CHAPTER 5 SOLID WASTE MANAGEMENT AND ENVIRONMENTAL REGULATION OF COMMONLY ENCOUNTERED OIL FIELD WASTES
| Jurisdiction | United States |
(Feb 1994)
SOLID WASTE MANAGEMENT AND ENVIRONMENTAL REGULATION OF COMMONLY ENCOUNTERED OIL FIELD WASTES
ENSERCH Corporation
Dallas, Texas
Environmental legislation enacted over the last several decades has produced a complex matrix of regulations. Environmental compliance now represents a significant cost of doing business, both in terms of the cost of compliance and in terms of the possible penalties and fines which could be incurred as a result of non-compliance. A detailed understanding of the applicability and impact of environmental waste management regulations on oil and gas facilities is necessary for informed corporate decision making, planning, and acquisition and divestiture analysis.
BACKGROUND OF SOLID WASTE LEGISLATION
Solid waste legislation has an interesting history in the United States. The oil and gas producer, processor, pipeline, and refiner by necessity must deal with a number of federal and state statutes that regulate solid wastes, many of which have been amended at least once. Since many violations have been criminalized, an understanding of the regulatory structure is a necessity.
In 1965, the Solid Waste Disposal Act ("SWDA") was enacted to assist states in the regulation of solid waste dump sites. The SWDA was amended in 1970, and again in 1973, with the passage of the Resource Recovery Act which encouraged the recovery and recycling of solid wastes.
In 1976 the Resource Conservation and Recovery Act ("RCRA") was enacted to track hazardous waste disposal from "cradle to grave", and for the following purposes:
1. To provide a system of tracking and preserving a record of the movement of hazardous waste from origin to disposal. This "cradle to grave" concept is implemented with the manifest system.
2. To insure that the disposal of hazardous waste was accomplished by a method to prevent the escape of waste into the environment.
3. To insure that non-hazardous wastes are disposed of in an appropriate manner, and to encourage recycling.
4. To provide an enforcement mechanism to insure that hazardous wastes are properly handled and disposed of.
In 1980 the Comprehensive Environmental Response Compensation and Liability Act ("CERCLA") was enacted to provide funding and enforcement authority for cleaning up hazardous sites. RCRA generally deals with present hazardous waste management, while CERCLA deals with inactive hazardous waste sites and the clean up
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of such facilities.
In 1984 the Hazardous Waste Amendments to RCRA were enacted which required landfills to be lined, regulated underground storage tanks, and restricted the materials that could be disposed of in a landfill without treatment (the "land ban").
In 1986 the Superfund Amendments and Reauthorization Act further amended RCRA to require owners of underground storage tanks carry certain financial insurance for leaking tanks, and established a clean up fund for the tanks, required emergency plans for accidental releases of toxic materials, and also extend the scope and breadth of CERCLA.
Future amendments to solid waste legislation cannot be predicted, but from the history of solid waste legislation such amendments are likely.
In addition to federal legislation, many states have enacted legislation to supplement or extend federal solid waste programs. In many cases such state regulation is not preempted if it extends the federal legislation and does not interfere with the federal regulatory scheme.
PART I SOLID WASTE REGULATION UNDER THE RESOURCE CONSERVATION AND RECOVERY ACT ("RCRA")
The Resource Conservation and Recovery Act ("RCRA") of 1976, as amended by the Hazardous and Solid Waste Amendments of 1984, established a comprehensive statute to regulate the generation, transport, and disposal of "solid wastes".1 Solid wastes by RCRA definition can consist of solid, liquid, or gaseous materials, and include those materials that are "discarded", "abandoned" or "inherently waste-like".2
The term "disposal" has been defined in RCRA as the discharge, deposit, injection, dumping, spilling, leaking or placing of any solid or hazardous waste into any land or water so that the material enters the environment.3
RCRA solid wastes may or may not be classified as a RCRA "hazardous" waste.4 One of the most important tasks an oil and gas facility must accomplish is to classify its solid wastes as hazardous or non-hazardous.
(a) RCRA Subtitle "C" "Hazardous wastes"
Under RCRA a solid waste can be considered a "hazardous waste" if: (1) the material is "listed" by the EPA as hazardous, or (2) it exhibits one of four "characteristic" attributes identified by the EPA which make it hazardous. Such hazardous materials are regulated
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under "Subtitle 'C'" of RCRA.
