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New categories of Recognized Environmental Conditions mean that financial institutions must adjust their risk appetites
It’s been several months since ASTM released its new standard for Phase I environmental site assessments, E1527-13, and most consulting firms have completed their transition to the 2013 standard that replaces the 2005 version. How are things going so far?
On December 30, 2013, U.S. EPA issued a federal register notice (hyperlink http://www.epa.gov/brownfields/pdfs/fr-notice-recognize-astme.pdf), formally recognizing this standard to meet its All Appropriate Inquiries regulatory rule that provides liability protection from federal Superfund cleanup programs when an innocent landowner conducts the appropriate due diligence prior to acquiring a property. EPA intends to update its All Appropriate Inquiries rule in the near future to formally recognize the E1527-13 standard, but in the meantime both the 2005 and 2013 standards are acceptable.
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In this blog post, I’ll focus on the hazardous waste, underground injection control, and above ground storage tank regulations that apply to companies that are doing exploration and production in the natural gas industry.
Hazardous Waste Regulations The Resource Conservation and Recovery Act is the federal law that covers solid and hazardous waste management, as well as underground storage tanks. USEPA delegates the enforcement of these programs to the individual states, as long as the state programs are equivalent or more stringent than the federal program. When it comes to the exclusions discussed below, all the states that I’ve worked with have adopted the federal standard; i.e., they have chosen NOT to be more stringent. Definition of solid waste 40 CFR 261.4(a)(12)(ii) contains an important exclusion from the definition of solid waste for recovered petroleum products: Recovered oil that is recycled in the same manner and with the same conditions as described in paragraph (a)(12)(i) of this section. Recovered oil is oil that has been reclaimed from secondary materials (including wastewater) generated from normal petroleum industry practices, including refining, exploration and production, bulk storage, and transportation incident thereto (SIC codes 1311, 1321, 1381, 1382, 1389, 2911, 4612, 4613, 4922, 4923, 4789, 5171, and 5172.) Recovered oil does not include oil-bearing hazardous wastes listed in subpart D of this part; however, oil recovered from such wastes may be considered recovered oil. Recovered oil does not include used oil as defined in 40 CFR 279.1. Definition of hazardous waste 40 CFR 261.4(b)(5) contains a further exclusion from the definition of hazardous waste, commonly referred to as a Bentsen waste: Drilling fluids, produced waters, and other wastes associated with the exploration, development, or production of crude oil, natural gas or geothermal energy. This exclusion applies not only to waste fluids brought to the surface during the drilling and production processes, but also wastes that come into contact with the gas production stream, for example water used to cool drill bits. The exclusion was included in the 1980 RCRA law as part of a group of “special wastes” that required further evaluation by EPA. These wastes were temporarily exempted from the law under the Bentsen and Bevill Amendment because they were produced in very large volumes, thought to pose less of a hazard than other wastes, and were generally not amenable to the management practices required under RCRA. This exclusion from the hazardous waste definition applies during exploration, development, or production of crude oil, natural gas, and geothermal, but it does not apply to transportation, compression, or manufacturing involving these materials. Together, these two exclusions provide the oil and gas exploration and production industry a great deal of flexibility in managing drilling fluids and recovered oil, since they do not have to meet any specific requirements for storage, characterization, treatment, and disposal. USEPA has produced a detailed guidance document covering these exclusions, which can be found at the following link and provides a detailed list of waste materials that fall under the exclusion and those that do not. While some people within EPA and among environmental activist groups have stated that these exclusions need to be eliminated from the RCRA law, it’s hard to imagine these going away anytime soon. Regulation of Underground Injection of Liquid Wastes Under the federal Safe Drinking Water Act, underground injection of liquid wastes is regulated under 40 CFR Parts 144-148. Class II wells under this program are those used for oil and gas-related fluids. There are over 144,000 Class II wells in operation in the U.S., injecting over 2 billion gallons of brine every day. They fit into one of three categories:
Some states have been given authority to implement the SDWA program for UIC wells. EPCRA and Tier II reporting Under the federal Emergency Planning and Community Right to Know Act (EPCRA), oil and gas production facilities that store more than 10,000 pounds of petroleum or hazardous materials must file a Tier II report and provide information to their local and state emergency planning committees about the nature and quantity of materials stored at their facilities. In most states, submissions are now done electronically over the internet and data may be available to search at the state’s environmental agency website.  I had an opportunity recently to meet with some students involved in the Fossil Free initiative. As the New York Times reported last month (http://dealbook.nytimes.com/2013/09/05/a-new-divestment-focus-fossil-fuels/), over 300 college campuses have student-led initiatives to encourage their institutions to divest. One of my first college experiences was learning about the divestment campaigns against South African Apartheid. When I arrived at Oberlin College in 1983, there was a shanty town in the school green, and before I knew it I was drawn into an occupation of the college President’s office. I still vividly remember helping to haul food up to the occupiers on the second floor of the administration building in 5-gallon buckets and handling their waste materials -- my first waste management project! Three years later, I was working for the campus police as a dispatcher and remember the summertime sweep to remove the shanty town once and for all.
This campaign appears to be much more civilized (http://gofossilfree.org/). I had a chance to take a look at this program in more detail and had a few observations. 1. The Fossil Free campaign is very specific, targeting just 200 large resource companies, all of them publicly listed. This may present a challenge when talking with college investment committees, since most institutional investors who are actively managing their environmental, social, and governance (ESG) risks approach their portfolios with a very balanced perspective. They are considering climate impacts among a whole list of ESG issues. Oil, gas, and coal resource companies would tend to be balanced in their portfolios with renewable and other low-carbon technologies and things like energy efficiency and life cycle impacts. CALPERS is an excellent example of a large institutional investor that integrates ESG risk management into their overall approach, and they also have the best report. 2. The selection process used to identify the 200 targeted companies involved some good, fundamental research. Does it make sense for students to push for more disclosures from these 200 companies, if they are represented in their school’s investment portfolio? To me, it makes more sense to focus more on metrics for the portfolio and investment strategy. Even if a school doesn’t want to disclose at the level of individual company investments, it would be reasonable to request that they provide information on the following:
3. More reporting and transparency by colleges on their investment portfolios is inevitable, as students and alumni become more engaged and committed to ESG principles. The Calpers portfolio is an excellent example of socially responsible investment activities. This report from 2012 (http://www.irrcinstitute.org/pdf/FINAL_IRRCi_ESG_Endowments_Study_July_2012.pdf) received good media coverage and provides an excellent idea of what that reporting might look like. As it notes for Yale University, where I completed my graduate studies, Yale actually disclosed some information about its portfolio in 2009, none of the more recent endowment reports have any comparable data. From the report: The largest capital investment by any school, representing just over half of the total sustainable investments reported to STARS, is Yale University’s $1.4 billon holdings in sustainable timber, renewable energy, and clean technology. Yale highlighted its sustainable timber and cleantech investments in its 2009 endowment report. At that time, Yale touted $100 million in venture capital investments in early-stage cleantech companies and three million acres of timberlands certified by either Forest Stewardship Council or the industry-backed standards of the Sustainable Forestry Initiative. Though sustainable investing was not discussed in Yale’s 2010 Endowment Report, based on the university’s AASHE response and recent press, its investments in sustainability continue to grow. In March 2011, Yale announced an endowment investment in the Record Hill 22-turbine wind power project near Roxbury, Maine. The case of Yale highlights how alternative asset classes such as private equity and venture capital and real assets such as timber can be particularly well suited for investments in environmental sustainability. |
Marty WaltersEnvironmental Scientist Archives
March 2021
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