Striking Oil or Striking Out: An Interesting Application of RCRA to Wastewater Injection, Seismic Activity

Striking Oil or Striking Out: An Interesting Application of RCRA to Wastewater Injection, Seismic Activity

By Monica Kreymer, Staff Contributor 

The oil and gas industry has been shaking things up in Oklahoma. Experts from the United States Geological Survey claim, with virtual certainty, that the increased seismicity in Oklahoma has to do with recent changes in the way that oil and gas are being produced.[1] Specifically, these scientists identified the disposal wells for the injection of wastewater generated by hydraulic fracturing (fracking) as a catalyst of the recent earthquake epidemic.[2] Before 2009, Oklahoma experienced an estimated one-to-two earthquakes annually.[3] By late 2015, Oklahoma was identified as experiencing more earthquakes than anywhere else in the world, with more than 857 earthquakes with a magnitude of 3.0 or higher.[4] Other states in the Great Plains have also experienced earthquakes attributed to fracking and wastewater injection, but none have been as extreme as the ones in Oklahoma.[5]

One unique course of action suggested to prevent more earthquakes from fracking and wastewater injection is to bring a suit under the Resource Conservation and Recovery Act (“RCRA”). To prosecute a successful claim under the citizen suit provision of RCRA, the plaintiff must ultimately demonstrate that:

(1) the defendant was or is a generator or transporter of solid or hazardous waste or owner or operator of a solid or hazardous waste treatment, storage or disposal facility,

(2) the defendant has contributed or is contributing to handling, storage, treatment, transportation, or disposal of solid or hazardous waste, as defined by RCRA, and

(3) that the solid or hazardous waste in question may pose imminent and substantial endangerment to health or the environment.[6]

The Sierra Club has launched such a suit in the Western District of Oklahoma.[7] However, RCRA has never been used to address seismicity,[8] which leaves some people skeptical.[9] Most of the criticism stems from the endangerment provision of RCRA, because the link between wastewater injection to an imminent and substantial endangerment to health or the environment seems attenuated.[10] To address this criticism one must answer whether wastewater, which has been scientifically identified as the cause of the earthquake epidemic in the area,[11] poses an imminent and substantial endangerment to health or the environment. Relevant case law indicates “that courts should recognize that risk may be assessed from suspected, but not completely substantiated, relationships between imperfect data, or from probative preliminary data that is not yet certifiable as fact.”[12] Other relevant case law also indicates a delineation that plaintiffs need not establish incontrovertible imminent and substantial harm to health and the environment.[13]

Relating to immediacy, the Supreme Court has held that the endangerment provision requires that the endangerment threatens to occur immediately.[14] Lower courts have explained that the imminency requirement does not require that the harm will occur immediately, but that the risk of the harm is immediately present.[15] Metaphorically speaking, the imminency requirement does not require that a ticking bomb be seconds away from exploding, it only requires that such a bomb exist. In places like Oklahoma, where the frequency and magnitude of earthquakes has been increasing exponentially, such an imminency requirement would likely be fulfilled.

Additionally, such a plaintiff must also show that the imminent endangerment posed to the environment and to the health of U.S. citizens is substantial. Because there has never been a RCRA case involving wastewater injection and induced seismic activity,[16] this becomes a more difficult argument. The most obvious argument relates to endangerment of the health of the people: it is well known that earthquakes are an inherent threat to human life,[17] and the threat of catastrophe grows as Oklahoma’s seismic activity becomes stronger.[18]

Arguments relating to the endangerment of the environment are more difficult because environmental risks may vary by location, and because many variables relating to environmental consequences remain relatively unknown. However, this does not mean that the risk to the environment in Oklahoma is insubstantial. Take, for example, Cushing, Oklahoma. Cushing is home to the largest oil storage facility in the world.[19] Officials and federal scientists at the Department of Homeland Security were recently alarmed by the seismic activity near Cushing, and concluded that an earthquake with a magnitude of 5.7 could cause serious damage to the oil tanks and pipelines.[20] The aftermath of such damage “could cause serious environmental damage, raise the risk of fire and other natural disasters and disrupt the flow of oil to refineries nationwide.”[21] The vice chairwoman for the state’s oil and gas regulatory body says that the potential for an earthquake event in Cushing is among her greatest concerns and that “[Cushing is] the eye of the storm.” [22] Although some measures have been taken to prevent wastewater injection in certain areas near Cushing,[23] a 5.8 magnitude quake shook the town of Pawnee, Oklahoma in September of 2016, just twenty-six miles away from Cushing.[24] Furthermore, Oklahoma faces a 40% risk of another major earthquake event in 2017.[25]

Using RCRA to address wastewater injection and seismic activity in places like Oklahoma will likely prove to be a difficult legal argument because of the novelty of the assertion, the traditional use of the statute, the unpredictable nature of earthquakes and their various consequences, and the relationship of RCRA with other relevant laws as applied to wastewater injection.[26] The question remains whether the courts will opt to shake things up and apply RCRA to wastewater injection and seismic activity, or if such an assertion is just another judicial rumbling.

