I—HAZARDOUS SUBSTANCES RELEASES, LIABILITY, COMPENSATION 9601 – Definitions  (page 2185)

(14) The term ‘‘hazardous substance’’ means (A) any substance designated pursuant to section 311(b)(2)(A) of the Federal Water Pollution Control Act [33 U.S.C. 1321(b)(2)(A)], (B) any element, compound, mixture, solution, or substance designated pursuant to section 9602 of this title, (C) any hazardous waste having the characteristics identified under or listed pursuant to section 3001 of the Solid Waste Disposal Act [42 U.S.C. 6921] (but not including any waste the regulation of which under the Solid Waste Disposal Act [42 U.S.C. 6901 et seq.] has been suspended by Act of Congress), (D) any toxic pollutant listed under section 307(a) of the Federal Water Pollution Control Act [33 U.S.C. 1317(a)], (E) any hazardous air pollutant listed under section 112 of the Clean Air Act [42 U.S.C. 7412], and (F) any imminently hazardous chemical substance or mixture with respect to which the Administrator has taken action pursuant to section 7 of the Toxic Substances Control Act [15 U.S.C. 2606]. The term does not include petroleum, including crude oil or any fraction thereof which is not otherwise specifically listed or designated as a hazardous substance under subparagraphs (A) through (F) of this paragraph, and the term does not include natural gas, natural gas liquids, liquefied natural gas, or synthetic gas usable for fuel (or mixtures of natural gas and such synthetic gas).



RCRA

The Resource Conservation and Recovery Act (RCRA) Subtitle C establishes a federal program to manage hazardous wastes for its entire existence to ensure that hazardous waste is handled in a manner that protects human health and the environment. Therefore, EPA has established regulations and procedures for the generation, transportation, storage and disposal of hazardous waste handlers. EPA also has established technical standards for the design and safe operation of treatment, storage and disposal facilities to minimize the release of hazardous waste into the environment. These regulations serve as the basis for developing and issuing permits.

See pp 20,21 of RCRA:  Subtitle C, Sec 3001 (b)(2)(A) & (B)

21 SOLID WASTE DISPOSAL ACT Sec. 3001
(2)(A) Notwithstanding the provisions of paragraph (1) of this subsection, drilling fluids, produced waters, and other wastes associated with the exploration, development, or production of crude oil or natural gas or geothermal energy shall be subject only to existing State or Federal regulatory programs in lieu of subtitle C until at least 24 months after the date of enactment of the Solid Waste Disposal Act Amendments of 1980 and after promulgation of the regulations in accordance with subparagraphs (B) and (C) of this paragraph. It is the sense of the Congress that such State or Federal programs should include, for waste disposal sites which are to be closed, provisions requiring at least the following:

(i) The identification through surveying, platting, or other measures, together with recordation of such information on the public record, so as to assure that the location where such wastes are disposed of can be located in the future; except however, that no such surveying, platting, or other measure identifying the location of a disposal site for drilling fluids and associated wastes shall be required if the distance from the disposal site to the surveyed or platted location to the associated well is less than two hundred lineal feet; and
(ii) A chemical and physical analysis of a produced water and a composition of a drilling fluid suspected to contain a hazardous material, with such information to be acquired prior to closure and to be placed on the public record.
(B) Not later than six months after completion and submission of the study required by section 8002(m) of this Act, the Administrator shall, after public hearings and opportunity for comment, determine either to promulgate regulations under this subtitle for drilling fluids, produced waters, and other wastes associated with the exploration, development, or production of crude oil or natural gas or geothermal energy or that such regulations are unwarranted. The Administrator shall publish his decision in the Federal Register accompanied by an explanation and justification of the reasons for it. In making the decision under this paragraph, the Administrator shall utilize the information developed or accumulated pursuant to the study required under section 8002(m).

