Groups File Notice of Intent to Sue EPA Over Dangerous Drilling and Fracking Waste

A coalition of environmental organizations filed a legal notice with the U.S. Environmental Protection Agency today demanding regulations to stop oil and gas companies from dumping drilling and fracking waste in ways that threaten public health and the environment.

The groups filing today's notice letter are the Environmental Integrity Project, Natural Resources Defense Council, Earthworks, Responsible Drilling Alliance, San Juan Citizens Alliance, West Virginia Surface Owners Rights Organization, and the Center for Health, Environment and Justice. The groups are calling on EPA to comply with its long-overdue obligations to update waste disposal rules that should have been revised more than a quarter century ago.

"We're asking that EPA finally do what it found to be necessary back in 1988: update the regulations for oil and gas wastes," said Adam Kron, attorney at the Environmental Integrity Project. "The oil and gas industry has grown rapidly since then, and yet EPA has repeatedly shirked its duties for nearly three decades. The public deserves better protection than this."

For example, EPA should institute stricter controls for underground injection wells, which accept two billion gallons of oil and gas wastewater every day and have been linked to numerous earthquakes in Ohio, Oklahoma, and Texas. EPA should ban the practice of spreading fracking wastewater onto roads or fields, which allows toxic pollutants to run off and contaminate streams. And EPA should require landfills and ponds that receive drilling and fracking waste to be built with adequate liners and structural integrity to prevent spills and leaks into groundwater and streams.

"Oil and gas waste is extremely dangerous--yet the EPA admitted decades ago that federal rules are inadequate to protect the public," said Matthew McFeeley, attorney at NRDC. "The scary truth is that right now this waste--complete with carcinogens and radioactive material--is being dumped irresponsibly or disposed of like everyday household garbage. Toxic waste should not be sent to run-of-the-mill landfills, sprayed on our roads and fields, or stored in open air pits."

The groups notified EPA that they will file a lawsuit in 60 days unless the agency complies with its duty under the Resource Conservation and Recovery Act (RCRA) to review and revise the federal regulations governing how oil and gas waste must be handled and disposed. RCRA requires that EPA review the regulations at least every three years and, if necessary, revise them. The agency determined that such revisions of the regulations were necessary to address specific concerns with oil and gas wastes more than 25 years ago, yet has failed to meet its legal responsibility to act.

Over the last decade, the oil and gas industry's fracking-based boom has produced a vast amount of solid and liquid waste. Each well produces millions of gallons of wastewater and hundreds of tons of drill cuttings, which contain contaminants that pose serious risks to human health. These include known carcinogens such as benzene, toxic metals such as mercury, and radioactive materials. However, the current RCRA rules that govern oil and gas wastes are too weak because they are the same rules that apply to all "non-hazardous" wastes, including household trash.

As a result, oil and gas companies are handling, storing, and disposing of these wastes in a number of troublesome ways. These include: spraying fracking waste fluids onto roads and land near where people live and work; disposing of billions of gallons of oil and gas wastewater in underground injection wells; sending the drill cuttings and fracking sands to landfills not designed to handle toxic or radioactive materials; and storing and disposing of wastewater in pits and ponds, which often leak. Across the U.S., there are numerous instances of wastes leaking out of ponds and pits into nearby streams and the groundwater beneath, and operators often "close" the pits by simply burying the wastes on site.

Aaron Mintzes, Policy Advocate for Earthworks, said: "While it's sadly common for states to fail to enforce their own oil and gas oversight laws, it is especially shameful that we should have to sue the Environmental Protection Agency, the only federal agency solely dedicated to protecting the environment and human health, to force EPA to fulfill its legal obligations to protect us from fracking pollution."

The following are some examples of problems caused by the improper disposal and handling of fracking and drilling waste:

• Ohio: Underground injection wells in Ohio accepted 22 million barrels of oil and gas wastewater for disposal in 2014, nearly four times the amount in 2009. This has resulted in scores of earthquakes in the well-dense Youngstown area, with one well alone linked to 77 earthquakes. The Ohio Oil and Gas Commission recently noted that regulations "have not kept pace" with the problem, and that (to an extent) both the state and industry are "working with their eyes closed."
• Pennsylvania: In May 2012, a six-million-gallon industrial pond holding fracking wastewater in Tioga County leaked pollutants, including arsenic and strontium, through holes in its liner into groundwater and a nearby trout stream.
• West Virginia: Oil and gas wastewater dumped or spilled in rivers in West Virginia and Pennsylvania contains high levels of potentially hazardous ammonium and iodide, according to a study by Duke University scientists.
• North Dakota: In January 2015, three million gallons of drilling wastewater spilled from a leaky pipe outside Williston, polluting a tributary of the Missouri River. In July 2011, a pipeline serving a well in Bottineau County leaked over two million gallons of fracking wastewater, damaging twenty-four acres of private land.
• Colorado: A contractor for a pipeline services firm gave a detailed account of sand-blasting pulverized waste buildup (called "scale") from pipeline seals directly into the air outdoors without a filter, even though such dust can be radioactive and cause damage to lungs.
• Across the Marcellus region: Over the past several years, landfills in states around the Marcellus shale formation--even in New York, where fracking is prohibited--have experienced increasing shipments of drill cuttings that contain high levels of radiation. Many of the landfills do not test for radiation and do not have adequate controls to prevent the often toxic and radioactive "leachate" from seeping into groundwater.

EPA's current regulations do not take into account the dangerous contents of oil and gas wastes or their unique handling and disposal practices. Since 1988, the agency has acknowledged the shortcoming of its basic rules for solid waste management and has indicated that it needs to create enhanced rules tailored to the oil and gas industry. However, the agency has yet to take any action to develop these updated regulations.

"Improper handling of drilling waste threatens the health and safety of 3.5 million Pennsylvania residents whose drinking water comes from private wells," said Barbara Jarmoska, who serves on the Board of Directors of the Responsible Drilling Alliance, a nonprofit advocacy group based in Lycoming County, Pa. "It is past time for the EPA to put public and environmental health and safety first. EPA should revise existing regulations and specifically address issues relevant to the modern oil and gas industry."

If EPA does not act within 60 days of today's notice letter, the groups intend to ask a federal court to set strict deadlines for EPA to complete this long-needed update and strengthening of its regulations for oil and gas wastes.

"These are not your mom and pop wells of the 1980s, and their waste can no longer be ignored and listed as being non-hazardous," said Teresa Mills, director of the Ohio field office for the Center for Health, Environment, and Justice. "For the agency to continue to classify millions of gallons/tons of hazardous material as non-toxic is mind-boggling. The free ride for the oil and gas industry must come to an end, now."