The Law on Offshore Wastes Discharges in the USA

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Muddied Waters

A Survey of Offshore Oilfield Drilling Wastes and Disposal Techniques to Reduce the Ecological Impact of Sea Dumping

by Jonathan Wills, M.A., Ph.D., M.Inst.Pet., for Ekologicheskaya Vahkta Sakhalina (Sakhalin Environment Watch); 25th May 2000

The Law on Offshore Wastes Discharges in Different Jurisdictions

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USA Law on Offshore Wastes Discharges (continued)

Inviting Regulation

Despite the high public profile and considerable influence of the environmental lobby in the US, the EPA has had to frame its regulations in a political dialogue where federal and state administrations and legislatures routinely offer privileged access, special facilities and extraordinary favours to corporations, far beyond what is available to ordinary citizens of the United States. A similar but less blatant situation has existed in the UK since the early 20th century. The process has been summarised by, among others, Owen and Braeutigam (Owen and Braeutigam. 1978. The Regulation Game - Strategic Use of the Administrative Process. Cambridge, MA. Cited in Steiner, R. 1993. op. cit. ), who advised corporations to:

Invite Regulation: 'No industry offered the opportunity to be regulated should decline it.' Regulation is seen as a means of protecting industry from competition from outside and within the industry. Inviting regulation gives you the opportunity to control it.
Make strategic use of information: 'Agencies can be guided in the desired direction by making available carefully selected facts. Alternatively, the withholding of information can be used to compel a lawsuit for "production" when delay is advantageous'. Other methods of delay include over-responding to an agency request. When it is difficult to delay in responding to a particular request for information, 'the best tactic is to bury it in a mountain of irrelevant material'. Alternatively, provide information and then question its reliability and commence a series of studies to slow things down...
Make strategic use of innovation. This 'can be a crucial element in winning the regulatory game. A well-timed announcement of an innovation or technological breakthrough can moot a difficult issue which threatens to go against the firm. At a minimum, the terms of the debate may change sufficient to require the decision process to begin anew'.
Lobby the agency effectively. 'Effective lobbying requires close personal contact between the lobbyists and government officials. Social events are crucial to this strategy. The object is to establish long-term personal relationships transcending any particular issue...An official contemplating a decision must be led to think of its impact in human terms, and not institutional or organizational terms. Officials will be much less willing to hurt long-time acquaintances than corporations'.
Co-opt the experts. Identify the leading experts in relevant fields and hire them as advisers or consultants, or give them research grants. 'This activity requires a modicum of finesse; it must not be too blatant, for the experts themselves must not recognize that they have lost their objectivity and freedom of action'...
Trade-off the agencies. 'Play one agency against another', i.e. state versus federal, or one state versus another. Goals and interests of agencies often diverge; for instance, conservation versus development and 'one can court the assistance of one agency in dealing with another'.

This may appear a very cynical view of the regulatory process but, after more than 25 years of observing British and American oil corporations dealing with successive British and American Governments (and usually succeeding in their objectives), the author can state that it is, nonetheless, an accurate assessment.

In drawing up and enforcing effective legislation to protect the environment in relatively pristine areas such as the Sakhalin Shelf, it is therefore essential that lawmakers, government officials and the general public are aware of the persuasion and public relations techniques commonly employed by global corporations. This does not mean that the employees of these corporations are bad people, but it does mean that the public authorities should only employ the most rigorous, scrupulously independent experts to assess what corporations say about the feasibility and desirability of anti-pollution measures that cost them money. It is important to pay particular attention to precise translation of foreign oil and gas corporations' proposals, to avoid confusion by the kind of soothing, emollient language that is often found, for example, in environmental impact statements.

To return to the EPA: despite the limitations of excessive wordy legislation and undue influence by industry, the agency has a creditable list of achievements. For example, a recent rulemaking was expected to reduce discharges of conventional pollutants, in major waste streams of produced water, drilling fluids and cuttings, by "2,780,000 pounds [1,260 metric tonnes] per year, non-conventional pollutants by 1,490,000,000 pounds [675,859 tonnes] per year, and toxic pollutants by 228,000 pounds [103 tonnes] per year, assuming a baseline of current permit requirements. (The statutory term ``toxic pollutant'' refers to a substance identified as belonging to one of the 65 families of chemicals listed in the CWA as toxic...)" (United States Environmental Protection Agency (EPA). 1996b. op. cit) These kinds of improvement are worth having, even if the language of regulation is dense and stultifying.