Here is an explanation from “The Oil and Gas Industry’s Exclusions and Exemptions under Major Environmental Statutes” from the Oil & Gas Accountability Project
http://www.earthworksaction.org/files/publications/PetroleumExemptions1c.pdf?pubs/PetroleumExemptions1c.pdf

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

Despite the considerable regulatory changes by EPA regarding the regulation of oil field waste in determining that it was not hazardous enough to be regulated under Subtitle C, the 1988 Regulatory Determination provides a comprehensive list of wastes excluded from and included within the scope of the oil field waste exemption. A helpful article from the Director and Senior Staff 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 separated from oil and gas.
2) Drilling fluids-mixtures of water, clay, barite, and other additives used in drilling wells.
3) Associated wastes-other wastes uniquely associated with drilling and production operations, such as crude oil tank bottoms (e.g., oil, sediment, and water).
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 agents used in facilitating the extraction, development, and production of the resource, and wastes produced by removing contaminants prior to the transportation or refining of the resource.”
Further clarification by the EPA in 1993 provides a rule of thumb for determining if certain oil field wastes fall within the RCRA exemption. It states,
“Since 1987, the terms uniquely associated and intrinsic have been used as interchangeable synonyms in various documents in reference to oil and gas wastes qualifying for the exemption from Subtitle C regulation…A simple rule of thumb for determining the scope of the exemption is whether the waste in question has come from down-hole (i.e., brought to the surface during oil and gas E & P operations), or has otherwise been generated by contact with the oil and gas production stream during the removal of produced water or other contaminants from the product (e.g., waste emulsifiers, spent iron sponge). If the answer to either question is yes, the waste is most likely considered exempt.”


SDWA

The Safe Drinking Water Act (SDWA) is the main federal law that ensures the quality of Americans' drinking water.Under SDWA, EPA sets standards for drinking water quality and oversees the states, localities, and water suppliers who implement those standards.

SDWA was originally passed by Congress in 1974 to protect public health by regulating the nation's public drinking water supply. The law was amended in 1986 and 1996 and requires many actions to protect drinking water and its sources: rivers, lakes, reservoirs, springs, and ground water wells. (SDWA does not regulate private wells which serve fewer than 25 individuals.)

Explanation from “The Oil and Gas Industry’s Exclusions and Exemptions under Major Environmental Statutes” from the Oil & Gas Accountability Project
http://www.earthworksaction.org/files/publications/PetroleumExemptions1c.pdf?pubs/PetroleumExemptions1c.pdf

The 2005 amendment managed to effectively dilute the protections provided to the public by the SDWA in three ways. First, hydraulic fracturing (fracking) operations were completely exempted from regulation under the SDWA.

Here is the relevant language from the 2005 Energy Policy Act:

SEC. 322. HYDRAULIC FRACTURING.
Paragraph (1) of section 1421(d) of the Safe Drinking Water Act (42 U.S.C. 300h(d)) is amended to read as follows:
(1) UNDERGROUND INJECTION.—The term ‘underground injection’—
(A) means the subsurface emplacement of fluids by well injection; and
(B) excludes—
(i) the underground injection of natural gas for purposes of storage; and
(ii) the underground injection of fluids or propping agents (other than diesel fuels) pursuant to hydraulic fracturing operations related to oil, gas, or geothermal production activities.


Second, the Energy Policy Act asked for the voluntary discontinuance of diesel fuel use in fracking operations in lieu of seizing the opportunity to ban diesel fuel use altogether.

[there is no explicit language; the voluntary discontinuance is implicit in the fact that it is not prohibited altogether]

Lastly, underground injection in oil and gas operations was defined so as to alleviate the EPA from regulating threats to drinking water from fracking fluids unless diesel fuel additives are used [see SEC 322(b)(ii) above]; this remains a discretionary regulation of diesel fuel additives on the part of the EPA. The last prong of the exemption simply provides more legislative support for EPA’s decision to not regulate fracking operations even if diesel fuels are being injected into underground drinking water sources.
[have not yet found the reference for this]


CWA

The objective of the Federal Water Pollution Control Act, commonly referred to as the Clean Water Act (CWA), is to restore and maintain the chemical, physical, and biological integrity of the nation's waters by preventing point and nonpoint pollution sources, providing assistance to publicly owned treatment works for the improvement of  wastewater treatment, and maintaining the integrity of wetlands.

