The following presentation by Dr. Ben M. Stout III Professor of Biology provides a strong scientific basis for rejecting the proposed plant in Wheeling. It also answers some questions about this type of operation no matter where it might eventually be located and as such is a model for those interested in learning the truth as is referenced to this type of Fracking related industry.
To: Wheeling City Council members,
First, let me extend my thanks to Councilwoman Gloria Delbrugge for hosting the public information meeting Tuesday, May 22, 2013 in Council Chambers, and to Mr. John Jack from GreenHunter for his presentation and responses to citizen comments and concerns.
I am a professional biologist with 30 years of experience and a tenured Professor of Biology at
Wheeling Jesuit University. Like all of us, I have struggled to keep up with the rapid pace of natural
gas development following the evolution of horizontal drilling and slickwater hydrologic fracturing.
These are new technologies for which little information is known and my goal is to protect the quality
of water, air, and public health. My students and I are engaged in community-based participatory
research, that is, we work with community organizations to help solve local problems.In my opinion, the City of Wheeling is "on its own" to make a decision whether to site the GreenHunter facility as proposed. There is no regulatory authority at the state or federal level for sighting or permitting the handling and disposal of waste at the proposed facility. In fact, due to exemptions, there is no regulatory authority for enforcing the Clean Air Act, the Clean Water Act, the National Environmental Policy Act, or the Resource Conservation and Recovery Act with regard to the handling and disposal of waste at the facility. The city of Wheeling is on its own and is in the uncomfortable position of making decisions about the future of community health and environmental well-being based purely on existing city ordinances. The purpose of this letter and attached information is to provide an alternative view of some of the information presented at the community meeting and currently in print. Accompanying documentation presents new information regarding the constituents of frack-water waste that, up until now, has not been accessible in the public domain. I have provided each Wheeling City Council member with this information in print copy and also as an email .pdf file, and I strongly encourage this information to be shared with others to obtain their opinions. I discourage any variance from existing city ordinance in permitting the proposed GreenHunter application for the following six reasons: I. Truck traffic in Wheeling will increase, not decrease II. Brine Water trucks present unknown hazards to Wheeling residents and first responders III. Wheeling's previous experience with shale waste resulted in community liability IV. Laboratory testing indicates brine-water is a threat to residents and first responders V. Laboratory testing indicates brine-water is a threat to the Wheeling water supply VI. Bromides are already causing problems with Wheeling's water supply Sincerely, Dr. Ben M. Stout III Professor of Biology 316 Washington Avenue, Wheeling, WV 26003 (304) 243-2316 • fax (304) 243-4441 • bens@wju.edu Six Reasons not to Permit the Proposed GreenHunter Facility in Warwood
I. Truck traffic in Wheeling will increase, not decrease Trucks currently leaving Beech Bottom and traveling through Wheeling via Route 2 are currently carrying Ohio River water to well pads and returning to Beech Bottom empty. Return of these trucks to the GreenHunter site loaded with flowback or produced water from Marcellus Shale well pads will not decrease the amount of truck traffic in the city of Wheeling. Additional truck traffic currently using I‐70 to access deepwater injection disposal sites in Ohio are likely to utilize the GreenHunter facility in Warwood. The additional trucks will increase, not decrease, the amount of truck traffic in Wheeling. As it currently stands, GreenHunter does not have a permit to transport concentrated waste from their recycling plant by barge. This material will have to be transported to deepwater injection sites in Ohio, resulting in another significant increase in truck traffic in Wheeling. Furthermore, the unknown contents of concentrated waste transported through Wheeling to deepwater injection sites in Ohio is the greatest concern.
