Fracking fears: Green groups, officials wary of new DEP rule

Bryan Clark

MARTINSBURG –  A Department of Environmental Protection memo quietly released earlier this year is drawing the ire of solid waste officials, clean water advocates and environmentalists who say it undermines local authority and poses a threat to the environment.

The memo, released in July, allows landfills in the state to build containment units to accept unlimited quantities of solid waste produced by hydraulic fracturing — or “fracking” — operations.

This drilling waste is composed of a variety of byproducts of the drilling and fracturing process, including dirt, sand, ground shale and a mixture of chemicals used in the fracking process – some of which are carcinogenic or otherwise toxic.

Clint Hogbin, chair of the Berkeley County Solid Waste Authority, said the change in state regulatory policy has consumed a great deal of his attention in recent weeks.

    “In the past two months it went from not on my radar to the top of the list,” he said.

Hogbin said there is no evidence that Marcellus waste is currently being sent to the 68-acre LCS Landfill near Hedgesville, the only landfill in the Eastern Panhandle.

“Even though it is not being landfilled now, there is concern that it could be in the future,” he said. “The concern is that even though drilling activity does not occur in the three counties of the Eastern Panhandle, it does occur in the broader four-state region. And the material is, in fact, being landfilled in the Chambersburg/Shippensburg area, and we do get waste from Pennsylvania, Maryland and Virginia.”

Waste Management – the country’s largest waste hauler and the owner of LCS – has identified fracking waste as a major potential source of revenue, according to press releases, and has been acquiring smaller companies with experience in shale fields.

In February 2012, Waste Management acquired Reliable Environmental Transport, which offered both hazardous and nonhazardous waste hauling services to natural gas drillers. Waste Management made RET’s former president Jonathan Marks director of gas and hazardous waste services for New York, Western Pennsylvania and West Virginia.

Then in August, Waste Management bought two energy services companies with experience in North Dakota’s Bakken Shale natural gas fields.

“While we work with oil and gas customers around the country, these acquisitions give us access to an element we haven’t previously served,” said Harry Lamberton, vice president of energy and environmental services for Waste Management, in a press release. “They also add expertise that we will use in the other North American regions where we provide environmental services to oil and gas customers.”


The drilling waste loophole

The memo in question offers landfills two options for accepting drilling waste.

A landfill can expand from from a ‘Class B’ facility, which can accept less than 10,000 tons of waste per month, into a ‘Class A’ facility, which can accept up to 30,000 tons per month.

A landfill can also choose to build a separate municipal solid waste cell designated to accept only drilling waste.

The memo emphasizes several advantages associated with building separate cells, as opposed to reclassifying their facilities.

It notes that landfills choosing this route have the ability to accept unlimited quantities of drilling waste without impacting their 10,000-ton monthly dumping cap, while assessing the same fees that are associated with regular municipal waste.

It also notes that expanding a Class B landfill into a Class A landfill would require it to acquire a new Certificate of Need from the Public Service Commission. “That process necessarily involves the potential for uncertain results,” it notes.

But the memo notes building a separate cell involves a lesser regulatory burden, adding that it “would usually involve a more simple, streamlined application for amendment of an existing [Certificate of Need.]”

The drilling waste itself is subject to a loophole in federal regulations concerning dangerous materials.

The July memo notes that federal regulations contain a specific exemption for drilling waste that prevents it from being treated as a hazardous material. This exemption was carved out of the 1976 legislation that created the federal regulatory regime over hazardous waste by the Bentsen Amendment, named for Texas Democrat Sen. Lloyd Bentsen.


“It just quietly happened”

Hogbin is critical of the DEP’s lack of communication with solid waste authorities regarding the new regulations.

He points out that the DEP actually released two other memoranda earlier this year, each of which increased the amount by which landfills would be able to exceed their normal waste acceptance caps.

“All of those memos came out but were not sent to solid waste authorities,” he said. “We were not aware of those memos. The DEP established solid waste policy and did not communicate it to its 50 solid waste authorities.”

