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DEP To Propose Changes To Coproduct Determination Process In Residual Waste Regulations; Conventional Oil & Gas Well Owners Tried To Use This Process To Legalize Road Dumping Their Wastewater

The DEP Waste Management Program announced in DEP’s Regulatory Agenda it is developing proposed changes to the Coproduct Determination process under the Residual Waste Regulations that allow a material, that would otherwise be regulated as a waste, to be used as a commercial product without any restrictions or upfront review or approval by DEP.

DEP described the changes as-- “This rulemaking proposes to amend the coproduct regulations to ensure that the efficacy of a waste for a particular use and the consistency of the process by which the waste is generated is considered and adequately demonstrated as part of a coproduct demonstration.”

DEP Press Secretary Neil Shader said “these regulatory updates will be a point of discussion before the Solid Waste Advisory Committee in the fall (October 9 SWAC meeting).”

Conventional oil and gas well owners tried to use the Coproduct Determination process [25 Pa Code Chapter 287.8] to legalize the indiscriminate disposal of their oil and gas wastewater by dumping it on dirt, gravel and even paved roads. Read more here.

So far, no conventional well owner has met all the requirements of the Coproduct process and road dumping remains illegal, however, road dumping continues wherever conventional oil and gas wells are located in Pennsylvania. Read more here.

How It Works Now

The Coproduct Determination process requires no notice to DEP or upfront approvals by DEP before a waste can be used, without restrictions, as a commercial product [25 Pa Code Chapter 287.8].

It is a self-certification process that allows anyone generating a waste to do the evaluations required in Chapter 287.8.

Those using the Coproduct process must keep the evaluations required by Chapter 287.8 on file and must submit them to DEP-- if DEP requests them.

They must also provide the documentation supporting the determination to persons selling, transferring, possessing or using the material.

A “coproduct” is defined as “A material generated by a manufacturing or production process, or a spent material, of a physical character and chemical composition that is consistently equivalent to the physical character and chemical composition of an intentionally manufactured product or produced raw material, if the use of the material presents no greater threat of harm to human health and the environment than the use of the product or raw material.”

The definition includes other factors, including “A material may not be compared, for physical character and chemical composition, to a material that is no longer determined to be waste.”

If the waste material--

-- Has the same physical and chemical characteristics as an intentionally manufactured product or raw material; and

-- If the use of the material presents no greater threat of harm to human health and the environment than the use of an intentionally produced product, by assessing and comparing its hazardous and toxic constituents with a commercial product, biological availability, routes of exposure to human and ecological receptors, and other factors.

Then the waste generator can self-certify the waste is a coproduct and it is no longer a waste and can be used without restrictions.

Under Chapter 287.9, DEP may make an industry-wide coproduct determination for a waste to be considered a coproduct if, among other conditions--

-- Chemical and physical characteristics do not vary over time;

-- Historical use of the material over an extended period of time shows it performs as an effective substitute for a manufactured product;

-- There is documentation that a market exists; and

-- There is documentation that use of the material does not violate environmental laws or regulations and does not harm or present a threat of harm to public health, safety, welfare or the environment.

What We’ve Learned

The issue of road dumping conventional oil and gas wastewater put the spotlight on some glaring holes in the Coproduct Determination process, especially for industries like conventional well owners which DEP describes as having a culture of non-compliance [Read more here].

Studies by Penn State [Read more here.] and the industry [Read more here] have shown oil and gas wastewater presents a threat to public health and the environment, especially when it is applied to the ground surface.

Under the Coproduct process, the conventional industry compared its wastewater to a “commercial product” that was pumped from other conventional oil and gas wells.

A recent Penn State study showed the “wastewater” and the “commercial product” it was compared to had the same toxicity and chemical characteristics because they were being pumped from the same source and did not meet federal requirements to be beneficially reused [Read more here]. Read more here.

The Coproduct process never contemplated a comparison between two materials that would otherwise be wastes coming from essentially the same sources.

