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Wednesday, August 28, 2013

Controversies over Redefining “Fill Material” Under the Clean Water Act

Claudia Copeland
Specialist in Resources and Environmental Policy

In May 2002, the Environmental Protection Agency (EPA) and the U.S. Army Corps of Engineers
(the Corps) announced a regulation redefining two key terms, “fill materialand discharge of fill material,” in rules that implement Section 404 of the Clean Water Act. This report discusses the 2002 rule, focusing on how it changes which material and types of activities are regulated under Section 404 and the significance of these issues, especially for the mining industry.

The Clean Water Act contains two different permitting regimes: (1) Section 402 permits (called the National Pollutant Discharge Elimination System, or NPDES, permit program) address the discharge of most pollutants, and (2) Section 404 permits address the discharge of dredged or fill material into navigable waters of the United States at specified sites. These permit programs differ in nature and approach. The NPDES program focuses on the effects of pollutant discharges on water quality. The 404 program considers effects on the aquatic ecosystem and other national and resource interests.

The Corps and EPA have complementary roles under Section 404. Landowners seeking to discharge dredged or fill material must obtain a permit from the Corps under Section 404. EPA provides environmental guidance on 404 permitting. The determination of what is “fill material” is important, since fill material is subject to 404 permit requirements, while discharge of non-fill material is regulated by EPA under the Section 402 NPDES permit program.

The revised rule was intended to clarify the regulatory definition of fill material by replacing two separate and inconsistent definitions with a single, common definition. It expanded the types of discharge activities that are subject to Section 404 specifically to include construction or maintenance of the infrastructure associated with solid waste landfills and mining overburden. Further, the revised rule removed regulatory language which previously excluded “waste” discharges from Section 404 jurisdiction, a change that some argue allows the use of 404 permits to authorize certain discharges that harm the aquatic environment.

The final rule completed a rulemaking begun in April 2000 by the Clinton Administration. Its proposal had generated support from the mining industry and other regulated groups, and considerable opposition from environmental groups. The final rule is substantially similar to the earlier proposal. Environmental groups say the rule allows for inadequate regulation of certain disposal activities, including disposal of coal mining waste. The Clinton and Bush Administrations said that the regulatory changes were intended to conform Corps and EPA regulations to existing lawful practice, but opponents contend that those practices violate the Clean Water Act. Legislation to reverse the revised regulations has been introduced in the 113th Congress (H.R. 1837, the Clean Water Protection Act). Similar legislation was introduced in
previous Congresses. The Obama Administrations views on these issues are unknown for now.

Date of Report: August 21, 2013
Number of Pages: 13
Order Number: RL31411
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Thursday, August 22, 2013

Background on and Implementation of the Bevill and Bentsen Exclusions in the Resource Conservation and Recovery Act: EPA Authorities to Regulate “Special Wastes”

Linda Luther Analyst in Environmental Policy

The federal program to manage hazardous waste was established in 1976 by the Resource Conservation and Recovery Act (RCRA). Under RCRA Subtitle C, Congress directed the Environmental Protection Agency (EPA) to promulgate standards applicable to persons who generate, transport, treat, store, or dispose of such waste. Under the program, federal waste handling requirements govern every phase of waste management, from its generation to its final disposition and beyond (“cradle to grave”).

The stringent Subtitle C standards apply only to waste identified as “hazardous” according to regulatory criteria established by EPA. This report discusses waste excluded from the regulatory definition of hazardous waste pursuant to amendments to Subtitle C in the Solid Waste Disposal Act Amendments of 1980. Sometimes referred to by the names of their sponsors, Representative Thomas Bevill and Senator Lloyd Bentsen, the amendments exclude specific large-volume industrial solid waste from Subtitle C, as follows:

The Bevill Amendment—fly ash waste, bottom ash waste, slag waste, and flue gas emission control waste generated primarily from the combustion of coal or other fossil fuels; solid waste from the extraction, beneficiation, and processing of ores and minerals, including phosphate rock and overburden from the mining of uranium ore; and cement kiln dust (42 U.S.C. §6921(b)(3)(A)(i)-(iii)).

The Bentsen Amendment—drilling fluids, produced waters, and other wastes associated with the exploration, development, and production of crude oil or natural gas or geothermal energy (42 U.S.C. §6921(b)(2)(A)). The exclusions were temporary, pending EPA study of each waste, followed by reports to Congress and regulatory determinations explaining whether or not regulation under Subtitle C was warranted. 