Against such achievements, and the partial clean-up of the Louisiana coastline, must be listed the continuing problem in Cook Inlet and, assuming no change in regulations, in Bristol Bay and other offshore petroleum prospects on the Alaskan coast. For, as the US regulators admit:

Based on industry projections given to EPA, an average of 89,000 bbls [14,148,000 litres] drilling fluids and cuttings are generated each year (bpy) in the Inlet. Pollutants present in these wastes include chromium, copper, lead, nickel, selenium, silver, beryllium and arsenic among the toxic metals. Toxic organics present include naphthalene, fluorene, and phenanthrene. Total Suspended Solids (TSS) make up the bulk of the pollutant loadings, part of which is comprised of the above mentioned toxic pollutants. TSS concentrations are very high due to the nature of the wastes. (ibid)

To its credit, the EPA is encouraging operators in Cook Inlet and elsewhere to improve the technology of solids control equipment, such as shale shakers and cyclones, to remove contaminated drill cuttings:

Enhanced solids control systems, also known as closed-loop solids control operations, remove solids from the drilling fluid at greater efficiencies than conventional solids removal systems. Increased solids removal efficiency minimizes the buildup of drilled solids in the drilling fluid system, and allows a greater percentage of drilling fluid to be recycled. Smaller volumes of new or freshly made fluids are required as a result. An added benefit of the closed-loop technology is that the amount of waste drilling fluids can be significantly reduced.

Onshore in the US, there is no longer any question of where to put wastes. For example, BP Amoco's new Northstar project will use down-hole injection for all cuttings, muds, fluids and produced water. (ADEC informant, pers. comm.. 2000)

Thanks to the Freedom of Information Act, there is generally more openness about government information in the US than in Britain but, on the question of access to the detailed chemical composition of drilling fluids, it appears that information can be and is withheld from the public, being classified by the EPA as "Confidential Business Information" (CBI) (For details of US law on CBI, see: U.S. Code of Federal Regulations, Title 40, Part 2. Washington D.C. http://www.epa.gov/epacfr40/chapt-I.info/subch-A/40P0002.pdf ). A determined researcher with the time and resources might well test this with a series of FOIA applications, but such an undertaking is beyond the scope of the present study.

Despite the industry's obvious influence with the US authorities, not least in limiting the controls on drilling waste discharges, most American public opinion remains firmly against offshore oil and gas exploitation on the US Continental Shelf, outside the Gulf of Mexico states and Alaska (Even in that notoriously pro-development state, local support is growing for the international campaign against new drilling in Arctic coastal waters). The scale of local opposition makes expansion offshore California unlikely and the development of reserves on the narrow Pacific shelf off Oregon and Washington State unthinkable. Opponents have been far more successful in curbing global hydrocarbon corporations in the country where the oil industry began than they have been in jurisdictions such as Norway and the United Kingdom, normally thought of as "greener" and less pro-industry. The European experience is in fact more similar to Texas, Louisiana, Mississippi, Alabama and parts of Florida, which have prospered from oil for decades while trying, belatedly, to minimize the ecological damage from chronic oil spills and drilling wastes. Meanwhile, the states of the eastern seaboard, where most of the USA's remaining unexploited deposits of oil, gas and condensates lie, continue to ban offshore development - in contrast to maritime Canada, where Nova Scotia and Newfoundland have offered the corporations financial incentives. The historical reasons for this curious situation are mostly based on popular fears of pollution - particularly damage to fisheries - recently described in detail by Freudenberg and Gramling. (Freudenburg, W.R. & Gramling, R. (1994b). Oil in Troubled Waters: Perceptions, Politics and the Battle over Offshore Drilling. State University of New York Press, Albany. ISBN 0-7914-1882-0) These fears, and the federal, state and corporate response to them, are of interest when considering the arguments for and against hydrocarbon extraction (and the environmental controls imposed on it) from areas such as the Sakhalin Shelf.