Environmental Groups File Suit to Compel EPA to Review and Revise Oil and Gas Waste Regulations

Originally published by Lesley Foxhall Pietras.

On May 4, 2016, environmental groups sued the U.S. Environmental Protection Agency (EPA), seeking to compel EPA to “fulfill long-delayed nondiscretionary duties” under the Resource Conservation and Recovery Act (RCRA) by issuing revised regulations governing oil and gas wastes.  The complaint alleges that EPA’s regulations “are outdated, contain generic provisions that do not specifically address the modern oil and gas industry, and fail to adequately protect against potential harm to human health and the environment resulting from oil and gas wastes.”  According to the complaint, the harm allegedly includes the “potential carcinogenic effects of hydraulic fracturing flowback water” and the “increasing earthquakes” allegedly linked to injection wells used for oil and gas wastewater disposal.

The suit relies on RCRA Sections 2002(b) and 4002(b) (42 U.S.C. §§ 6912(b) and 6942(b)), which require EPA to review and, as necessary, revise RCRA regulations and guidelines for state solid waste management plans at least every three years.  The complaint alleges that EPA last conducted a review of its RCRA Subtitle D regulations for oil and gas wastes on July 6, 1988, “when it determined that it was necessary to revise the general Subtitle D regulations to promulgate ‘tailored’ regulations for oil and gas wastes.”  According to the complaint, EPA “has not completed these necessary revisions,” nor has it reviewed the Subtitle D regulations for oil and gas wastes since that time.  The complaint also alleges that EPA last reviewed its guidelines for state solid waste management plans in 1981, and since that time, “eleven successive three-year deadlines have passed with no further review or revision.”

The lawsuit is styled as Environmental Integrity Project, et al. v. McCarthy, Case No. 1:16-cv-00842-JDB, and was filed in the U.S. District Court for the District of Columbia.  The oil and gas industry will need to monitor this suit.  A similar lawsuit filed in 2012 in the same court resulted in a court opinion requiring EPA to review its RCRA Subtitle D regulations concerning coal ash.  See Appalachian Voices v. McCarthy, 989 F. Supp. 2d 30, 53-56 (D. D.C. 2013).  In that case, the parties eventually settled, and EPA agreed in a consent decree to finalize RCRA Subtitle D coal ash regulations by a certain date.

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