As we discussed earlier, environmental activists have asked the Environmental Protection Agency (“EPA”) to update its oil and gas drilling waste disposal rules under the Resource Conservation and Recovery Act (“RCRA”).  The groups sought to force the EPA’s hand by suing the EPA in an attempt to get a court order requiring the EPA to update its regulations.

Under RCRA, non-hazardous solid waste, which includes oil and gas production 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.  The EPA is required to review and approve state Subtitle D waste disposal programs to ensure that they meet the minimum standards.

Section 2002(b) of RCRA requires the EPA to review and, if necessary, revise at least once every three years the Subtitle D regulations. 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.”

It goes without saying, that this lawsuit does not sit well with oil and gas exploration and production companies who are subject to a host of regulations at the state level covering waste disposal. The Texas Independent Producers & Royalty Owners Association (“TIPRO”) has asked the court’s permission to intervene in the suit, arguing that any new regulations would exceed the EPA’s authority under RCRA and unnecessarily burden the industry.  In its Motion, TIPRO argued that existing state regulations already provide the necessary protections.

TIPRO argues that by reviewing the state Subtitle D program proposal, the EPA in effect reviews the underlying federal RCRA regulations in order to make a finding that a compliant state program is adequate. If during this review, the EPA found the federal program lacking, it could elect to amend the criteria. To date, after numerous state program reviews, the EPA has made no such determination.  TIPRO noted that often state waste disposal programs go well beyond the minimum requirements mandated by the EPA.

It is our opinion that RCRA’s statutory framework clearly places authority and control over oil and gas waste programs in the hands of the states. Additional federal rules would only introduce an unnecessary layer of regulation, in addition to those promulgated by states, that would dramatically increase administrative burdens on producers.

The Mineral Law Blog will continue to monitor and report on this challenge to the EPA’s oil and gas waste rule as it continues.