These are the parts of the federal environmental protection laws that natural gas drilling and fracking are exempt from:
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1) Fracking is exempt from key federal environmental regulations. The federal Energy Policy Act of 2005 contained a provision that has come to be known as the "Halliburton Loophole," an exemption for gas drilling and extraction from requirements in the underground injection control (UIC) program of the Safe Drinking Water Act (SDWA). Other exemptions are also present in the Clean Air Act and Clean Water Act.
2) Read the Act here: http://energy.wilkes.edu/PDFFiles/Laws%20and%20Regulations/Halliburton%20Loophole%20Essay%20Final.pdf
and here 3) scroll down here http://nofrackohio.com/tools-and-reseach/federal-information/ to Fed Frack-all exemptions.pdf PDF file - download to view or save (133K)
Clean Air Act
§ 112 Hazardous Air Pollutants, § 112(a)(1) Aggregation. Aggregation of Collected Stationary Sources --
any "group of stationary sources located within a contiguous area and under common control" with aggregate
emissions equal to a major source shall be regulated as such. 42 U.S.C. § 7412(a)(1).
Oil and Gas Production Facilities Cannot Be Aggregated for Major Source Control -- "Emissions
from any oil or gas exploration or production well (with associated equipment) and emissions
from any pipeline compressor or pump station shall not be aggregated with emissions from other
similar units...." 42 U.S.C. § 7412(n)(4)(A).
§ 112(a)(2) Small Sources Regulation. Area Source Regulation -- "any stationary source of hazardous air
pollutants that is not a major source" excepting motor vehicles. 42 U.S.C. § 7412(a)(2)
Oil and Gas Production Facilities Cannot Be Regulated as Small Sources -- EPA "shall not list oil
and gas production wells (with associated equipment) as an area sources category… except that
the Administrator may establish an area source category… in any metropolitan statistical area...
with a population in excess of 1 million, if the Administrator determines that emissions of
hazardous air pollutants from such wells present more than a negligible risk of adverse effects to
public health." 42 U.S.C. § 7412(n)(4)(B).
§ 112(b)(1) List of HAPs. Regulated HAPs -- Designated by Congress in the 1990 amendments to the CAA.
42 U.S.C. § 7412(b)(1).
Hydrogen Sulfide Emissions from Wells Not Regulated -- Hydrogen sulfide was not listed as a
HAP by Congress as a concession to oil industry even though human exposure is linked to
irritation, difficulty breathing, nausea, vomiting, headaches, loss of consciousness, and even death
in some circumstances (see NRDC report "Drilling Down" 11-13 (2007)).
§ 160 Prevention of Significant Deterioration, § 169(1). Major Emitting Facility -- potential to emit ≥ 100
tn/yr of any criteria pollutant -- regulated sources include petroleum refineries and petroleum storage and
transfer facilities. 42 U.S.C. § 7469(1).
Well fields are not regulated directly as MEFs -- emissions from production facilities 'eat up'
remaining emissions capacity in PSD areas -- may be subject to regulation under state
§ 171 Nonattainment Areas, § 172(c)(5). Permits for Major Stationary Sources -- new and modified major
sources require special permits in nonattainment areas -- permit requirements set out at § 173. 42 U.S.C. §
Well Fields Are Not Major Sources Subject to Permitting Requirements -- refineries and other
large facilities are major sources.
§ 173(a)(1)(A). Pollution Offset Requirements -- as a condition for issuance of new permits "sufficient
offsetting emissions reductions" must be obtained, so as to represent "reasonable further progress" towards
NAAQS attainment. 42 U.S.C. § 7503(a)(1)(A).
O&G Production Offsets may be required by states in nonattainment areas to demonstrate
pollution offsetting for other industrial growth -- this possibility is identified as a factor limiting
growth of O&G production (see Argonne National Laboratory, USDOE, "Environmental Policy
& Regulatory Constraints to Natural Gas Production" 84-85 (2004)).
§ 181 (note). 1990 Amendments to the CAA contain a minor note exempting stripper wells from nonattainment
provisions. These are oil and natural gas wells with marginal daily production, but which make up 85% of all
U.S. oil wells and account for 18% of U.S. crude production. 42 U.S.C. § 7511.
Stripper Well Exemption in Nonattainment Areas -- ozone, carbon monoxide, PM-10, sulfur
dioxide, nitrous oxides, and lead nonattainment provisions contained in Title I of the CAA will not
apply with respect to the production of and equipment used in O&G production from stripper
wells or stripper well natural gas. This exemption does not apply (1) in serious nonattainment
areas having a population of 350,000 or more, or (2) in severe or extreme nonattainment areas.
Clean Water Act
§ 402(p) NPDES Storm Water Discharge Permits. Permit Program for Municipal and Industrial Storm
Water Discharges -- NPDES permits required for discharges associated with industrial activity and municipal
storm and sewer collection and treatment systems.