DEP would have never known the conventional well owners were using the Coproduct process had it not been for the Oil and Gas Program requiring well owners to report how much waste they generate and where they dispose of it.

While DEP says 86% of conventional well owners fail to file annual waste generation reports [Read more here], DEP’s Waste Management Program could identify 17 well owners who used road dumping for disposal and requested copies of their Coproduct determinations [Read more here.]

DEP found none of the well owners came close to complying with Chapter 287.8. Read more here.

DEP has not said whether it has evaluated how any other industries have used the Coproduct Determination process and to what extent they complied with Chapter 287.8 requirements.

Changes That Should Be Made

DEP should consider making these changes to the regulation--

-- Exclude Materials From Similar Sources In Comparisons: Exclude from the Coproduct definition any material from the same or similar source as the proposed Coproduct;

-- Notice To DEP: Require, at a minimum, notice by waste generators to DEP they are using the Coproduct process and the waste they are considering a coproduct, what they are comparing it to, the steps they have taken to comply with Chapter 287 and the results of that analysis;

-- DEP Review/Public Notice: Require DEP to review and acknowledge each Coproduct determination submitted and publish a notice in the PA Bulletin a Coproduct determination was submitted for each waste and commercial product comparison;

-- Clear Decision Authority: Include a clear provision saying DEP has the ability to approve or reject a generator’s Coproduct determination or impose restrictions on the use of the material; and

-- User Acknowledgement/Responsibility: Require anyone using the material as a Coproduct to provide a written acknowledgement to the waste generator and DEP they understand the material is a Coproduct, they were given the opportunity to review the Determination documentation, will comply with any restrictions on its use, identify where the product was used and will take responsibility for any adverse environmental or health impacts of its use.

The two areas of change proposed by DEP in the Regulatory Agenda listing seem to be commonsense in concept-- prove the material actually works for its intended use like the product it is being compared to and an evaluation of the consistency of the process by which the waste is generated.

But, these changes would be stronger, if DEP proposed the other changes recommended here.

Resource Links:

-- Two Months: Road Dumping Conventional Oil & Gas Wastewater Continues To Surround The Home Of A Senate Witness Who Opposes The Illegal Practice [PaEN]

-- Millions Of Gallons Of Conventional Oil & Gas Wastewater Spread Illegally On Dirt Roads, Companies Fail To Comply With DEP Waste Regulations [PaEN]

-- Penn State Study: Conventional Oil & Gas Wastewater Fails To Meet Beneficial Reuse Recommendations For Use As A Dust Suppressant [PaEN]

-- DEP: 86% Of Conventional Oil & Gas Well Owners Did Not Comply With Waste Disposal, Production Reporting For 33,505 Wells In 2023 [PaEN]

-- DEP Report Finds: Conventional Oil & Gas Drillers Routinely Abandon Wells; Fail To Report How Millions Of Gallons Of Waste Is Disposed; And Non-Compliance Is An ‘Acceptable Norm’ [PaEN]

-- Senate Hearing: The Case For An Immediate, Total Ban On Road Dumping Conventional Oil & Gas Wastewater [PaEN]

-- Senate Hearing: Penn State Expert: ‘No More Research That Needs To Be Done’ To Justify A Ban On Road Dumping Conventional Oil & Gas Wastewater [PaEN]

-- Senate Hearing: First-Hand Account Of Health, Environmental Impacts From Road Dumping Conventional Oil & Gas Wastewater - ‘Inhaling Oil & Gas Wastewater 24-Hours A Day’ [PaEN]

-- Senate Hearing: 3.5 Million Gallons Of Conventional Oil & Gas Wastewater Dumped On PA Public Roads Since DEP’s ‘Moratorium’ On Dumping Started 6 Years Ago [PaEN]

-- Senate Hearing: DEP Still Evaluating The Data On Road Dumping Conventional Oil & Gas Wastewater; Asks Public To Report Road Dumping [PaEN]