Hogbin said when the state Legislature passed rules concerning the disposal and recycling of electronics, they were accompanied by a plethora of public meetings and hearing. But none of the drilling waste memos were forwarded to the state’s solid waste authorities.

“It just quietly happened,” he said. “Legislators weren’t consulted. Solid waste authorities weren’t advised of it, and that’s offensive.”

He said it was not until the Wetzel County Solid Waste Authority discovered that dumping at their landfill was quickly accelerating that the state’s 50 solid waste authorities found out that the regulations had been changed.

Hogbin said he thinks the DEP may have exceeded its legal authority in promulgating rules that would allow landfills to accept unlimited amounts of drilling waste.

“I still am confused as to why the DEP thinks it has the statutory authority to go over these caps. I don’t believe they had that authority,” he said. “Those caps are very important in protecting the lifespan of a facility and protecting the community that lives around a facility.”

Hogbin said control over the amount of waste that landfills can accept is the primary regulatory power wielded by the state’s solid waste authorities. He said the drilling waste loophole could greatly hamper the ability of the Berkeley County Solid Waste Authority to do long-term planning.

“It totally blows away future planning of landfill space,” he said. “We know from state documents and from communications with the landfill itself that it has about 35 years of life left, but that’s at the current intake rate.”

A significant change in the intake rate, he said, could greatly shorten the landfill’s lifetime.

In Wetzel County, the monthly tonnage of waste increased nearly eightfold in only two years, with the vast majority of the growth coming from drilling waste, which now accounts for about three quarters of the waste accepted at that facility, according to documents Hogbin provided. It is currently accepting four times the normal legal limit for waste at a class B landfill as a result of the tonnage cap loophole.

Hogbin thinks it is unlikely that another local landfill site will be found once the capacity of LCS is exhausted.

“I suspect that with the growth that has gone on in the Eastern Panhandle over the last 20 years it would be very hard to site a landfill in Berkeley or Jefferson County, and maybe even Morgan County,” he said. “Even if it did occur, it would be after years of legal battles and permitting efforts.”

Losing the local landfill would mean that garbage would have to be shipped to out-of-area landfills, increasing the cost to ratepayers.

“The impact, at first, would be economic,” he said. “Garbage bills would go up. The further you have to ship it, the more it costs to get it there.”


Pollution fears

In January, SkyTruth, a Shepherdstown-based environmental monitoring organization released a report – based on the industry’s voluntarily-reported data – finding that at least one recognized carcinogen is used in about a third of fracked gas wells, and that at least one suspected carcinogen is used in 90 percent of wells. The three most common known carcinogens used are naphthalene, benzyl chloride and formaldehyde.

David Manthos, SkyTruth’s communications and outreach director and co-author of the study, said the voluntary nature of the available data and the difficulty in accessing it for bulk analysis mean that use of such chemicals could be more common than the report indicates.

“It is on a voluntary basis, and the disclosure is very weak and inaccessible,” he said, noting that – the industry’s self-reporting site – also blocks computers that try to download reports en masse. “If they detect any strain on their servers, they block the IP address.”

Manthos said that it is not only the chemicals intentionally added to a fracking well that are present in drilling waste, but also toxic chemicals found in the Marcellus shale itself.   “You have both the chemicals that are being put into the ground, and whatever chemicals that they interact with at the base level,” he said.

Dangerous chemicals found in shale deposits in varying concentrations include heavy metals like barium, chromium, lead and arsenic, and small quantities of naturally-occurring radioactive materials like uranium, radium and certain potassium isotopes.

There is disagreement in scientific studies as to whether the levels of radioactive materials found in Marcellus shale are high enough to be considered dangerous to human health. Some of the materials, like radioactive potassium, are found in foods like bananas and Brazil nuts.

Hogbin says he has not seen any studies demonstrating that drilling waste will be adequately contained at regular landfills designed for residential and commercial trash.

“I don’t think there have been any careful, thorough waste characteristic studies done that says putting that waste in a lined municipal waste landfill is the right thing to do,” he said. “What is the impact of radioactivity on liners? What is the impact of these chemicals on the liners? I have not read about that anywhere, and I don’t think anybody has.”