Summary of the Clean Water Act

Explanation from from “The Oil and Gas Industry’s Exclusions and Exemptions under Major Environmental Statutes” from the Oil & Gas Accountability Project
http://www.earthworksaction.org/files/publications/PetroleumExemptions1c.pdf?pubs/PetroleumExemptions1c.pdf

Despite the EPA’s efforts over the past 15 years to maintain these stormwater regulations, the 2005 Energy Policy Act amended the CWA to provide that sediment is no longer considered a pollutant. The broadened exemption provided in the 2005 Energy Policy Act applies to all oil and gas field construction activities and operations, including those necessary to prepare a site for drilling and for the movement and placement of drilling equipment.

33 USC Chapter 26 Water Pollution Prevention and Control, Subchapter V, section 1362
(6) The term ‘‘pollutant’’ means dredged spoil, solid waste, incinerator residue, sewage, garbage, sewage sludge, munitions, chemical wastes, biological materials, radioactive materials, heat, wrecked or discarded equipment, rock, sand, cellar dirt and industrial, municipal, and agricultural waste discharged into water. This term does not mean

(A) ‘‘sewage from vessels or a discharge incidental to the normal operation of a vessel of the Armed Forces’’ within the meaning of section 1322 of this title; or
(B) water, gas, or other material which is injected into a well to facilitate production of oil or gas, or water derived in association with oil or gas production and disposed of in a well, if the well used either to facilitate production or for disposal purposes is approved by authority of the State in which the well is located, and if such State determines that such injection or disposal will not result in the degradation of ground or surface water resources.

[Leaves definition up to the state.]



CAA

EPA projects that the Clean Air Act Amendments will prevent over 230,000 early deaths in 2020. Learn more about the Benefits and Costs of the Clean Air Act. EPA is celebrating the 40th anniversary of the Clean Air Act. Learn more about how this landmark law has protected America's health and environment.

The Clean Air Act is the law that defines EPA's responsibilities for protecting and improving the nation's air quality and the stratospheric ozone layer. The last major change in the law, the Clean Air Act Amendments of 1990, was enacted by Congress in 1990. Legislation passed since then has made several minor changes.

CAA – 42 USC §7401 et seq
Treated as non-point-source when they should be treated as point-source.
Page 1737-8 of §7412:

(4) Oil and gas wells; pipeline facilities
(A) Notwithstanding the provisions of subsection (a) of this section, emissions from any
oil or gas exploration or production well (with its associated equipment) and emissions from  any pipeline compressor or pump station shall not be aggregated with emissions from other similar units, whether or not such units are in a contiguous area or under common control, to determine whether such units or stations are major sources, and in the case of any oil or gas exploration or production well (with its associated equipment), such emissions shall not be aggregated for any purpose under this section.

(B) The Administrator shall not list oil and gas production wells (with its associated equipment) as an area source category under subsection (c) of this section, except that the Administrator may establish an area source category for oil and gas production wells located in any metropolitan statistical area or consolidated metropolitan statistical area with a population in excess of 1 million, if the Administrator determines that emissions of hazardous air pollutants from such wells present more than a negligible risk of adverse effects to public health.

Explanation from from “The Oil and Gas Industry’s Exclusions and Exemptions under Major Environmental Statutes” from the Oil & Gas Accountability Project
http://www.earthworksaction.org/files/publications/PetroleumExemptions1c.pdf?pubs/PetroleumExemptions1c.pdf

The CAA program to control major sources of pollutants has established limits called the National Emission Standards for Hazardous Air Pollutants n(NEHAPS). The standards must be met by installing the Maximum Achievable Control Technology (MACT) for each source. 39 Smaller sources of pollutants that are under common control and are located in close proximity to perform similar functions are considered as one source of emissions. This aggregation is intended to regulate smaller sources that may actually be as harmful as larger sources due to the concentration of emissions.

The CAA provides that oil and gas wells, and in some instances pipeline compressors and pump stations, shall not be aggregated together to determine if they are subject to the provisions that establish NEHAPS and thus require MACT. This exemption to the aggregation requirement allows the oil and gas industry to pollute the air while being largely unregulated
under the CAA.



