October 2, 2014

By David Hasemyer and Zahra Hirji, InsideClimate News

NORDHEIM, Texas—School Superintendent Kevin Wilson tugged at his oversized belt buckle and gestured toward a field less than a mile from Nordheim School, where 180 children attend kindergarten through 12th grade.

A commercial waste facility that will receive millions of barrels of toxic sludge from oil and gas production for disposal in enormous open-air pits is taking shape there, and Wilson worries that the ever-present Texas wind will carry traces of dangerous chemicals, including benzene, to the school.

"Many of these students live outside of where they could be exposed," said Wilson, a contemplative man with a soft Texas accent. "But we are busing them to the school, putting them in the direct path of something that could be harmful to them. It makes you think: Are we doing what's best for the students?"

Along with Nordheim's mayor and other angry residents, Wilson is trying to stop the 204-acre facility, but he faces an uphill battle. In Texas, as in most states, air emissions from oil and gas waste are among the least regulated, least monitored and least understood components in the extraction and production cycle. Although the wastewater and sludge can contain the same chemicals used in hydraulic fracturing and other processes—chemicals known to affect human health—little has been done to measure waste emissions or determine their possible impact on nearby residents.

This gap can be traced to decisions Congress and the U.S. Environmental Protection Agency made decades ago, when oil and gas producers lobbied hard to get most of their waste exempted from federal hazardous waste regulations.

Nordheim School Superintendent Kevin Wilson surveys the site of a proposed oil and gas waste facility. (Credit: Eleanor Bell, Center for Public Integrity)

In 1988 they succeeded, even though a 1987 EPA study concluded that 23 percent of the waste samples the agency had collected contained one or more toxic compounds at levels 100 times higher than is considered safe for humans. The EPA estimated that without the exemption, 10 to 70 percent of oil and gas waste could be considered hazardous.

Still, the report recommended granting the exemption. The expense of disposing of so much hazardous waste would slow U.S. oil and gas production, the authors said. And there weren't enough hazardous waste facilities to handle that much waste.

For the industry, and for people who live and work near commercial waste facilities, the distinction between hazardous and non-hazardous waste is critical when it comes to air quality.

Pits at hazardous waste sites must be covered—open-air pits are not allowed. Even the transfer of the waste is done through pipes, so emissions don't escape into the air. The EPA requires some type of air monitoring, too.

Pits at non-hazardous facilities, in contrast, allow chemicals in the waste to evaporate directly into the atmosphere. States decide how and where facilities are built and what, if any, monitoring systems they must have. A recent EPA review of oil and gas waste regulations in 27 states, including Texas, Pennsylvania and Colorado, found that none had rules requiring regular air monitoring at commercial solid waste facilities.

Nathan Richardson, an assistant professor of environmental law at the University of South Carolina who studies waste rules, said most states, including Texas, focus on safeguarding ground and surface water, protecting wildlife, keeping out trespassers and restoring land after pits are closed. "None of it that I remember has to do with air," he said.

Travis County Assistant District Attorney Patricia Robertson, the environmental crimes prosecutor for the Texas Environmental Enforcement Task Force, has been frustrated for years because the federal exemption makes it almost impossible to prosecute waste facilities for anything more serious than dust or foul odors, which are considered nuisances under Texas law.

"Until the law is changed, people might be exposed to what ordinarily might be considered hazardous waste," Robertson said.

James Langhorne, chief operating officer of Inland Environmental, a disposal facility south of Houston, bristles when he hears criticism of waste disposal facilities: "We follow the standards set by the people elected to set those standards."

Last year, U.S. Rep. Matthew Cartwright, a first-term Democrat from Pennsylvania, drafted a bill that would remove the industry's hazardous waste exemption, which he said is based not on science but on the industry's successful lobbying. But all of the bill's 70 co-sponsors are Democrats, and the bill is stuck in the Subcommittee on Environment and the Economy.

"I don't expect it will be an easy fight, but it's the right thing to do," Cartwright said.

The hazardous waste exemption has saved oil and gas producers huge amounts of money.

When the EPA was considering the exemption in 1987 it estimated that treating the waste as hazardous could result in $700 million to $4.5 billion in extra costs to consumers.

An executive with a national waste disposal company said that disposing of hazardous waste can cost up to three times as much as disposing of non-hazardous waste, depending on the composition of the load and other factors.

Bill Keffer, a visiting professor of law at Texas Tech University School of Law and a former state legislator, said that if the industry's waste were re-classified, the ripple effects would be felt from industry boardrooms to the gas pumps.

"What makes economic sense now to develop these new [shale] plays might not make economic sense once this new expense is factored in," said Keffer, who once worked as a corporate lawyer for gasoline-producer ARCO. "So removing the exemption could have a chilling effect on future development."

Alex Mills, president of the Texas Alliance of Energy Producers, said local economies would suffer if production declined, and the cost of electricity produced by gas-powered generating plants would go up. "The unintended consequences would be very far reaching," he said.

But David Brown, a toxicologist and adjunct professor of applied ethics at Fairfield University in Connecticut, said using a standard cost-benefit analysis when people's health may be at risk shows that society has lost its moral compass.

"Someone is putting a value on human life and saying the benefit to the larger society justifies the risks to people," Brown said.

"We have to look deeply at why people's lives place second in this analysis."