II. Brinewater trucks present unknown hazards to Wheeling residents and first responders. Very little is known about the transport and handling of “flowback” and “produced” water from drilling sites. The lack of available information is largely due to oil and gas industry exemptions from the Resource Conservation and Recovery Act (RCRA). GreenHunter spokespersons are correct in saying that any materials delivered to a well site are required to include hazardous waste placards clearly identifying the contents of the trucks and Material Safety Data Sheets informing workers of potential exposures to those materials. However, despite having these requirements for transportation to the drilling site, the so called “Halliburton Exemption” provides that any materials that flow back to the surface or are produced from a well are exempt from RCRA (see the US EPA determination excerpt from the Federal Register, Attachment 1). The exemption extends to any open pit, storage tank, truck transport, and handling from flowback retrieval (i.e. once material from a well flows up to the surface) to the final disposal (i.e. deep well injection) regardless of how many times the materials exchange hands. Therefore, GreenHunter’s proposed handling by truck, storage, barge, and deep well injection are totally unregulated by RCRA. Due to this exemption Wheeling cannot depend on state or federal oversight of waste handling activities. Trucks transporting brinewater through city streets and into residential neighborhoods are not required to post placards identifying their contents. No state or federal regulatory agency is required to test or report the contents of flowback or produced water from well sites to underground injection sites (Code of Federal Regulations accessed May 30, 2013: http://cfr.regstoday.com/40cfr144.aspx). As stated by US EPA in an October 2002 (http://www.epa.gov/epawaste/nonhaz/industrial/special/oil/oilgas. pdf ) guidance document entitled Exemption of Oil and Gas and Production Wastes from Federal Hazardous Waste Regulations (EPA530‐K‐01‐004) on page 5: “Although they are relieved from regulation as hazardous wastes, the exemption does not mean these wastes could not present a hazard to human health and the environment if improperly managed.”
III. Wheeling's previous experience with shale waste resulted in community liability In a consent order dated May 9, 2011, the city of Wheeling was fined by West Virginia Department of Environmental Protection (WV DEP) for failing to enforce its Industrial User Permit Program (http://www.dep.wv.gov/pio/Documents/City%20of%20Wheeling.pdf). As reported by Wheeling Newspapers, shale wastewater from industrial user Liquid Assets Disposal on the Peninsula in Wheeling was taken in by the Wheeling Sewage Treatment Plant. The shale waste killed the microorganisms in the Wheeling Sewage Treatment Plant and "Water Pollution Control employees had complained about strong and offensive odors causing breathing difficulty and light‐headedness" (http://www.news‐register.net/page/content.detail/id/560640/Wheeling‐Fined‐For‐Taking‐Frack‐ Water.html?nav=515). The WV DEP sampled brinewater trucks entering Liquid Assets Disposal and determined the effluent limits for chlorides exceeded permitted limits. The WV DEP also sampled for other chemical constituents in the brinewater. By working with community partners in Washington County, PA, my laboratory was able to obtain the WV DEP brinewater data that was requested via the Freedom of Information Act (FOIA). We compiled the results of 13 samples of liquids and 1 sample of solids in an Excel spreadsheet (Attachment 2) and verified some of the more remarkable results verbally with WV DEP personnel. As far as we know, these are the only shale waste chemical constituent data collected by a regulatory agency that are now in the public domain. If it was not for the WV DEP authority to regulate Industrial User Permits, and for the actions of citizens in their FOIA request, there would be no such information available for the public eye.
