Some people suggest that the state review process is the only thing keeping E&P wastes from being regulated as hazardous wastes under Subtitle C of RCRA. While the state review process may represent a viable alternative to federal regulation, it should be kept in mind that it would take the will of Congress to eliminate the exemption. While Congress could eliminate the exemption, it should not happen without good reason, and could not happen without significant debate.
It has been made clear by the domestic oil and gas industry that regulation of E&P wastes as hazardous would result in severe economic hardship, to the point that significant production would no longer be viable. Both EPA and the states recognize that the factors supporting the exemption are still valid. Existing state and federal regulatory programs are still generally adequate for controlling E&P wastes, and those programs are continually improving, in part as a result of the state review process. EPA has been meeting its mandate to address regulatory gaps in state programs through its support of the state review process.
If E&P wastes were regulated as hazardous, permitting delays for new facilities would disrupt the search for new oil and gas deposits. Existing hazardous waste facility capacity would be severely strained. Federal regulations would disrupt and, in come cases, duplicate state programs tailored to the oil and gas industry. And, Subtitle C regulation would cause an additional permitting burden on the regulatory agencies. As indicated, all of the factors EPA used to support the E&P waste exemption in the 1988 regulatory determination are still applicable.
What should be kept in mind, however, is that EPA is currently authorized to promulgate regulations under Subtitle D of RCRA for non-hazardous municipal and residual wastes. E&P wastes currently fall within this category. However, EPA could, without Congressional action, propose to promulgate E&P waste regulations under Subtitle D, and those regulations could be as stringent and onerous as hazardous waste regulations promulgated under Subtitle C.
It is to the credit of the states and EPA that federal E&P waste regulations have not been proposed or promulgated. Clearly, the success of the state review process is an important factor in that decision. EPA's continuing support of the state review process demonstrates the value that the agency places on it. As IOGCC moves forward with its consideration of approval of the revised guidelines, it should be remembered that both the initial 1990 guidelines and 1994 revisions were controversial, and that no state program fully met those guidelines. Change is difficult, especially when the change results in a critical review of state programs and their implementation.
It is also important to be mindful of the fragile relationship IOGCC presently has with EPA. There is a need to maintain a balance between the traditionally strong, IOGCC states-rights position, and the need to partner with federal agencies to achieve a common goal. It is important to view the opportunities available through the state review process, not just the problems it may cause.
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