The RCRA exemption: an example.

RCRA (reckra) exemption? Sounds like the Shawshank Redemption. But this is no movie. It’s a story with few evil villains and handsome heroes, but plenty of villainy and heroic struggle. It’s an illustration of how a self-destructive behavior emerges in our supposedly-free society.

How could an organized society, like the Easter Islanders or the Mayans or the Native American Anasazi, have consciously chosen actions that ultimately damaged the entire society?  Continual environmental destruction leads to collapse.  Like Jared Diamond,* we wonder whether progressive destruction is imperceptible and unintentional, or whether it is perversely wrought by people who know the consequences. Let’s try a third option: consider that widespread, permanently damaging activities might be generally unintentional due to ignorance and neglect, AND deliberately wrought by a few for temporary profit. The neglect and the drive for profit are among the many written laws and unwritten customs that comprise the nonlinear rules by which our society operates. The damaging behavior is not a set of individual acts, but an emergent characteristic of a complex social system comprised of independent actors and their nonlinear rules. Who’s to blame?  See Blog 3.

RCRA exempting what?

The federal Resource Conservation and Recovery Act (RCRA) governs the treatment and disposal of hazardous and toxic wastes in the U.S. It is administered by the federal Environmental Protection Agency (EPA). After stiff prompting by congress, in 1988 the EPA exempted wastes from oil and gas exploration and production, leaving restriction of those wastes up to the individual states. For oil, “exploration and production” (E&P) includes everything from the well to the refinery. For gas, E&P also includes the gas plant where harmful impurities like mercury and hydrogen sulfide are removed from the gas prior to delivery into a pipeline.

Drilling wastes and other wastes.

So what’s in the drilling wastes? Drilling muds, including the chemicals used in drilling and cuttings of the subsurface rock. These muds are usually a mixture of clay and water or oily fluid, with chemical additives. Deep salt beds underlie southeastern New Mexico, where drillers use saturated brine, ten times as salty as sea water, to avoid dissolution of a cavity in the salt around the borehole as the drill bit proceeds. Drilling wastes are abandoned in the pits where they are held during drilling, or sometimes spread on the ground, or sometimes hauled to special landfills. depending on state regulations (if any). Sometimes this stuff is deadly, permanently deadly if left on the land. or it might be almost harmless. Official and voluntary sampling hasn’t yet revealed a non-toxic pit in New Mexico.

Other E&P wastes include chemicals from drying the natural gas at the wellhead and the salt water (produced water) that comes up with the oil. The amount of water varies with the age of the well and its location. In New Mexico, an average of 8 to 10 barrels of salt water are produced with each barrel of oil. Produced water is usually injected into deep disposal wells. One of the problems with produced water is the leaks and breaks in the pipelines that take it from the wellheads to collective storage.

So why are petroleum wastes uniquely exempt, when wastes from other industries (except mining) are held to strict procedures by national law? Well, as the EPA declared, E&P wastes are large volume, vary in content from site to site, and would be expensive to handle by RCRA standards. I’ll agree that waste management by RCRA standards could be burdensome. I’ve done that. But I’ll also argue that EPA could have developed a set of practical and reasonable E&P regulations under RCRA. Congress, who ordered the review leading up to the exemption, would not have been pleased with a practical, reasonable set of regulations. As my friend, a leader within the industry, said, “The RCRA exemption is the holy grail of the industry.”

I spent three years on the board of  STRONGER, reviewing the regulations of the various petroleum-producing states. We could ask whether a state had a regulation, but not whether that regulation was effective. I remember questioning the adequacy of the Texas requirement for two feet of freeboard (height of berm above mud level) in a drilling pit, but the question was off-limits. It was sufficient that a rule existed. After the review, two successive storms dumped more than two feet of rain on the Texas gulf coast.

That’s the visible part of story. Regulation of E&P wastes is up to the states. As long as the regulation is kept state-by-state, the industry will divide and conquer. New Mexico developed some state standards more stringent than other states. The subsequent governor received more than $1M in campaign money and the industry wrote the replacement rules.

The invisible part of the story is oil men simply being businessmen, seeking to maximize profits and minimize costs. Our society honors that. It’s called efficiency. It’s also called “externalizing” the costs from the business onto the society at large. It’s just good business. And, particularly in the giant corporations that make more annual profits than some nations’ annual domestic product, the CEO would not keep his job if he did not maximize profits, rewarding both himself and his stockholders, while making the stock market look good. Looking good is what it’s all about.

But the larger story is not only that the industry owns the regulators, state by state. We could adjust environmental regulations in endless political battles while permanent pollution spreads on the landscape. In the larger picture, to rework the individual regulations with each new state or federal administration is like prescribing aspirin during an epidemic of smallpox without examining the cultural forces that prevent immunization.

The issue is how we define the mores of our society—what “looking good” truly means. The RCRA exemption isn’t the only sanctioned invitation for special-interest dominance. To alter a particular emergent behavior of a complex system, you must tweak an underlying rule of interaction.  (see Blog 3.)  We need to tweak the rules (the customs and expectations) about how individuals create and buy and sell influence, about the extent to which government should promote or restrict business, about how free should free enterprise be.   As it is, congress and the legislatures have become sales teams for power, the power to alter not only the spacing between individual schooling fishes, but to direct which direction the school swims.  Even if that direction leads into the sharks.

Suppose we tweaked only one rule to be thus: a corporation may do business, but not politics.  What a change!

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* Jared Diamond, Collapse How Societies Choose to Fail or Succeed, Viking, 2005