New Fracking Waste Regs a Good First Step

In February 2015, Environmental Advocates released License to Dump, a report delving into the amount of potentially toxic and radioactive fracking waste coming across New York’s borders from fracking states like Pennsylvania, and being dumped in our landfills with little oversight to protect our environment and public health.

If you're like me, you might be surprised to hear that New York allows fracking waste in our landfills. After all, we banned fracking because we think it will cause negative impacts to public health. And according to data provided by the Pennsylvania Department of Environmental Protection, approximately 570,500 tons of solid fracking waste and 23,000 barrels of liquid waste were dumped in our landfills between 2010 and 2015 (more waste has been accepted since our report was released)!

At the time, senior officials at the New York Department of Environmental Conservation (DEC) attacked the report and our findings. But new regulations proposed by the new DEC leadership acknowledge the problem that exists with accepting out-of-state fracking waste, and the potential for health impacts from leachate entering wastewater treatment plants unequipped to address the radium that may be in it. A number of other concerns raised within our report, as well as proposed recommendations, are also partially addressed.

The new regulations are a step in the right direction. There are some positive items. We will note, however, they do not go far enough, and the better, stronger, and sounder course of action for the new administration leading the DEC to take would be the outright ban of the disposal of oil and gas waste in New York landfills. While we are still reviewing the voluminous and very detailed regulations, and will have many questions of our own that we will be working with the DEC to get answers on, here are some interesting takeaways we have uncovered so far:

  1. In announcing the new regulations, the administration described them as changes to NYCRR Part 360 (the New York state regulation series that houses solid waste management rules). But they also extend to Part 370 (where the existing hazardous waste loophole is within state regulation that exempts oil and gas waste from being defined as hazardous). Unfortunately, the DEC chose not to close this loophole in this proposal – something we will be working with them to ensure before these rules are finalized.
  2. The new regulations require radiation detectors at all landfills that accept municipal solid wastes. This is a positive step and something we proposed in our report. The required installation of radiation detectors alone, however, overlooks the numerous other potentially hazardous chemicals that may be in fracking waste. Testing must be expanded.
  3. DEC has stated in the past that landfills are prohibited from accepting any fracking wastes besides drill cuttings (the shale pieces that come up during the drilling phase of well construction). However, we have yet to see any language in the proposed regulations that explicitly prohibit the disposal of flowback and produced fluids in landfills.
  4. We’re seeing in state regulations, for the first time, that there are concentration limits for the acceptance of NORM (naturally occurring radioactive material), which include daily background radiation readings, weekly field checks using a known radiation source, annual detector calibration, and staff training. On an interesting note, at the time we released License to Dump, DEC said this was already occurring. What is unclear is if that is correct and, if so, how regularly given the current lack of requirements.
  5. There will now be definitions for drilling waste, which DEC has never had before. When drilling waste is not defined it creates loopholes like that discussed under #1 which open the door to potentially hazardous waste going to landfills not properly equipped to handle it.
  6. Get your FOIL pen ready! There is a new requirement for waste tracking forms concerning the transport and disposal of fracking waste (and other kinds of waste). This will provide the public access to at least somewhat reliable New York data which, for too long, has been unavailable or which we’ve had to rely on other states to report.
  7. And something that could be a very good thing for activists working to keep fracking waste from being used as a road deicing agent (although some questions still remain), are that drilling fluids, flowback water, and plugging fluids are prohibited for use as a road spreader. The ban appears to apply only to waste from the Marcellus formation; gas storage brine and production brine from other wells in any other formation is accepted. The new regulations do say, however, that no brine can be used for road spreading within 50 feet of a body of water. They now require an annual report from whoever does the spreading which must include roadways, and distance and volume applied. Given that the experts at the DEC have been underfunded for years, and already struggle to provide proper oversight, the best solution is to ban oil and gas waste of any kind and from anywhere from being used as a road spreader at any location.

We know how difficult and confusing it can be for members of the public to spend the time getting deep into the weeds on technical issues like this – it’s what we do, and we will be releasing information to you and the media as we receive it!

*UPDATE*

On June 6, the state DEC just held public hearings on fracking waste regulations here in Albany, during which I presented testimony calling for New York to ban all out-of-state fracking waste. The hearings were attended by Riverkeeper, Earthworks, and more. Stay tuned!

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