Statutory Exemption for O&G from Storm Water Regulation -- EPA shall not require a permit
for storm water discharges from O&G exploration or development activities and "transmission
facilities" so long as the runoff is not contaminated with any raw material, byproduct, or waste.
33 U.S.C. § 1342(l)(2).
§ 502(24) Definition of Exempt O&G Activities. Expansion of Exempted Activities -- Energy Policy Act of
2005 § 323 (119 Stat. 694) -- defined oil and gas exploration and production to cover many more types of
surface disruptions that would otherwise be subject to storm water discharge permitting, including well pads,
new roads, and pipelines.
New, Broader Definition of Permissible Disruptions
-- 'Oil and gas exploration, production,
processing, or treatment operations or transmission facilities' means all field activities [associated
with exploration and development]… including activities necessary to prepare a site for drilling...
whether or not such field activities or operations may be considered to be construction activities.
33 U.S.C. § 1362(24).
40 CFR § 122.26 Storm Water Discharge Permit Regulations. Storm Water Discharge Regulations -- EPA implemented regulations for storm water discharges -- Phase I large sites (5+ acres); Phase II small sites (1-5
Exemption for sediment Loading
-- EPA revised 40 CFR § 122.26(a)(2)(ii) to say that a water quality standard violation for sediment alone does not trigger a permitting requirement -- based
on interpretation of the 2005 amendment that exempted construction activities at O&G sites. 71
Fed. Reg. 33,628 (Jan. 6, 2006).
§ 502(2)(B) Definition of 'Pollutant' -- discharge of pollutants requires a NPDES permit.
Statutory Exemption for Fracing Fluids -- Materials injected into an oil or gas well to facilitate
production (such as fracing fluid), or produced water re-injected for disposal, are not considered
pollutants if approved by a state and that state determines that such injection or disposal will not
result in the degradation of ground or surface water resources. 33 U.S.C. § 1362(2)(B).
Safe Drinking Water Act
Protective Standard for Underground Injection
-- UIC regulations shall contain minimum requirements for
effective programs to prevent underground injection which "endangers drinking water sources" (defined at §
300h(d)(2)). 42 U.S.C. § 300h(b)(2).
Exemption for Fracing Chemicals
-- UIC regulations may not interfere with or impede O&G
hydraulic fracing or other underground injection for recovery of oil or natural gas unless such
requirements are essential to assure that underground drinking water sources will not be
endangered by such injection. 42 U.S.C. § 300h(b)(2).
Underground Injection Defined -- the term "underground injection" means the subsurface emplacement of fluids by well injection. 42 U.S.C. § 300h(d)(1).
Specific Exemptions for Fracing Fluids
-- underground injection excludes (i) injection of natural
gas for purposes of storage; and (ii) injection of fracturing fluids (other than diesel fuels) related
to oil, gas, or geothermal production activities. 42 U.S.C. § 300h(d)(1)(B).
40 CFR § 146.5 Well Classifications for Underground Disposal -- The UIC program classifies different
types of wells, imposing stricter regulations on wells used to inject RCRA-classified hazardous materials.
RCRA Exemptions for O&G Toxic Materials means they can be injected into Class II wells with
fewer regulatory controls, instead of limiting injection to strictly regulated Class I wells.
Resource Conservation and Recovery Act
§ 3001(2)(A) Hazardous Wastes Designation. Wastes associated with exploration, development, and
production were exempted from RCRA pending recommendations from EPA to Congress.
Legislative Exemption -- The exempted wastes were defined as "…drilling fluids, produced
waters, and other wastes associated with the exploration, development, or production of crude oil
or natural gas or geothermal energy…." 42 U.S.C. § 6921(b)(2(a)
53 Fed. Reg. 25,445 (1988). EPA's final regulation on exemption of exploration, development and production wastes.
Wastes "Uniquely Associated" with E&P are exempt from Subtitle C. These include gas and oil
drilling muds, oil production brines, drilling fluids, and produced water. Natural gas plants that
process NG to remove water and other impurities prior to entering the sales line are considered to
be part of the exempt production operations regardless of their location with respect to the
wellhead. See the final regulations for a list of exempt and non-exempt wastes.
58 Fed. Reg. 15,284 (1993). EPA clarifications of the exemption rules.
Scope of exemption -- "A simple rule of thumb for determining the scope of the exemption is
whether the waste in question has come from down-hole (i.e. brought to the surface during oil and
gas E&P operations) or has otherwise been generated by contact with the oil and gas production
stream during the removal of produced water or other contaminants from the product.... If the
answer to either question is yes, the waste is most likely considered exempt."
§ 3006 State Hazardous Waste Programs. Delegation of Regulatory Authority -- EPA can delegate
regulatory authority to state hazardous waste programs that meet the minimum standards of the federal
regulations 42 U.S.C. § 6926.
Narrower E&P Waste Exemptions Under State Law -- States may adopt more stringent
regulation on hazardous wastes than the federal standards by choosing to regulate federallyexempted
wastes. California, for example, has stricter disposal and injection requirements than
federal law and uses state standards to classify hazardous wastes.
