Another Loophole for the Oil and Gas Industry in the Clean Railroads Act

This post was researched and written by NRDC Legal Fellow Matthew McFeeley:

Guess what? There is another loophole for the oil and gas industry in a federal environmental law. As NRDC has reported before, over the years the industry has persuaded Congress to carve out special exceptions in our major environmental laws, including the Clean Air Act, the Clean Water Act, and the infamous “Halliburton loophole” that exempted hydraulic fracturing from the Safe Drinking Water Act. The oil and gas industry has spent billions lobbying Congress for special treatment. According to the Center for Responsive Politics, the industry spent $146 million on federal lobbying efforts in 2010 alone.

Here’s another special exemption that not many people know about: the loophole for toxic oil and gas waste in the Clean Railroads Act of 2008. Prior to 2008, a federal statute called the Interstate Commerce Commission Termination Act  (ICCTA) restricted states’ ability to enforce their environmental, health and safety regulations at solid waste transfer facilities located at railroad sites. Congress passed the Clean Railroads Act (CRA) to close this loophole, which was a good thing, because it helped states clean up sites with construction debris and other dangerous waste. But the CRA did not close the loophole all the way--instead it left the loophole open for oil and gas wastes. As a result, states still have limited authority to enforce their environmental, health or safety regulations at any facilities where oil and gas waste is transferred “by or on behalf of” a railroad.

This oil and gas loophole is now having real impacts. According to a recent article from Pennsylvania from Below, the residents of Sunbury, Pennsylvania are discovering what a dirty and risky problem the CRA loophole can be. Without warning to nearby residents or local officials, a company called Moran Industries opened an oil and gas waste transfer facility in January, 2011 at a site with an old rail connection in their neighborhood. Residents report that trucks filled with natural gas production waste now rumble through their neighborhood, where the waste is loaded onto railcars at the site before being transported to Ohio. The material looks like a combination of soil and rock, and has a strong chemical odor. The residents want answers about what is contained in the waste, but have no way of knowing if it contains hazardous chemicals. Given the presence of highly toxic substances in natural gas waste, including the naturally-occurring radioactive materials in Pennsylvania’s natural gas fields, their concern is legitimate.  

Moran claims the site is being operated by or on behalf of Norfolk Southern Railroad. The Pennsylvania Department of Environmental Protection (DEP) has been investigating the site for almost a year, but has yet to determine on whose behalf it is being operated. If the DEP finds that Moran Industries is not operating on behalf of a railroad, then the site would be subject to state regulation.  But the DEP has not made any indication when its decision will be made. Meanwhile, trucks full of oil and gas waste continue to unload at the site without oversight. 

Without any state oversight, the federal Surface Transportation Board (STB) has jurisdiction over an oil and gas waste transfer site at a railroad facility. But, according to STB staff, the agency doesn’t conduct any environmental analysis or permitting of a facility unless a new rail line is built or an old one is abandoned. So, unless the state decides to regulate, the facility in Sunbury will continue to operate without any oversight whatsoever, and the public has no information about the nature of the waste, how it is being managed, or what measures—if any—ensure the public is protected. 

NRDC has asked EPA to write new rules for all oil and gas waste because the waste can be very toxic--but is currently not subject to any hazardous waste regulations. There should not be any loopholes for this toxic waste, especially in the middle of communities.  All that spending on lobbying seems to be paying off for the oil and gas industry. But it may be costing the residents of Sunbury and similar communities dearly. Congress should close the CRA loophole—along with all other loopholes— for toxic oil and gas waste.

Thanks to Mark Szybist at PennFuture for providing us with information on this important issue and for his efforts to get the Pennsylvania DEP to regulate the facility.