FEDERAL & STATE OIL AND

GAS LAWS TA N I A G A L L O N I & A L I S A C O E

Federal Statutes:

• Safe Drinking Water Act (SDWA) - Underground Injection Control (UIC) program

• Resource Conservation and Recovery Act (RCRA) – hazardous waste requirements

• Clean Air Act

• Clean Water Act

Safe Drinking Water Act

• SDWA adopted in 1974: Its Underground Injection Control

provisions aim to protect groundwater aquifers that may supply public drinking water systems. Prohibits underground injection of fluids where they endanger Underground Sources of Drinking Water

• Endangerment means potential migration of fluid into USDWs with contaminants that could cause violation of primary drinking water standards or adversely affect people’s health.

• EPA didn’t consider Hydraulic Fracturing to be Underground Injection. But as fracking and unconventional drilling became more common, Legal Environmental Assistance Foundation, Inc. v. EPA, 118 F.3d 1467 (11th Cir. 1997): holds Hydraulic Fracturing meets plain language definition of Underground Injection.

Halliburton exemption

• 2005 Energy Policy Act: exempts hydraulic fracturing from definition of underground injection unless diesel used

Resource Conservation and Recovery Act: exemption from hazardous waste regulation

• RCRA: “cradle to grave” management of hazardous wastes; restrictions on land disposal

• 1980 Bentsen amendment and 1988 EPA determination exempted exploration and production wastes

Clean Air Act • Oil and Gas Industry is large source of

methane and VOCs, including air toxics.

• Question of what counts as a “source” since these operations may spread over miles

• New operations to be aggregated

Cuyahoga River Catches Fire (1969)

Clean Water Act

• No discharges of waste water directly to surface waters allowed in eastern states.

• EPA creates effluent limitations preventing discharges to municipal sewage treatment plants

• Oil and gas sites exempted from some stormwater permitting requirements

Wetlands Regulation

• Section 404 of the Clean Water Act: Prohibits the discharge of dredged or fill material into “navigable waters” unless authorized by a permit issued by the U.S. Army Corps of Engineers

• “Navigable waters” is defined as “waters of the United States.”

• But what counts?

Rapanos v. United States, 547 U.S. 715 (2006)

• Court splits on how to interpret

• Courts of Appeal split on which test to apply

Continuous Surface Connection

“ ‘[T]he waters of the United States’ include only relatively permanent, standing or flowing bodies of water[, such as] ‘streams,’ ‘oceans,’ ‘rivers,’ ‘lakes,’ and ‘bodies’ of water ‘forming geographical features’” and thus includes “only those wetlands with a continuous surface connection to bodies that are ‘waters of the United States’ in their own right.”

Significant Nexus

CWA covers “if the wetlands . . . significantly affect the chemical, physical, and biological integrity of other covered waters more readily understood as ‘navigable.’”

EPA Steps In

• New Rule to provide clarity

• Several court challenges

• Waiting on 6th Circuit Court of Appeal

Other federal laws/exemptions

• NEPA

• Endangered Species Act

• National Historic Preservation Act

• CERCLA

State Regulations

• Exploration & Drilling Permits

• Water Use Permitting

• Environmental Resource Permit

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