Regulatory Determinations for Bevill-Bentsen Waste 

EPA issued regulatory determinations for each type of waste between 1988 and 2002. With limited exceptions, the agency determined that regulation under Subtitle C was not warranted. EPA noted that the exclusion is not equivalent to determining the waste is nonhazardous. EPA identified conditions under which management of each waste poses some threat to human health and the environment. The exemption meant that Subtitle C’s strict cradle-to-grave management may not be practical for the waste, but that other potentially applicable state or federal requirements could be adequate to address waste-specific risks. For example, wastewater excluded from Subtitle C may be subject to National Pollutant Discharge Elimination System permitting requirements established under the Clean Water Act (CWA) if its disposal involves discharge to surface water or processing at a municipal wastewater treatment facility. 

Existing EPA Authority to Regulate Bevill-Bentsen Waste 

Two categories of Bevill-Bentsen wastes that have recently drawn national attention include wastewater generated from natural gas production that involves hydraulic fracturing and coal combustion waste (CCW) generated at coal-fired power plants (e.g., “coal ash”). That attention has been due, in part, to changes in the volume or nature of the waste or as a result of risks to human health and the environment associated with improper management of the waste.

Date of Report: August 6, 2013
Number of Pages: 15
Order Number: R43149
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Tuesday, August 20, 2013

Hydraulic Fracturing: Selected Legal Issues

Adam Vann
Legislative Attorney

Brandon J. Murrill
Legislative Attorney

Mary Tiemann
Specialist in Environmental Policy

Hydraulic fracturing is a technique used to recover oil and natural gas from underground low permeability rock formations. Its use along with horizontal drilling has been responsible for an increase in estimated U.S. oil and natural gas reserves. Hydraulic fracturing and related oil and gas production activities have been controversial because of their potential effects on public health and the environment. Several environmental statutes have implications for the regulation of hydraulic fracturing by the federal government and states.

An amendment to the Safe Drinking Water Act (SDWA) passed as a part of the Energy Policy Act of 2005 (EPAct 2005) clarified that the Underground Injection Control (UIC) requirements found in the SDWA do not apply to hydraulic fracturing, although the exclusion does not extend to the use of diesel fuel in hydraulic fracturing operations. The underground injection of wastewater generated during oil and gas production (including hydraulic fracturing) does require a UIC permit under the SDWA, as do injections for enhanced oil and gas recovery operations. Under the Clean Water Act (CWA), parties seeking to discharge produced water may have to apply for a permit under the National Pollutant Discharge Elimination System. Under the Clean Air Act (CAA), the Environmental Protection Agency (EPA) has issued new rules covering emissions of volatile organic compounds from hydraulic fracturing operations.

Provisions of the Resource Conservation and Recovery Act (RCRA) exempt drilling fluids, produced waters, and other wastes associated with the exploration, development, or production of crude oil, natural gas, or geothermal energy from regulation as hazardous wastes under Subtitle C of RCRA. However, these wastes are subject to other federal laws (such as the SDWA and the CWA), as well as to state requirements. Facility owners and operators and other potentially responsible parties could potentially face liability under the Comprehensive Environmental Response, Compensation, and Liability Act (CERCLA) for cleanup costs, natural resource damages, and the costs of federal public health studies, if hydraulic fracturing results in the release of hazardous substances at or under the surface in a manner that may endanger public health or the environment.

The National Environmental Policy Act (NEPA) requires federal agencies to consider the environmental impacts of proposed federal actions before proceeding with them. An agency would be obligated to consider the impacts of an action that involves hydraulic fracturing if that action takes place on federal lands or when there is otherwise a sufficient federal nexus to hydraulic fracturing.

Under the Emergency Planning and Community Right-to-Know Act (EPCRA), owners or operators of facilities where certain hazardous hydraulic fracturing chemicals are present above certain thresholds may have to comply with emergency planning requirements; emergency release notification obligations; and hazardous chemical storage reporting requirements. In August 2011, environmental groups petitioned EPA to promulgate rules under Section 4 and Section 8 of the Toxic Substances Control Act (TSCA) for chemical substances and mixtures used in oil and gas exploration or production.

Hydraulic fracturing tort litigation has raised questions about causation; whether hydraulic fracturing is an abnormally dangerous activity; and whether hydraulic fracturing may constitute a subsurface trespass to land.

Date of Report: July 16, 2013
Number of Pages: 38
Order Number: R43152
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