IV. Laboratory testing indicates brine water is a threat to residents and first responders. One of the 13 samples of liquids from brine water trucks entering Liquid Assets Disposal on the Peninsula in Wheeling was a 5,000 gallon tank truck carrying pH 1.5 liquids from a frac pit at Range Resources well #37‐121‐23194 in Washington County, PA (Attachment 2). Liquids with a pH 1.5 are corrosive strong acids that if spilled form a corrosive acid mist capable of causing irreversible damage to eyes, respiratory systems, and skin. The US EPA ranks hydrochloric acid as one of the most hazardous compounds to human and ecosystem health. Because of exceptions to RCRA, brinewater trucks are not required to post placards identifying their contents. The response of GreenHunter when asked about loads like this was that "it wasn't brinewater." The data collected by WV DEP indicates that it was brinewater. Note the high total dissolved solids (16,600 mg/L) and other dissolved constituents, particularly barium, strontium, and bromide, which are fairly specific indicators of 350 million year old brinewater. When asked how they would respond to such a load, GreenHunter representatives said, "we have a pH meter" and "that truck was illegal." It takes days for a water sample to be collected, transported to an analytical laboratory, analyzed, and a report to be generated. There is no way that even the most responsible company can know what the contents of brinewater really are as they are transported , exchange hands, and delivered to their disposal destination. In my professional opinion, GreenHunter's response plan to such a load entering their facility isn't the greatest concern – what matters is that GreenHunter not be allowed to create a destination for hazardous materials in a residential neighborhood or along busy city streets. In case of an accident, the truck driver, citizens, and first responders will have no idea what the truck really contains. No testing of these materials is required, and no regulatory agency has the authority to monitor any such materials being transported from the wellhead to the eventual disposal by underground injection.
V. Laboratory testing indicates brine water is a threat to the Wheeling water supply The proposed GreenHunter facility is approximately one mile upstream from the Ohio River intake at Wheeling's Water Treatment Plant and is located in the groundwater recharge zone for Wheeling's water intake wells. We compared the brinewater data collected by WV DEP to primary and secondary drinking water quality standards. In Attachment 2, any samples that exceeded primary drinking water quality standards were flagged in red. Primary water quality standards are enforceable drinking water limits for chemicals with well known human health consequences. Primary standards are enforceable in that the US EPA can step in and order a water treatment plant to shut down or change their treatment strategy if a primary standard is exceeded repeatedly in the drinking water supply. Additionally, my laboratory flagged secondary standards in yellow. Secondary Standards are those chemical constituents that are known to cause color, odor, and taste issues in municipal water supplies. In terms of heavy metals in the brinewater samples tested by WV DEP, 7 of the 13 samples exceeded the primary drinking water quality standard for barium, which causes a wide range of adverse health effects even in small concentrations. One sample from a frac pit in Westmoreland County, PA contained 834 mg/L of barium, or 417 times the primary drinking standard. Two samples from frac pits in Washington and Greene Counties, PA, exceeded the primary drinking water standard for arsenic. In addition, one sample from a compressor station in Monongalia County, WV exceeded the primary standard for selenium. In terms of organic compounds, 4 of the 13 samples exceeded the primary standard for benzene, a known carcinogen. The sample from the previously mentioned compressor station possessed a benzene level of 1320ug/L, exceeding the benzene primary drinking water standard, 5ug/L, by a factor of 262. Additionally, one sample from the Paxton #7 well in Washington County, PA exceeded the benzene standard by a factor of 15.8. In terms of radiation, 9 of the 13 samples exceeded the drinking water standard for radium. Furthermore, 7 of the 13 samples exceeded the drinking water standard for gross alpha particles, which are a strong indicator of radioactivity. Most notably, one sample from a frac pit at the Phillips #20 site in Westmoreland County, PA yielded a gross alpha reading of 4846 +/‐ 994 picocuries per liter (pCi/L), though the drinking water standard is 15 pCi/L. In fact, the same sample had combined radium readings well over 1,000 pCi/L, a multiple in excess of 200 times the (5 pCi/L) standard. It should be noted that none of the samples triggered a response from radiation meters. In summary, all but 1 of the 13 liquid samples assessed by the WVDEP exceeded at least one primary drinking water standard. Of the 13 samples 38 primary drinking water standard were exceeded. Some of the samples of brinewater were so far in excess of drinking water standards that it seems likely that a spill in the Ohio River would negatively impact the Wheeling water intake approximately one mile downstream of the proposed facility. Likewise, a spill on the ground would be likely to eventually end up in the Wheeling water intake wells that are in the alluvium of the Ohio River floodplain.