[1]                 Rivka Galchen, Arrival of Man-Made Earthquakes, The New Yorker (Apr. 13, 2015), http://www.newyorker.com/magazine/2015/04/13/weather-underground.

[2]                 Id.

[3]                 Robinson Meyer, Could Scott Pruitt Have Fixed Oklahoma’s Earthquake Epidemic?, The Atlantic (Jan. 18, 2017), https://www.theatlantic.com/science/archive/2017/01/scott-pruitt-and-oklahomas-manmade-earthquakes/513437/.

[4]                 Lorraine Chow, It’s Official, Oklahoma Experiences More Earthquakes than Anywhere Else in the World, EcoWatch (Nov. 16, 2015, 3:47 PM), http://www.ecowatch.com/its-official-oklahoma-experiences-more-earthquakes-than-anywhere-else–1882119660.html; see also Meyer, supra note 3 (Oklahoma experienced 857 earthquakes with a magnitude of 3.0 or higher in 2015).

[5]                 See Meyer, supra note 2. Other states in the Great Plains have different geological characteristics that reduce the risk of major earthquake events after wastewater injection. The rock in Oklahoma varies because it can absorb wastewater for years without showing it. Over time, this buildup fluid pressurizes entire formations and causes deep faults to unclamp and slip. Id.

[6]                 Christie-Spencer Corp. v. Hausman Realty Co., 118 F.Supp. 2d 408, 419 (S.D.N.Y., 2000) (quoting Prisco v. A& D Carting Corp., 168 F.3d 593, 608 (2d Cir. 1999).

[7]                 Complaint at 1, Sierra Club v. Chesapeake Operating LLC, No. 5:16-cv-00134 (W.D. Okla. Feb. 16, 2016).

[8]                 W.J. Kennedy, Sierra Club’s Legal Theory in Frackquake Case Draws ‘Star Trek’ Comparison, Forbes (March 31, 2016), https://www.forbes.com/sites/legalnewsline/2016/03/31/sierra-clubs-legal-theory-in-frackquake-case-draws-star-trek-comparison/#7f9cd0c9118e.

[9]             Id.

[10]            Id.  

[11]               See Galchen supra note 1.

[12]               Interfaith Community Organization v. Honeywell Int’l, 399 F.3d 248, 260 (3d Cir. 2005) (internal quotation omitted).

[13]               Christie-Spencer Corp, 118 F. Supp. 2d at 419.

[14]               Meghrig v. KFC Western, 516 U.S. 479, 480 (1996).

[15]               See Raytheon Co. v. McGraw Edison Co., 979 F. Supp. 858, 863 (E.D. Wis.. 1997).

[16]               Kennedy, supra note 8.

[17]                Top Ten Deadliest Earthquakes in History, NBC News, http://www.nbcnews.com/id/42029974/ns/world_news-asia_pacific/t/top-deadliest-earthquakes-history/#.WJJjRjsmfNU (last visited Feb. 1, 2017).

[18]               There have not been any deaths from earthquakes in Oklahoma, yet.

[19]               Karl Torp, Cushing Oil Storage Facility Approaching Capacity, News 9 (Feb. 16, 2016), http://www.news9.com/story/31236870/cushing-oil-storage-facility-approaching-capacity.

[20]               Sierra Club, supra note 7 at 13-14.

[21]               Michael Wines, New Concern Over Quakes in Oklahoma Near a Hub of U.S. Oil, NY Times (Oct. 14, 2015), https://www.nytimes.com/2015/10/15/us/new-concern-over-quakes-in-oklahoma-near-a-hub-of-us-oil.html (quoting Dr. McNamara, a research geophysicist at the National Earthquake Information Center.).

[22]               Id.

[23]               Id.

[24]               5.8 Magnitude Earthquake 14 KM from Pawnee, OK., Earthquake Track, http://earthquaketrack.com/quakes/2016-09-03-12-02-44-utc-5-8-5 (last visited Feb. 1, 2017).

[25]               Meyer, supra note 3.

[26]           The traditional use of the statute, and the relationship of RCRA with other relevant laws are outside of the scope of this article.

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