When is hazardous waste not hazardous waste? Why when it's generated by a natural gas producer, of course. But NY has the chance to make things right.

Among the most critical of the many questions New York faces when deciding whether to open up its share of the Marcellus Shale to new natural gas drilling is what to do with the huge quantities of toxic, potentially radioactive wastewater that comes from fracked wells.

Unfortunately, the answer is – well, there are no good answers right now. That’s one of the top reasons why New York Governor Cuomo and the state legislature must take every precaution possible to make sure drilling does not move forward here unless and until it’s proven drilling – and waste disposal – can be done safely.

Top environmental regulators in Pennsylvania recently asked gas producing companies to stop sending fracking waste to wastewater treatment plants, because they weren’t adequately equipped to treat the toxic ingredients. (Drillers in PA will still be allowed to send wastewater to industrial facilities that have more stringent treatment requirements.)  Ohio just upped the ante, saying it will not renew permits for municipal facilities accepting drilling wastewater.

The primary reason toxic waste generated during gas development is allowed to be sent to the same facilities that take typical wastewater from our homes here in New York is that – despite its hazardousness – it’s not actually defined as hazardous waste under our laws. That’s right: Even if wastewater (and other wastes) generated in gas development test positive as toxic, they don’t have to be treated at hazardous waste facilities, unlike toxic waste generated in virtually any other industrial and commercial activity in the country. Gas drillers have this special loophole allowing them to avoid regulation thanks to a federal exemption that gives them an easy out on taking responsibility for their hazardous waste.  If it looks like a duck, and it quacks like a duck, well… it’s not a duck if you happen to be a gas producer.

Because this loophole is so outrageous, NRDC has asked the EPA to write new national rules to ensure that toxic oil and gas waste has to comply with hazardous waste regulations, just like other industries. More details on the toxicity of oil and gas waste, and the problems with various disposal methods are available in our letter to EPA.

But in the meantime, our neighboring states have been trying to figure out how to deal with mounting evidence that waste sent to these overburdened facilities was dumped into nearby rivers without adequate treatment. As a result, rivers are contaminated with high salt levels violating water quality standards and potentially with other contaminating components such as heavy metals, volatile organic chemicals, and radioactive materials.

Following the state’s request, PA’s gas drillers reportedly intend to do one of two things with their wastewater: recycle it in other projects or send it to Ohio, where injecting waste deep into underground disposal wells is the more common practice (as it is in most other oil and gas producing states). But there are some real problems with both of these alternatives.

Deep well wastewater injection is regulated by the U.S. EPA and is regarded by some experts as marginally better than sending waste to treatment facilities. But a Government Accountability Office study found instances of drinking water contamination from cracked or poorly plugged injection wells. (Yes, the study is a little old, but let’s not forget that industry safeguards have barely changed over the years.)

And what about the possible link between injection and earthquakes in Arkansas?  That’s not something to be taken lightly.

Recycling of fracking fluid is also iffy. While recycling is generally a good thing, because it reduces waste and conserves fresh water, ultimately there is very toxic waste left over that still needs to be disposed of somehow, but is still exempt from hazardous waste rules. In February, the New York Times reported that waste injected over and over again is typically more toxic than when it’s first used.

There are also serious questions about the energy intensity of recycling technologies (as there are with treatment technologies at industrial wastewater treatment facilities). There’s scant information available from industry about exactly what technologies they’re using to recycle wastewater.  And there’s likewise scant verifiable information from industry on how much waste is actually being recycled, since they don’t have to report those numbers.  (Some companies claim to be recycling 100% of their wastewater, while others say the high salt levels make that claim implausible – if not impossible – because of the likely corrosive effects on equipment.) Moreover, because of the lack of tracking requirements, in theory, a truck driver carrying waste to be recycled in another well could leave it in a field, and no one would be the wiser.

To cut to the chase, we simply have to find a better way to deal with these vast quantities of hazardous fracking waste before allowing any new drilling to occur. New York’s Department of Environmental Conservation is preparing a new draft review of fracking at this moment, and we sincerely hope this is one of the issues to which the agency devotes substantially more serious attention than it did last time around.

In the meantime, the New York legislature has the chance to close the enormous loophole exempting gas wastes from hazardous waste requirements.  Notwithstanding the federal loophole, the state legally can – and practically must – go farther.  Right now, there is a measure making its way through the both houses, A.7013 and S.4616, which would end special exemptions allowing the gas industry to circumvent requirements for hazardous waste. It would ensure it’s subject to the same treatment as any other hazardous waste in the state.

It’s critical that we get this law in place now, because there are reports that waste is already being shipped to New York facilities from Pennsylvania, and the pressure to take more may only increase in light of Pennsylvania and Ohio’s new prohibitions. Please tell your legislators to sponsor and support this critical legislation now.

We have a few ways you can keep up with our work online: Please visit our website at www.nrdc.org/newyork or follow us on Facebook and Twitter.

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