Groups sue EPA for failure to update oil, gas industry waste regulations

Three environmental organizations filed a lawsuit Wednesday against the Environmental Protection Agency in a push for updated oil and gas industry waste regulations. They say outdated rules have led to an increase in earthquakes, groundwater contamination and other health and safety issues.

Adam Kron, senior attorney at the Environmental Integrity Project, said the EPA has failed to protect the environment and the public because laws surrounding oil and gas industry waste haven’t been updated for 28 years, despite requirements set by Congress that it review the laws every three years.

In 1988, the EPA did review the rules on the books and reported that they needed to be updated, Kron said. Despite concerns expressed at the time about new technology and operation methods that needed to be addressed, the EPA has never issued those rules.

Instead, regulation of the industry, which has increased in size exponentially, has been left to the states, which vary widely in their approach to the problem, Kron said.

Although it is an issue dating back years, the challenges of waste disposal related to oil and gas have been in the news because of fracking and the increase in earthquakes in the U.S. Rex Buchanan, interim director at Kansas Geological Survey, said fracking doesn’t actually cause earthquakes, but the disposal of the saltwater used in the process does.

“These earthquakes are generally attributed to saltwater disposal rather than to the actual fracking,” he said. “It’s important because in effect, the fracking process is a temporary process that releases more oil to be produced. It does create, by definition, almost very small earthquakes, not strong eought to be felt at the surface. The earthquakes that are believed to be produced or manmade are as a result of large volumes of saltwater that’s produced along with the oil.”

But it isn’t only saltwater disposal from fracking that concerns the three groups: EIP, Natural Resources Defense Council and Earthworks. The oil and gas industry also has disposed of waste in open pits and spreading wastewater on roadways, and Kron said open pits are notoriously responsible for contaminating groundwater.

“This failure has real-world effects, as the disposal of this waste can cause health impacts, drinking water contamination and even earthquakes,” Kron said of the EPA’s failure to issue new guidelines.

The Kansas Corporation Commission, which regulates the oil and gas industry, has taken steps to address the potential for earthquakes created by the fracking process, Buchanan said, including forming the Induced Seismicity Task Force in 2014 to study and report on the increased seismic activity.

“The KCC in March of 2015 issued an order that was sort of a staged reduction of volume in five areas of seismic concern in Harper and Sumner counties,” Buchanan said.

Samir Arif, spokesman for the KCC, said that beginning in March 2015, KCC limited the volume of saltwater that could be used by oil and gas companies in those areas. Recently, KCC staff recommended an expansion of the area covered by those limitations, an issue yet to be addressed by the KCC.

Although there is disagreement on the link between earthquakes and fracking, Buchanan said “there’s no question” changes occurred in southwestern Kansas after the saltwater volume limits were instituted.

“We didn’t see as many within the zones as we were seeing before, but we continue to see them outside the zones,” he said, referring to the Harper and Sumner county areas. “I think folks here would agree that the order had an impact. We saw a pretty significant decrease (of earthquakes) as 2015 went along, and in the early part of 2016, particularly in terms of larger events, and I think folks would probably attribute that to both the order and to the lower oil prices, which resulted in less drilling and less water disposal.”

Gov. Sam Brownback formed the task force in response to a significant increase in Kansas’ number of earthquakes. Data on the KCC website said that between 1981 and 2010, Kansas 30 recorded earthquakes. In 2014, the state recorded 132 earthquakes 2.0 or larger on the Richter scale and 166 in 2015, according to Buchanan.

But seismic activity has decreased significantly in 2016, he said, with just 17 or 18 earthquakes reported by the end of April.

KCC’s Arif said the state does regulate the industry, including ensuring wellbores are built to keep the fluids contained so they don’t seep into nearby water formations. Those construction standards vary across the state, based on the geology.

“This is true for producing wells and wells used for disposal or injection,” he said. “Injection wells have further steps to ensure they maintain their mechanical integrity through regular testing. Done a minimum of every five years, these tests help ensure the fluids going down the wells are going to the permitted formation and not any usable waters.”

Regarding allowing companies to spread the wastewater on roadways, Arif and other KCC staff said Kansas Administrative Regulations allow water from the wells to be spread on roadways or construction sites, but only under jurisdiction Kansas Department of Health and Environment and “for disposal or use in other oil and gas activities as approved by the KCC.”

Buchanan said the state has worked to address the issues raised about safety in disposal of water in the oil and gas industry.

“I can tell you that I spent a lot of time dealing with induced seismicity on the national basis,” he said. “Folks at the KCC spend a lot of time looking at what other states are doing and comparing notes regarding the efficacy of what we’re doing compared to other states. The KCC is very much aware of what’s going on.”

Kron and others with the environmental organization are concerned some states aren’t adequately protecting their residents, and they listed incidents of ground contamination and earthquakes to prove their point.

“This waste is toxic. This waste can be very hazardous,” said Aaron Mintzes, of Earthworks. “EPA’s failure to act in this arena has resulted in uneven, inadequate enforcement, a regulatory permissiveness.”