VI. Bromides are already causing problems with Wheeling's water supply Although Bromide is not an EPA regulated chemical, the concentrations of bromide in 350 million year old brinewater may pose the greatest threat to the Wheeling water supply. Bromides interfere with pre‐chlorination during the water treatment process resulting in the formation of trihalomethanes in drinking water supplies. Trihalomethanes are a class of organic molecules called polycyclic aromatic hydrocarbons and are known cancer‐causing agents. Last week, Triadelphia, which receives its water from the Wheeling Water Treatment Plant, informed residents of excess trihalomethanes in their water supply (Attachment 3). The bromide issue has plagued the entire upper Ohio Valley region since the onset of horizontal drilling and slickwater hydrologic fracturing as detailed by Don Hopey in the Pittsburgh Post Gazette March 13, 2011 (http://www.postgazette. com/stories/news/environment/bromide‐a‐concern‐in‐drilling‐wastewater‐212188/). Bromides are a significant enough concern that the Three Rivers Quest project monitors bromide as one of ten chemical constituents at 54 various sites in the Upper Ohio Valley mainstream and tributaries. My laboratory is a partner of the Three Rivers Quest project and monitors 13 sites including the Ohio River at Pike Island. In late April, we obtained a bromide reading of 0.12mg/L at Pike Island, which exceeds the target level (<0 data-blogger-escaped-.05mg="" data-blogger-escaped-brinewater="" data-blogger-escaped-bromide="" data-blogger-escaped-for="" data-blogger-escaped-in="" data-blogger-escaped-intakes.="" data-blogger-escaped-p="" data-blogger-escaped-water="">samples collected by WV DEP ranged from a minimum of 1.29mg/L to a maximum of 525mg/L with an average of 184.7mg/L in the 13 samples. The best solution to the trihalomethane problem is to reduce bromide in the water intake supply, namely, the Ohio River.
List of Attachments Attachment 1. FEDERAL REGISTER VOL. 58, No. 53 pages 15284 – 15286 Rules and Regulations ENVIRONMENTAL PROTECTION AGENCY (EPA) Clarification, 1993. Clarification of the Regulatory Determination for Wastes From the Exploration, Development and Production of Crude Oil, Natural Gas and Geothermal Energy. Attachment 2. Results of West Virginia Department of Environmental Protection testing of brinewater trucks entering the Liquid Assets Disposal facility on the Peninsula in Wheeling, April 21 & 22, 2009. Attachment 3. Newspaper advertisement May 31, 2013 giving public notice of trihalomethane exceeding the drinking water standard in Triadelphia (Wheeling) water supply. Attachment 1. Pg. 1 Federal Register Volume 58, number 53, pages 15284 – 15286. FEDERAL REGISTER VOL. 58, No. 53 Rules and Regulations ENVIRONMENTAL PROTECTION AGENCY (EPA) 40 CFR Part 261 [FRL-4606-6] Clarification of the Regulatory Determination for Wastes From the Exploration, Development and Production of Crude Oil, Natural Gas and Geothermal Energy 58 FR 15284 DATE: Monday, March 22, 1993 ACTION: Clarification.
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SUMMARY: This document provides additional clarification of the Resource Conservation and Recovery Act (RCRA) Regulatory Determination for Oil and Gas and Geothermal Exploration, Development and Production Wastes dated June 29, 1988 (53 FR 25446; July 6,1988). This document clarifies the regulatory status of wastes generated by the crude oil reclamation industry, service companies, gas plants and feeder pipelines, and crude oil pipelines. Since this document only further clarifies the status of these wastes under the RCRA Subtitle C hazardous waste exemption discussed in EPA's 1988 Regulatory Determination, and does not alter the scope of the current exemption in any way, comments are not being solicited by the Agency on this notice.
