RCRA regulation 40 CFR 261.4(b)(5) states that “drilling fluids, produced waters, and other wastes associated with the exploration, development, or production of crude oil, natural gas or geothermal energy” are solid wastes that are NOT hazardous wastes. In other words, they are exempt from RCRA regulations.
The key term is “associated” or “uniquely associated” as EPA later clarified. The rule of thumb EPA uses to determine if a waste is “uniquely associated” with oil and gas exploration and production is that the waste has to meet either one of the two following conditions:
- The waste came from down hole (brought to the surface during oil, gas or geothermal energy exploration, development or production operations).
- The waste was generated by contact with the oil, gas, or geothermal energy production stream during the removal of produced water or other contaminants from the well or the product.
Based on this interpretation, the crude oil that has been releasing from the BP exploration well a mile beneath the ocean would be exempt from RCRA regulations. However, note that these are federal exemptions. Individual states are free to adopt more stringent regulations or reject the federal exemptions altogether.