§ 1004 Definitions. Solid Waste -- "The term 'solid waste' means any garbage, refuse, sludge… and other discarded material, including solid, liquid, semisolid, or contained gaseous material resulting from industrial,
commercial, mining, and agricultural operations…." 42 U.S.C. § 6903(27). Hazardous wastes are a subset of solid wastes.
Solid Waste Regulation
-- The hazardous waste exemption does not preclude regulation of exempt
exploration and production wastes under the less stringent Subtitle D regulations on solid wastes.
§ 7003 Imminent and Substantial Endangerment. Cleanup Actions -- EPA and citizen plaintiffs can bring
cleanup actions against "any person (including any past or present generator… or owner or operator…)" where
"evidence that the past or present handling, storage, treatment, transportation or disposal of any solid waste or
hazardous waste may present an imminent and substantial endangerment to health or the environment...." 42
U.S.C. § 6973.
Operator Liability -- Generators and treatment facilities dealing with otherwise exempt hazardous
materials may be liable for cleanup under this standard if the exempt wastes are considered solid wastes.
EPA has (informally) acknowledged potential operator liability under this section, but notes that the
RCRA hazardous waste exemption allows the operator to choose a waste management and disposal
option that is less stringent and possibly less costly than would be required under Subtitle C. -- See
EPA, RCRA Exemptions 21-22 (2002).
1980 Establishes a governmental response to releases of hazardous substances into the environment and holds polluting industries liable for cleanup costs. But natural gas and oil are not considered hazardous under this law, making it more difficult for the E.P.A. to hold some oil and gas operations liable.
§ 101 Definitions. Materials that Trigger CERCLA Liability -- § 101(14) defines hazardous substances
whose release or threatened release is a prerequisite for CERCLA liability.
Specific Exemption for Petroleum and Natural Gas -- "The term does not include petroleum,
including crude oil or any fraction thereof which is not otherwise specifically listed or designated
as a hazardous substance [in other environmental provisions -- see below], and the term does not
include natural gas, natural gas liquids, liquefied natural gas, or synthetic gas usable for fuel...."
42 U.S.C. § 9601(14).
§ 101(14) Hazardous Materials. Hazardous Materials Defined by Reference to Federal Environmental
Statutes -- CERCLA defines hazardous wastes by reference to hazardous substances definition at: RCRA (42
U.S.C. § 6921); CWA (33 U.S.C. §§ 1317(a), 1321(b)(2)(a)); TSCA (15 U.S.C. § 2606); CAA (42 U.S.C. §
Referenced Sections Contain Exemptions for Oil, Gas, and Associated Wastes -- These citations
are to definitions with exemptions for oil and associated wastes -- see relevant provisions in this
table for details.
Exemption for Hazardous Materials When They Occur Naturally in Oil or Natural Gas -- EPA
has interpreted the exemption to cover other hazardous substances when they occur naturally in
oil or gas, including benzene, toluene, xylenes, polycyclic aromatic hydrocarbons, arsenic, and
-- See Daniel L. McKay, RCRA's Oil Field Wastes Exemption and CERCLA's Petroleum
Exclusion, 15 J. Energy Nat. Resources & Envtl. L. 41, 70-71 (1995).
Emergency Planning and Community Right to Know Act (EPCRA), Toxic Release Inventory (TRI).
1986 Requires certain industries to report to the E.P.A. on the storage, release or transfer of significant levels of
toxic substances. But much of the oil and gas industry has not been required by the E.P.A. to follow the law’s
National Environmental Policy Act
Energy Policy Act of 2005 § 390. Categorical Exclusion of NEPA Review in DOI and USFS Lands -- "Action
by [DOI] in managing the public lands, or the Secretary of Agriculture in managing National Forest System
Lands… shall be subject to a rebuttable presumption that the use of a categorical exclusion under [NEPA]
would apply if the activity is conducted pursuant to the Mineral Leasing Act for the purpose of exploration or
development of oil or gas." 42 U.S.C. § 15924(a).
Categorical Exclusion Applies when:
-- surface disturbance of < 5 acres;
-- sites where drilling took place w/in previous 5 years
-- drilling of wells w/in a developed field for which an approved land-use plan or NEPA document
was prepared. 42 U.S.C. § 15924(b)
Most Drill Pads Are Less Than 5 Acres -- opens possibility that large drilling projects could avoid
NEPA review as any number of individual wells.
72 Fed. Reg. 45,504. Categorical Exclusion of NEPA Review for Oil and Gas Exploration Activities
on BLM Lands -- BLM categorical exclusion for geophysical exploration projects that do not include
the construction of roads.
Where Exploration Activities Do Not Require New Road Building -- If the proposed action
involves no new or temporary road construction, the field office shall use the categorical exclusion
to satisfy NEPA compliance, unless the authorizing officer determines that an EA would be
helpful, or there are extraordinary circumstances involved in the application. 516 DM 11.9(B).