FOR FURTHER INFORMATION CONTACT: For general information on the scope of the RCRA Subtitle C exemption for wastes from the exploration, development and production of crude oil, natural gas and geothermal energy, contact the RCRA/Superfund hotline at (800) 424-9346 (toll free) or (703) 412-9810. For technical information, contact Mike Fitzpatrick, U.S. Environmental Protection Agency OS-323W, 401 M Street, SW., Washington, DC 20460; phone (703) 308-8411.
SUPPLEMENTARY INFORMATION: Table of Contents I. Introduction II. Clarification of the Scope of the Oil and Gas Exemption A. Crude Oil Reclamation Industry 58 FR 15284 Attachment 1. Pg. 2 B. Service Companies C. Crude Oil Pipelines D. Gas Plants and Feeder Pipelines III. Administrative Procedures Act Requirements IV. EPA RCRA Docket
I. Introduction In the Solid Waste Disposal Act Amendments of 1980 (Pub. L. 94-580), Congress amended the Resource Conservation and Recovery Act(RCRA) to add sections 3001 (b)(2)(A), and 8002(m). Section 3001(b)(2)(A) exempted drilling fluids, produced waters, and other wastes associated with exploration, development, and production of crude oil, natural gas and geothermal energy from regulation as hazardous wastes. Section 8002(m) required the Administrator to complete a Report to Congress on these wastes and provide an opportunity for public comment. The Administrator was also required by section 3001 (b)(2)(A) to make a determination no later than six months after completing the Report to Congress as to whether hazardous waste regulations under RCRA Subtitle C were warranted for these wastes. EPA's Report to Congress was transmitted to Congress on December 28, 1987. In the process of preparing the Report to Congress, the Agency found it necessary to define the scope of the exemption for the purpose of determining which wastes were considered "wastes from the exploration, development or production of crude oil, natural gas or geothermal energy." Based upon statutory language and legislative history, the Report to Congress identified several criteria used in making such a determination. In particular, for a waste to be exempt from regulation as hazardous waste under RCRA Subtitle C, it must be associated with operations to locate or remove oil or gas from the ground or to remove impurities from such substances and it must be intrinsic to and uniquely associated with oil and gas exploration,development or production operations (commonly referred to simply as exploration and production or E&P); the waste must not be generated by transportation or manufacturing operations. Transportation of oil and gas can be for short or long distances. For crude oil, "transportation" is defined in the Report to Congress and the subsequent Regulatory Determination as beginning after transfer of legal custody of the oil from the producer to a carrier (i.e., pipeline or trucking concern) for transport to a refinery or, in the absence of custody transfer, after the initial separation of the oil and water at the primary field site. For natural gas, "transportation" is defined as 58 FR 15284 Attachment 1. Pg. 3 beginning after dehydration and purification at a gas plant, but prior to transport to market. To accurately determine the scope of the exemption, the reader is referred to the December 28, 1987, Report to Congress, Management of Wastes from the Exploration, Development, and Production of Crude Oil, Natural Gas, and Geothermal Energy (NTIS # PB88-146212) for the specific application of the criteria. The Agency's Regulatory Determination was published in the Federal Register on July 6, 1988 (53 FR [Page 15285] 25446). The Regulatory Determination included a list of example wastes that generally are exempt and a list of example wastes that generally are not exempt. Neither of these lists was intended to be a complete itemization of all possible exempt or non-exempt wastes. Also, because definitions of the terms used in these lists vary, the criteria identified in the Report to Congress remain the authoritative source for determining the scope of the exemption. The reader is referred to the July 6, 1988, notice for detailed background on all aspects of the Regulatory Determination.Since 1987, the terms uniquely associated and intrinsic have been used as interchangeable synonyms in various documents in reference to oil and gas wastes qualifying for the exemption from Subtitle C regulation. (For simplicity's sake, when referring to exempt wastes, this notice combines the use of these two terms into the single term uniquely associated.) 