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Texas Independents Join Fight Over EPA Regulation of Drilling Waste

The Texas Independent Producers & Royalty Owners Association (TIPRO) is seeking to intervene in a lawsuit brought by environmentalists who want stricter U.S. Environmental Protection Agency (EPA) regulation of oil/natural gas industry waste.

The motion was filed in federal court in Washington, DC, and seeks intervention in a case brought by the Environmental Integrity Project and other groups. Haynes and Boone LLP is representing TIPRO. Dallas Partner Suzanne Murray's motion argues that the environmental groups are trying to compel EPA to exceed its authority and that the current Texas programs to manage oil and gas waste disposal are the most robust in the country.

"The Texas program has been approved by the EPA 17 times -- an average of once every two years," Murray said. "The relief being sought here goes beyond the authority that Congress granted EPA under Subtitle D, so the court cannot order to it to act the way that the plaintiffs are requesting."

The environmental groups are asking EPA to establish rules banning companies from spreading fracking wastewater on roads or fields and requiring disposal landfills and ponds to be constructed to prevent pollutants from leaking into groundwater, according to TIPRO (see Shale DailyMay 5, 2016).

The groups argue that under the Resource Conservation and Recovery Act (RCRA), the EPA must review and revise federal regulations for oil and gas waste disposal every three years. In addition, they want the agency to develop regulations on fracking wastewater disposal in underground injection wells, a practice some have linked with earthquakes in some states, TIPRO said.

In a notice of intent to sue filed one year ago, the environmental groups allege that EPA has failed to meet its duty under RCRA "to review and, if necessary, revise at least once every three years the Subtitle D criteria regulations...for wastes associated with the exploration, development, or production of crude oil, natural gas, or geothermal energy...EPA last conducted a review of the Subtitle D regulations for oil and gas wastes in 1988, when it determined that it was necessary to revise the Subtitle D regulations to promulgate 'tailored' regulations for oil and gas wastes. Since that time, nearly nine successive three-year deadlines have passed with no further review or revision of the regulations.

"Second, EPA has failed to meet its review its guidelines for state solid waste management plans...'not less frequently than every three years, and revise as may be appropriate.' The last time EPA conducted a review and/or revision of the state plan guidelines for oil and gas wastes was in 1981, when it revised the state plan guidelines to include additional public participation provisions. Since that time, 11 successive three-year deadlines have passed with no further review or regulatory revision."

Current rules are "more than adequate," according to TIPRO Chairman Allen Gilmer. "The Texas Railroad Commission and the Texas Commission on Environmental Quality require our industry to comply with a comprehensive set of regulations that contain numerous safeguards related to the management of oil and gas waste," he said. "This extensive regulatory framework far exceeds the minimum requirements mandated under the RCRA hazardous waste program."

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