Oil and Gas Industry exempted from most major environmental legislation

From the 1960s to the 1990s the United States had a national conversation about how, as we expanded in population and industrialization, we would make sure that our natural resources were protected. This resulted in a series of landmark laws, passed under Republican and Democratic administrations, that protected our land, air, and water.

That’s the good news. The bad news is that, ever since, the oil and gas industry has been successful in carving out exemptions that took the teeth out of these laws, and left communities vulnerable to polluters. This should not be a surprise to those who follow the impact of oil and gas industry contributions on federal legislation, but it is disturbing nonetheless.

Gutting these acts in favor of oil and gas polluters puts the burden squarely on local communities if they are going to protect themselves from companies that have no incentive to watch out for their local resources. This is not strictly an environmental issue — it’s a matter of protecting a way of life.

This post lays out how this has happened for several major pieces of federal legislation. Later this week I’ll be looking at the specific impacts of these carveouts.

Clean Air Act (CAA), 1970
The Clean Air Act (CAA), adopted in 1970, is the comprehensive federal law that regulates air emissions from area, stationary, and mobile pollution sources. The CAA established limits for major pollution sources called the National Emission Standards for Hazardous Air Pollutants (NEHAPS) . NEHAPS must be met by installing the Maximum Achievable Control Technology (MACT) for each source. I will have a post later this week on the specific impact this is having in Wyoming.

Oil and Gas Exemption:
While CAA allows for the aggregation of multiple wells operated in the same area by a single operator, CAA exempts oil and gas wells, and in some instances pipeline compressors and pump stations, from aggregation. This exemption allows the oil and gas industry — which often operates many small facilities in one area — to pollute while largely unregulated by the CAA.

In addition, in 1991 hydrogen sulfide was removed from the list of Hazardous Air Pollutants under the CAA. This elimination has remained despite a 1993 EPA study, Hydrogen Sulfide Air Emissions Associated with the Extraction of Oil and Natural Gas, which clearly concludes that accidental releases of hydrogen sulfide during oil and gas development are a serious air quality concern and pose a great risk to public health. Common symptoms of exposure to low levels of hydrogen sulfide can include headache, skin complications, respiratory problems and system damage, confusion, verbal impairment, and memory loss.

National Environmental Policy Act (NEPA), 1970
NEPA (NEPA) establishes the broad national framework for protecting our environment. NEPA s ensures the federal government gives proper consideration to the environment before undertaking any major federal action (including involvement in industrial projects) that significantly affects the environment.

Oil and Gas Exemption:
The Energy Policy Act of 2005 stripped NEPA’s strong requirements for public involvement and environmental review when it comes to several oil and gas related activities. It stipulated that they should be analyzed and processed by the Interior and Agricultural Departments under a much narrower and weaker process known as a Environmental Assessment (EA) or Environmental Impact Statement (EIS) required under NEPA. In addition, a CE does not allow for any public comment. In 2006 and 2007, the BLM granted this exemption to about 25 percent of all oil and gas wells approved on public land in the West.

Federal Water Pollution Control Act (FWPCA), 1972
The FWPCA, commonly known as the Clean Water Act (CWA), establishes the basic structure for regulating discharges of pollutants into the waters of the United States. The CWA made it unlawful to discharge any pollutant from a point source into navigable waters, unless a permit was obtained.

Oil and Gas Exemption:
In 1987, Congress amended the CWA to require EPA to develop a permitting program for stormwater runoff but exempted oil and gas production.

The 2005 Energy Policy Act also amended the CWA to redefine sediment as a nonpollutant. This redefinition broadened the existing exemption for stormwater discharges to oil and gas construction. These exemptions leave streams and rivers in high oil and gas areas unprotected from sediment run-off caused by the construction and operation of well pads, pipelines, drill rigs, and other infrastructure.

Safe Drinking Water Act (SDWA), 1974
The SDWA was established to protect America’s drinking water. It authorizes the EPA to set national health-based standards for drinking water to protect against both naturally-occurring and man-made contaminants. US EPA, states, and water systems then work together to make sure that these standards are met.

Oil and Gas Exemption:
The Energy Policy Act of 2005 exempted hydraulic fracturing from SDWA oversight,  leaving drinking water sources in the 34 oil and gas producing states unprotected from the toxic chemicals used during fracking. Also known as the Halliburton Loophole, this law turns over control of water quality to the oil and gas companies, which do not have to tell us what chemicals they use in the fracking process.

Resource Conservation and Recovery Act (RCRA), 1976
RCRA is the principal federal law that governs the disposal of solid and hazardous wastes. The law takes a cradle to grave approach to ensure that wastes are handled properly from the point of creation to transport to disposal.

Oil and Gas Exemption
In 1980, Congress exempted oil field wastes (which includes waste from natural gas production) from RCRA until EPA proved they were a danger to human health and the environment. Rather than make this determination, EPA eventually ceded authority to regulate these wastes to the states.This exemption leaves produced water, drilling fluids, and hydraulic fracturing fluids from oil and gas production unregulated under the nation’s premier hazardous waste law. This allows unsafe handling of toxic substances, including their conventional transport on roads and treatment in municipal rather than specialized facilities.

Superfund, 1980
The Comprehensive Environmental Response, Compensation, and Liability Act (CERCLA), commonly known as the Superfund law, establishes liability for a spill or release of a hazardous substance.In addition, Superfund allows Potentially Responsible Parties to be held liable for clean-up costs for a release or threatened release of a hazardous substance.The list of hazardous substances includes benzene, toluene, ethylbenzene, and xylene (Btex), chemicals found in crude oil and petroleum.

Oil and Gas Exemption:
CERCLA exempts these substances from liability requirements if they are found in crude oil and petroleum, which are also used in natural gas production. The definition of hazardous substance also excludes natural gas, natural gas liquids, liquefied natural gas, and synthetic gas usable for fuel.This exemption creates no incentive for oil and gas companies to clean up hazardous waste, or to minimize leaks and spills.

The Toxic Release Inventory of EPCRA (1986)
The Toxic Release Inventory (TRI) was created by section 313 of the Emergency Planning and Community Right-to-Know Act (EPCRA) of 1986. It requires most industries to report significant of toxic substances to the EPA, which then aggregates and disseminates the information to the public.

The information on chemical use and release includes point and fugitive onsite air releases, water releases, on and off-site land releases, underground injection, transfers (for definitions, see here) to a Publicly Owned Treatment Works (POTW) or waste management facility (including the name and address of the facility), and the use of specific on-site waste treatment and management practices.

Oil and Gas Exemption:
Oil and gas facilities are not required to report to the TRI. This exemption leaves communities in oil and gas producing areas in the dark about what chemicals are being released — making it difficult to attribute responsibility and seek remedy for resulting health and environmental problems.

You can read more here:
Earthworks Action
New York Times
The Oregonian

About davidjkatz

The Moses family has lived on the Stillwater River since 1974, when George and Lucile Moses retired and moved to the Beehive from the Twin Cities. They’re gone now, but their four daughters (pictured at left, on the Beehive) and their families continue to spend time there, and have grown to love the area. This blog started as an email chain to keep the family informed about the threat of increased fracking activity in the area, but the desire to inform and get involved led to the creation of this blog.
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16 Responses to Oil and Gas Industry exempted from most major environmental legislation

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