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 (e.g., waste demulsifiers, spent iron sponge). If the answer to either question is yes, the waste is most likely considered exempt. Since the Agency's Regulatory Determination, numerous requests have been received for determination, on a site-specific basis, of the regulatory status of wastes not itemized in the Regulatory Determination's list of examples. Many of these requests have dealt with broad categories of similar wastes (e.g., crude oil reclaimer wastes, service company wastes, pipeline wastes). Today's notice responds to the many requests for clarification of the scope of the exemption. II. Clarification of the Scope of the Oil and Gas Exemption A. Crude Oil Reclamation Industry The crude oil reclamation industry recovers marketable crude oil and other hydrocarbons from produced water, crude oil tank bottoms and 58 FR 15285 Attachment 1. Pg. 4 other oily wastes that are generated by the production of crude oil and natural gas. In general, the marketable crude oil is recovered from the waste materials by simple thermal and/or physical processes (e.g., heat and gravity separation). Occasionally, demulsifiers may be added to produced waters from which crude oil cannot be separated with heat and settling time alone. The typical residual materials left after removal of the crude oil by the reclaimers are also produced water and tank bottom solids. These residuals will often exhibit the same characteristics as the parent waste, although the concentrations of some constituents may vary from those in the parent. In September 1990, the crude oil reclamation industry requested that the Agency provide an interpretation of the language in the 1988 Regulatory Determination pertaining to RCRA Subtitle C coverage of wastes from crude oil and tank bottom reclaimers. (The list of "non-exempt" wastes in the Regulatory Determination included "liquid and solid wastes generated by crude oil and tank bottom reclaimers.") In particular, they requested that EPA clarify whether any wastes generated by crude oil reclaimers are included within the oil and gas exemption, particularly those originating from the crude oil itself, such as produced water and the other extraneous materials in crude oil, otherwise known as basic sediment and water (BS&W). In April 1991, the Agency responded to the request with a letter that included broad guidance on the status of wastes from the crude oil reclamation industry. (A copy of the letter is included in the docket to this notice.) EPA explained that the inclusion of "liquid and solid wastes" from crude oil reclamation on the list of non-exempt wastes contained in the Regulatory Determination was intended to refer only to those non-E&P wastes generated by reclaimers (e.g., waste solvents from cleaning reclaimers' equipment) and was not intended to refer to wastes remaining from the treatment of exempt wastes originally generated by the exploration, development or production of crude oil or natural gas. EPA's basis for this position is several-fold. First, the Agency has consistently taken the position that wastes derived from the treatment of an exempt waste, including any recovery of product from an exempt waste, generally remain exempt from the requirements of RCRA Subtitle C. Treatment of, or product recovery from, E&P exempt wastes prior to disposal does not negate the exemption. [The same principle applies to exempt mining and mineral processing wastes. See, 54 FR at 36621 (Sept. 1, 1989).] For example, waste residuals (e.g., BS&W) from the onsite or off-site process of recovering crude oil from tank bottoms obtained from crude oil storage facilities at primary field operations (i.e., operations at or near the wellhead) are exempt from RCRA Subtitle C because the crude oil storage tank bottoms at primary field operations are exempt. In effect, 58 FR 15285 Attachment 1. Pg. 5 reclaimers are conducting a specialized form of waste treatment in which valuable product is recovered and removed from waste uniquely associated with E&P operations. In addition, in many cases, product recovery or treatment reduces the volume and overall toxicity of the waste and thereby contributes to the Agency's policy and goals for waste minimization and treatment of waste prior to disposal. EPA further notes that the off-site transport of exempt waste from a primary field site for treatment, reclamation, or disposal does not negate the exemption. The change of custody criterion (which is discussed in the Report to Congress) for the purpose of defining transportation refers to the transport of product (crude oil, natural gas) and does not apply to exempt wastes moving off-site for treatment or disposal since these wastes were generated by the exploration, development or production operations and not by the transportation process. Thus, the off-site transport and/or sale of exempt oil-field wastes to crude oil reclaimers for treatment does not terminate the exempt status either of the wastes or the residuals from a reclamation process applied to these wastes. However, there are solid and