“I haven’t seen a study, federal or state, that says it is OK to put this stuff in a regular  landfill,” he said.


“A worse site could not have been picked”

Hogbin worries that the site of the LCS landfill makes the possibility of storing drilling waste there more dangerous.

The LCS facility sits over three major fault lines, a fact that made the initial approval of the landfill highly controversial.

Writing in 1986, Peter Lessing, head of environmental geology with the West Virginia Geological Survey, said that “a worse site could not have been picked.”

Stuart Dean, a professor of geology at the University of Toledo, warned in a letter to then-Representative Harley Staggers, Jr. that there was significant risk that pollution from the landfill could migrate through the porous limestone underlies much of the region.

“The detailed geology reveals that the strata and rock cleavage weakness planes are all inclined toward the east, providing numerous avenues for groundwater migration in that direction,” Dean warned, predicting that “the landfill will contaminate the groundwater of the Great Valley east of North Mountain.”

Ronda Lehman, president of the Blue Ridge Watershed Coalition, argued at a public hearing convened by the Berkeley County Solid Waste Authority last week that water that drains through the landfill – called “leachate” – poses a threat to the water quality throughout the local area.

“Leachate is taken from the landfills every year and put through the wastewater treatment plants in Berkeley County, and then put right back into the Opequon Creek,” she said. “Just imagine the radium-226 and all the toluene, benzene, all the lovely things that are in the fracking slurries in there as well. There is no wastewater treatment plant in the country that can take these toxins out of the water.”

The fault lines near the landfill, she argued, could spread pollutants though the groundwater.

“It’s just an open highway to the karst aquifer underneath,” she said. “And the karst aquifer in Jefferson and Berkeley counties is just like swiss cheese. Anything that you put here is going to be everywhere else really fast.”

Hogbin said he has additional concerns about the fact that the main route to the landfill via W.Va. 9 would bring the waste close to several schools.

“It passes some four schools. There have been a multitude of wrecks over the years,” he said. “If you have a wreck and you have a load of Marcellus waste turned over on the side of the road, can our local health officials handle that?”


Looking to the Legislature

In 2011, the state Legislature passed a comprehensive bill updating the state’s regulations surrounding fracking in response to the explosive growth of the industry throughout the Marcellus shale formation. That bill initiated the requirement that drilling waste be disposed of at landfills.

    “The reason the material is being landfilled is that in 2011 the legislature told the oil and gas industry that the drill cuttings had to go to a landfill,” Hogbin said. “Prior to that they were being buried in pits on the site of the drilling.”

Half of the state’s 18 landfills are now accepting some amount of drilling waste.

Hogbin argues that the state should have followed its previous practice with regard to waste from coal mining.

“Mining waste has been kept out of the municipal landfill system,” he said, explaining that mining waste is stored in designated “mono-fills” which are specialized landfills designed to handle the specific types of waste that are the bi-product of coal mining.

“West Virginia should have done this years ago, or required the industry to do this years ago, as they require in the coal industry or the electric generation industry,” Hogbin said.

Hogbin said that the Solid Waste Authority is looking into the possibility that it could use its comprehensive plan to limit or stop the dumping of fracking waste at LCS, but he said it is not clear that the board has any authority to do so. He is laying his hopes at the feet of the state Legislature, which, he noted, has enacted all the state’s regulations concerning specific classes of waste like electronics, oil, yard waste and antifreeze.

Hogbin said he has been speaking with local legislators, who were mostly as surprised to hear about the new drilling waste regulations as he had been.

“Over and over, what we heard was, ‘We didn’t know. We were unaware of that, and we are concerned about that,’” he said. “There is a real need for education on this issue.”

Hogbin said his personal opinion is that drilling waste should be kept out of the greater Eastern Panhandle – designated “Wasteshed E” by state solid waste regulators – since the area is not expected to receive the same economic benefits from the fracking boom that are expected in other areas of the state.

“My personal thought is that the landfilling of Marcellus waste should be banned in Wasteshed E because no drilling activity is occurring in this region,” he said. “There is little economic benefit to material being landfilled here.”

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