On Wednesday, August 26, a coalition of environmental groups threatened to sue the U.S. Environmental Protection Agency (“EPA”) if the regulations under the Resource Conservation and Recovery Act (“RCRA”) are not updated to restrict the disposal of waste associated with oil and gas production.

The coalition specifically asked the EPA to review and revise the RCRA regulations pursuant to the statutory mandate found in sections 2002(b) and 4002(b) of RCRA. Under these sections, the EPA must review and revise RCRA regulations and guidelines “no less frequently than every three years.” (42 U.S.C. §§ 6912(b), 6942(b).)

RCRA was enacted in 1976 to govern the disposal of solid waste. Solid waste is broken down into (1) hazardous solid waste and (2) non-hazardous solid waste. The most notable provisions of RCRA are included in Subtitle C, which directs the EPA to establish controls on the management of hazardous wastes from their point of generation, through their transportation and treatment, storage and/or disposal.

Non-hazardous solid waste is governed by Subtitle D. Subtitle D focuses on state and local governments as the primary regulating entities for the management of non-hazardous solid waste. It establishes minimum federal technical standards and guidelines for state solid waste regulations.

In 1980, Congress amended RCRA to exclude certain wastes associated with the exploration and production of oil and gas from the definition of hazardous waste, thus removing this waste from Federal Regulation under Subtitle C. (42 U.S.C. § 6921(b)(2)(A).)

While waste associated with oil and gas production is not covered under Subtitle C of RCRA, it is often subject to more stringent or broader state regulations and other federal regulations. For example, oil and gas exploration and production wastes are subject to regulation under the Clean Air Act, Clean Water Act, Safe Drinking Water Act, and Oil Pollution Act of 1990.

The activists have asked the EPA to “revise its Subtitle D regulations and set clear requirements” to govern the storage and disposal of oil and gas waste amid a “patchwork of [state] requirements with varying protections.”

If EPA doesn’t act to update the RCRA solid waste rules for oil and gas within 60 days, the environmental groups will ask a court to set a deadline. A similar lawsuit from activists in 2012 resulted in a court-ordered deadline for the EPA to update its RCRA regulations relating to coal ash disposal.