NEPA

In 1969, NEPA, or the National Environmental Policy Act, was one of the first laws ever written that establishes a broad national framework for protecting our environment. NEPA's basic policy is to assure that all branches of government give proper consideration to the environment prior to undertaking any major federal action that could significantly affect the environment.

See Section 390 NEPA Review of 2005 Energy Policy Act (p154 of pdf).
SEC. 390. NEPA REVIEW.

(a) NEPA REVIEW.—Action by the Secretary of the Interior in managing the public lands, or the Secretary of Agriculture in managing National Forest System Lands, with respect to any of the activities described in subsection (b) shall be subject to a rebuttable presumption that the use of a categorical exclusion under 42 USC 15942. 33 USC 2736. 33 USC 2731. 43 USC 1337 note. 43 USC 1337 note. the National Environmental Policy Act of 1969 (NEPA) would apply if the activity is conducted pursuant to the Mineral Leasing Act for the purpose of exploration or development of oil or gas.
(b) ACTIVITIES DESCRIBED.—The activities referred to in subsection (a) are the following:

(1) Individual surface disturbances of less than 5 acres so long as the total surface disturbance on the lease is not greater than 150 acres and site-specific analysis in a document prepared pursuant to NEPA has been previously completed.

(2) Drilling an oil or gas well at a location or well pad site at which drilling has occurred previously within 5 years prior to the date of spudding the well.
(3) Drilling an oil or gas well within a developed field for which an approved land use plan or any environmental document prepared pursuant to NEPA analyzed such drilling as a reasonably foreseeable activity, so long as such plan or document was approved within 5 years prior to the date of spudding the well.
(4) Placement of a pipeline in an approved right-of-way corridor, so long as the corridor was approved within 5 years prior to the date of placement of the pipeline.
(5) Maintenance of a minor activity, other than any construction or major renovation or a building or facility.

Explanation from from “The Oil and Gas Industry’s Exclusions and Exemptions under Major Environmental Statutes” from the Oil & Gas Accountability Project
http://www.earthworksaction.org/files/publications/PetroleumExemptions1c.pdf?pubs/PetroleumExemptions1c.pdf

The Energy Policy Act of 2005 created a “rebuttable presumption” that several oil and gas related activities ought to be analyzed and processed by the Interior and Agricultural Departments under a less stringent process known as a “categorical exclusion” (CE). The CE is considerably less comprehensive than the traditional environmental assessment (EA) or the environmental impact statement (EIS) and does not allow for any public comment.

Under the “rebuttable presumption,” section 390 effectively shifts the burden from the agency to the public to prove that an activity requires further analysis.

EPCRA

The Emergency Planning and Community Right-to-Know Act (EPCRA) of 1986 (EPCRA) was created to help communities plan for emergencies involving hazardous substances. The Act establishes requirements for federal, state and local governments, Indian tribes, and industry regarding emergency planning and "Community Right-to-Know" reporting on hazardous and toxic chemicals. The Community Right-to-Know provisions help increase the public's knowledge and access to information on chemicals at individual facilities, their uses, and releases into the environment. States and communities, working with facilities, can use the information to improve chemical safety and protect public health and the environment.

Toxic Release Inventory under Community right to know (EPCRA):

Explanation from from “The Oil and Gas Industry’s Exclusions and Exemptions under Major Environmental Statutes” from the Oil & Gas Accountability Project
http://www.earthworksaction.org/files/publications/PetroleumExemptions1c.pdf?pubs/PetroleumExemptions1c.pdf


EPA has chosen to abdicate its responsibility under the EPCRA to inform the public about these toxic releases by exempting the oil and gas industry from reporting under section 313.

1 comment:

  1. There ARE people who support the Clean Water Act Exemptions of O&G Industry and have testified in Federal Courts to that belief. They should simply prove their beliefs Produced Water ALREADY in the water table around O&G sites IS safe by example.
    V.P. Dick Cheney and those who share this belief should have to drink, bathe and cook with the ample stock of said water. Simple as that. If they survive a year, they might have a different opinion.

    ReplyDelete

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