"It would have been crippling to U.S. oil and gas production," said Lee Fuller, vice president of government relations for the Independent Petroleum Association of America. Fuller was a former staff member for the Senate Environment and Public Works Committee, whose ranking member at the time, the late Texas Sen. Lloyd Bentsen, led the fight against the hazardous waste rule. "So yes, the industry was very aggressively seeking some mechanism to address those consequences."
Bentsen had won the industry a temporary reprieve in 1980 by persuading Congress to redefine any substance that resulted from drilling – or "producing" – an oil or gas well as "non-hazardous," regardless of its chemical makeup, pending EPA study. In 1988, the EPA made it permanent, handing oil and gas companies a landmark exemption. From then on, benzene from the fertilizer industry was considered hazardous, threatening health and underground water supplies; benzene derived from wells for the oil and gas industry was not.
The effect was that the largest waste stream headed for underground injection, that from the oil and gas industry, was exempted from one of the most effective parts of environmental rules governing hazardous waste disposal.
"A blanket exemption without any sense of what the actual chemistry of these wastewaters is, is very concerning," said Briana Mordick, a geologist at the Natural Resources Defense Council.
Other protections also began to unravel, widening the gap between Class 1 and Class 2 well regulations. Both regulators and the industry regularly refer to drilling waste as "salt water" even though, according to a 2002 EPA internal training document obtained by ProPublica, "on any given day, the injectate of a Class II-D well has the potential to contain hazardous concentrations of solvents, acids, and other… hazardous wastes."
Once the wastes were defined as nonhazardous, there was little justification for holding Class 2 wells to the same rules as other waste being injected deep underground.
Today, for example, Class 1 wells for hazardous waste are tested for pressure continuously and are supposed to be inspected for cracks and leaks every 12 months. Oil and gas wells – though the goal is to inspect their sites annually – have to be tested only once every five years.
Injection wells are known to cause earthquakes, so Class 1 wells usually have rigorous seismic and geologic siting requirements. Often, Class 2 wells do not. An EPA staff member might spend an entire year reviewing an application for a new hazardous waste well. Class 2 wells are often permitted in bulk, meaning hundreds can be green-lighted in a matter of days.
Where Class 1 hazardous waste is injected, companies have to inspect a two-mile radius for old wells, making sure contaminants will have no avenue to shoot back up into drinking water aquifers or to the surface. The minimum standard for oil and gas companies is to inspect within 400 yards, even though it is widely believed, according to internal EPA memorandums obtained by ProPublica, that such a rule is arbitrarily defined, runs against "much existing evidence" and "may not afford adequate protection" of drinking water.
EPA officials acknowledge that their Class 1 regulations represent the best practices to keep water safe and that the risk of a Class 2 well leaking is no different than the risk of a Class 1 well leaking. The contrast in regulations reflects "varying legal authorities, not varying levels of confidence," an agency spokeswoman wrote in an email, referring to the mandate not to let environmental rules interfere with the nation's drilling progress.