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North Dakota Eyeing RCRA Ruling, Oil Rail Oversight, Pipeline Protesters

North Dakota is concerned about the “strict timeline” regarding a settlement between environmental groups and the U.S. Environmental Protection Agency (EPA) over oil and natural gas waste handling.

In late December, the U.S. District Court for theDistrict of Columbia granted the joint motion of the EPAand plaintiff environmental organizations for a consent decree to settle litigation over EPA's alleged failure to update its rules for managing oil and gas drilling waste under the federal Resource Conservation and Recovery Act (RCRA). The consent decree was issued in Environmental Integrity Project v. McCarthy, No. 1:16-CV-00842-JDB.

The settlement requires the incoming Trump administration to propose by March 15, 2019, a rulemaking to revise Subtitle D criteria regulations pertaining to oil and gas wastes at 40 Code of Federal Regulations Part 257, or sign a determination that revising the rules is not necessary.

"This is a classic sue-and-settle situation, and we're not concerned about the review of the regulations, but we are concerned about the strict timeline for that review and the fact that the rule proposal goes beyond the original act and authorization that Congress gave EPA," said North Dakota's Lynn Helms, director of the Department of Mineral Resources.

Separately, he said North Dakota is closely watching an interim final rule issued last month by the Pipeline and Hazardous Materials Safety Administration (PHMSA) that could negate the state's standard for oil conditioning transported by rail.

PHMSA “is looking into completely overturning North Dakota's oil conditioning regulations and imposing a regulation of 9 psi vapor pressure on crude oil-by-rail," said Helms. The state Industrial Commission may want to weigh in, he noted. On Tuesday commissioners took no formal action but asked staff to prepare comments on the rule.

As it stands, the PHMSA proposal could be "a major interference” with North Dakota’s oil conditioning rule, which Helms said “has been very, very successful.”

Meanwhile, North Dakota’s Republican-dominated legislature already has several bills inspired by protests against the four-state, 1,200-mile Dakota Access oil pipeline project, which was stalled at the eleventh hour by the U.S. Army Corps of Engineers.

One bill would not allow protesters to wear gas masks. Another would exempt drivers from liability if they unintentionally injure or kill a pedestrian/protester obstructing traffic. A third proposal would allow the state attorney general to sue the federal government to recover added costs of policing protests.

To date, North Dakota officials have calculated the state has spent more than $22 million on responding to the many weeks of Dakota Access protests in the south-central part of the state near the Standing Rock Sioux Tribe's reservation.

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