(i). Listed Wastes. Three separate lists exist to define "listed" RCRA hazardous wastes: (1) lists of non-specific sources, (2) lists of specific sources, and (3) lists of discarded commercial chemical products.5
Listed wastes are assigned an EPA waste number. Wastes from non-specific sources are "F-listed" wastes; that is their waste number will start with the letter "F". Hazardous wastes from specific sources are "K-listed" wastes6 , and discarded commercial chemical products are either "P-listed" wastes if they are "acutely hazardous" or "U-listed" wastes if they are "toxic" over a period of prolonged exposure.7
(ii). Characteristic Wastes. If a waste is not a "listed" hazardous waste, it may be a "characteristic" hazardous waste under RCRA by exhibiting one of the hazardous attributes. The "characteristic" attributes of hazardous wastes include: (1) ignitability, (2) corrositivity, (3) reactivity, or (4) toxicity.8 EPA hazardous waste identification numbers for characteristic wastes are preceded by the letter "D".9
The toxicity testing procedures were revised in 1990, and many materials that would not have been considered hazardous under the previous test are now considered hazardous waste under the new test. The new toxicity test, designated the Toxicity Characteristic Leaching Procedure ("TCLP"), is designed to test the mobility of contaminants present in the waste.10 The original toxicity test concerned itself with the presence of eight metals, four insecticides, and two herbicides. The new test changed the methodology of the toxicity test, and added 25 new organics which could render a substance "toxic" under the TCLP test.
TCLP regulatory levels for the toxic characteristics most commonly encountered in oil field wastes as follows11 :
TCLP REGULATORY TEST LEVELS
| MATERIALS | REGULATORY LEVEL (mg/1) |
| Arsenic | 5.0 |
| Barium | 100.0 |
| Cadmium | 1.0 |
| Chromium | 5.0 |
| Lead | 5.0 |
| Mercury | 0.2 |
| Selenium | 1.0 |
| Silver | 5.0 |
| Benzene | 0.5 |
| Carbon Tetrachloride | 0.5 |
Wastes that contain TCLP substances in quantities greater than the TCLP designated regulatory level will in most cases be
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considered "hazardous", unless they fall under the oil and gas exemption (discussed below).12 Care should be taken to distinguish between the TCLP test, which determines the mobility of the contaminants, and an analysis for total concentrations which does not measure leachability.
With regard to oil and gas wastes, chromium and barium are commonly found in drilling muds, mercury in gas meters, lead from pipe dope and paint, and benzene in produced waters. Additional TCLP regulatory levels exist for pesticides/herbicides and volatile substances. Maximum benzene levels of 0.5 part per million will make many petroleum related wastes exceed RCRA TCLP toxicity standards, and these wastes should be treated as hazardous unless exempted.
(b) Special Hazardous Waste Rules
(i). "Empty Container" Rule. An empty container which contained hazardous wastes, except for acute hazardous wastes, may not be subject to RCRA regulation as a hazardous waste.13 A container is "empty" when all wastes that can be removed by pouring, pumping, etc. are removed and no more than one inch of residue remains or no more than 3% by weight remains in a container which is smaller than 110 gallons. If the container is greater than 110 gallons, then no more than 0.3% by weight can remain as residue.14
Containers holding "acute" hazardous wastes must be triple rinsed with a solvent that will remove such wastes before they are considered an empty container. If considered empty under the regulations, the container can be disposed of as a non-hazardous solid waste under RCRA.
(ii). "Mixture" and "Derived From" Rule. The RCRA "mixture" rule pertains to the regulation of "hazardous wastes" under Subtitle C of the Resource Conservation and Recovery Act ("RCRA"), and states that combining a RCRA "listed" hazardous waste with other non-hazardous wastes causes the entire combination to be considered hazardous.15
Similarly, the "derived from" rule states that any solid waste generated from the treatment, storage, and disposal of a listed hazardous waste will be considered a hazardous waste unless it is delisted.16 For this reason any site inspection should insure that no RCRA listed wastes have been mixed with other materials.
The mixture and derived from rule was vacated by Shell Oil v. EPA, 950 F.2d 741 (D.C. Cir. 1991), but has been temporarily reinstated while hazardous waste identification rules are being developed by the EPA to replace it.
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RCRA EXPLORATION AND PRODUCTION HAZARDOUS WASTE EXEMPTION
In 1980 RCRA was amended so as to exclude several major categories of waste materials until the EPA could conduct special studies of the wastes to determine if they needed to be covered by a stringent waste management program. This amendment, named the "Bevill Amendment", required a study of high volume low toxicity wastes generated in oil and gas operations.17
(a) Exempt Wastes. As a result of such studies the EPA determined that an exemption from the hazardous waste...
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