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Regulation of the energy sector tends to lag technological developments. This has been an underlying issue in heated debates about the safety and dangers of hydraulic fracturing, and whether it should be regulated at the federal level.

A group of energy experts convened at OurEnergyPolicy.org for an online discussion of how waste produced during the hydraulic fracturing process should be handled from a regulatory perspective.

“The Resource Conservation and Recovery Act (RCRA) of 1976 requires the safe disposal of solid waste and hazardous materials.

“The regulatory determination was issued before fracking, which uses toxic materials, had become commonplace. Yet fracking remains exempt from RCRA’s Subtitle C standards for safe disposal of hazardous waste. Exempted E&P waste includes: drilling fluids and cuttings, produced water, used hydraulic fracturing fluids, rigwash, workover wastes, tank bottom sludge, glycol-based dehydration wastes, amine-containing sweetening wastes, hydrocarbon-bearing soil, and many other individual waste products.”

Should that exemption be lifted? Should the EPA regulate oil and gas waste in the same way it regulates waste from other sectors?

None of the respondents argued against federal regulation of oil & gas waste, though some suggested that a lack of both political will and reliable data could get in the way. Here are some of their responses. You can read the full discussion here.

Why Oil & Gas Waste Should Be Regulated at the Federal Level 

It’s a Zero-Sum Game:

“Regulation of some sort is needed, because the least-cost practices for E&P would be the greatest-cost practices for society as a whole.” – Roger Arnold, Systems Architect, Silverthorn Engineering

to Prevent a Regulatory Race to the Bottom:

“The federal government should have a major role in the regulation of hydraulic fracking technology and its environmental impacts, just as it does with respect to other energy sources, because of the potential for impacts beyond state borders and the national interest in uniformity of regulation to prevent the states from engaging in a regulatory ‘race to the bottom’.” – Kenneth A Reich, Principal, Kenneth Reich Law

National Benefits Could Entail Local Hazards:

“While some commentators feel that state regulation is sufficient, I’m skeptical.”

“It’s reasonable to ask about the costs of federal regulation under RCRA, but it’s also reasonable to ask why local populations should be subject to hazards for activities that produce national benefits.” – Wil Burns, Director, Energy & Climate Program, Johns Hopkins University

Benefits Aren’t Just Environmental: 

“There are cost-effective alternatives to reduce the risk as long as the waste is being generated, including new techniques to manage the waste as well as methods to reduce, reuse, and recycle waste. In many instances, the use of more environmentally sound disposal practices actually saves oil and gas companies money.” – Amy Mall, Senior Policy Analyst, Natural Resources Defense Council

Why It Might Prove Difficult

Congress Lacks the Political Will:

“It’s not clear that EPA can unwind the exemption without congressional action – and it is certainly clear that any effort to move on executive authority alone would run into a series of legal challenges that would at least delay action for years, if not decades.  What is clear is that the broad support necessary to address the RCRA exemption simply does not exist in this (or the next) Congress.” – Elias Hinckley, Partner, Sullivan & Worchester

Conditions Haven’t Reached Crisis Proportions:

“Some regulation is necessary to eliminate the elements of waste that will cause the worst long term damage but in truth I believe that the trump card will be the demand for energy and society will have a damn the costs attitude in the short run until the problems become too large to ignore.” – Bruce Best, Director, Ocean Power Systems

Voters Appear Apathetic:

“Can anyone imagine even 3% (let alone 30%) of the US electorate taking to the streets to demand putting an end to special treatment for fossil fuels?” – William Mullins, Principal, Better Choices Consulting

Data is Lacking:

“What might be helpful in this discussion is an attempt to monetize the costs of implementing regulatory requirements for the oil and gas industry under RCRA and the costs, largely health and property costs, for not implementing these regulatory requirements.” – Herschel Specter, President of RBR Consultants


  • Bradley Layton

    After having seen some of the waste mismanagement practices of private industries in Missoula, Montana, it’s pretty clear that any industry that can avoid third-party oversight of waste management will do so. It has happened in ecologically diverse and fragile waterways and will likely continue to happen within companies that still use a “single bottom line approach.” -Bradley Layton

  • Name

    Waste from the OIl and Gas sector is huge. Everything we do today consumes fossil fuel directly or indirectly. Surely regulation is required for indiscriminate disposal of waste.
    Further, safe disposal / utilsation of waste itself consumes energy. Where does the process end.