liquid wastes from reclamation operations that are not exempt from RCRA Subtitle C. These are wastes which the Agency intended to refer to in its example within the 1988 Regulatory Determination. Generally, these reclaimer wastes are derived from non-exempt oilfield wastes or otherwise contain materials that are not uniquely associated with exploration, development or production operations. An example would be waste solvents generated from the solvent cleaning of tank trucks that are used to transport oilfield tank bottoms. Such wastes would not be exempt from Subtitle C because the use of cleaning solvents is not uniquely associated with the production of crude oil. Generally, crude oil reclaimer wastes that are derived from exempt oilfield wastes (e.g., produced water, BS&W) are not subject to the Subtitle C waste management requirements of RCRA. Such wastes, however, remain subject to any applicable state solid waste management requirements. Moreover, this exemption from RCRA Subtitle C requirements may not apply if the crude oil reclaimer wastes are combined with other wastes that are subject to RCRA Subtitle C requirements. [Page 15286] B. Service Companies Oil and gas service companies are those companies hired by the principal operating company to, among other things, supply materials for use at a drilling or production site or provide a service to be performed. Some of the activities of service companies take place on-site while others may take place off-site. Examples of the types of activities that may take place 58 FR 15286 Attachment 1. Pg. 6 off-site are product formulation, transport of materials, laboratory analysis, and waste handling and disposal. The 1988 Regulatory Determination stated that "oil and gas service company wastes, such as empty drums, drum rinsate, vacuum truck rinsate, sandblast media, painting wastes, spent solvents, spilled chemicals, and waste acids" are not covered by the oil and gas E&P exemption. The Agency intended this statement to identify those wastes, including unused and discarded product materials, generated by service companies that are not uniquely associated with primary field operations. (Primary field operations occur at or near the wellhead or gas plant and include only those operations necessary to locate and recover oil and gas from the ground and to remove impurities.) Similar to the reference to crude oil reclamation wastes, the Agency did not intend to imply that under no circumstances will a service company ever generate a RCRA Subtitle C-exempt waste. For example, if a service company generates spent acid returns from a well work-over, the waste is exempt since the waste acid in this case came from down-hole and was part of primary field operations. EPA is aware that some confusion exists in various segments of the industry with regard to the scope of the exemption from RCRA Subtitle C for solid wastes not uniquely associated with oil and gas exploration and production. One common belief is that any wastes generated by, in support of, or intended for use by the oil and gas E&P industry (including most service company wastes) are exempt. This is not the case; in fact, only wastes generated by activities uniquely associated with the exploration, development or production of crude oil or natural gas at primary field operations (i.e., wastes from down-hole or wastes that have otherwise been generated by contact with the production stream during the removal of produced water or other contaminants from the product) are exempt from regulation under RCRA Subtitle C regardless of whether they are generated on-site by a service company or by the principal operator. In other words, wastes generated by a service company (e.g., unused frac or stimulation fluids and waste products) that do not meet the basic criteria listed in the Report to Congress (i.e., are not uniquely associated with oil and gas E&P operations) are not exempt from Subtitle C under the oil and gas exemption, just as wastes generated by a principal operator that do not meet these criteria are not exempt from coverage by RCRA Subtitle C. The 1988 Regulatory Determination also stated that "vacuum truck and drum rinsate from trucks and drums transporting or containing nonexempt waste" is not included within the exemption (emphasis added). The unstated corollary to this is that vacuum truck and drum rinsate from trucks and drums transporting or containing exempt wastes is exempt, provided that the trucks or drums only contain E&P-related exempt wastes and that the water 58 FR 15286 Attachment 1. Pg. 7 or fluid used in the rinsing is not subject to RCRA Subtitle C (i.e., is itself non-hazardous). This is consistent with the general policy principle that certain wastes derived exclusively from RCRA Subtitle C-exempt wastes remain exempt from RCRA Subtitle C.
