Fracking waste bill has few fans

Bryan Clark

bryan@spiritofjefferson.com

CHARLESTON – A bill that would allow unlimited quantities of fracking waste to be disposed of in the state’s commercial landfills is encountering near-unanimous opposition from a coalition of county solid waste authorities, environmentalists, consumer advocates and church associations.

The current version of HB4411 allows commercial landfills, which are normally capped to accept either 10,000 or 30,000 tons of garbage per month, to accept unlimited quantities of drill cuttings without any public approval process.

Only a trade association which represents oil and gas drillers expressed support for the proposed law during a public hearing in the House Judiciary Committee on Monday.

Clint Hogbin, who chairs the Berkeley County Solid Waste Authority, said the measure fails to properly recognize that locally made decisions are important in solid waste management.

“While we are in support of the proper management of Marcellus waste … HB4411 allows the acceptance of unlimited volumes of Marcellus waste, even in regions of the state … where Marcellus drilling does not occur,” Hogbin wrote in an email. “The failure to establish tonnage caps on this waste material could very well cause these areas to become home of a new mega-landfill for Marcellus waste from many states with no local evaluation of the impact on the host community.”

An earlier version of the bill authored by the Department of Environmental Protection was more permissive. It allowed commercial landfills to accept unlimited quantities of drill cuttings by right, provided that they construct a separate disposal cell. The House Energy Committee rewrote the bill, adding requirements that landfills accepting drill cuttings install radiation detectors by 2015, as well as stating that they could not refuse to continue accepting normal municipal waste.

Charlie Burd, executive director of the West Virginia Independent Oil and Gas Association, said the drilling industry supported the bill.

“We are proud of the important and positive role that natural gas and oil production play in the economy of our state,” Burd said. “IOGA’s member companies have an interest in the availability of environmentally protective disposal options for drill cuttings and associated waste.”

Burd argued that the environmentally friendly way to dispose of these cuttings is in the state’s landfills.

“West Virginia’s commercial landfill regulations are among the strongest in the country,” he said. “Disposal of these materials in a commercial landfill will ensure that these materials are disposed of in a highly regulated, environmentally positive manner.”

But representatives of several county solid waste authorities – who are charged with local regulation and oversight of landfills and complain that they were not consulted at all when the legislation was written – argued that the bill undermines these regulations in ways that are catastrophic.

“Local control, local input on decision making processes is being left out here,” said Michael Reese of the Jackson County Solid Waste Authority.

Former deputy attorney general Silas Taylor, who represents solid waste authorities and helped to author the original 1991 legislation regulating landfills, argued that allowing them to accept unlimited quantities of drill cuttings undermines many of the powers and duties the Legislature had granted to solid waste authorities.

“The solid waste authorities became the voices of the local communities,” he said. “They were given powers and duties. Power to decide where solid waste facilities could be located within their communities and how big they could be… Duty in making that decision to hold public hearings and to consider 10 very specific criteria, including the impact on traffic, roads, historical values, recreation values – things that are important to the local community.”

Charleston Attorney Thornton Cooper, who provided representation to the Public Service Commission, called the proposed law a “wrecking ball” that would undermine these local powers of oversight.

Several speakers also aimed pointed criticism at the Department of Environmental Protection, who authored the original legislation.

“I am appalled at the thought of putting horizontal drilling waste into our local landfill,” said John Christensen of the Berkeley County Solid Waste Authority. “If the DEP finds any other properties in the waste stream going forward, we are to trust them to update the rules to include any new findings on the waste stream.

“Is this the same outfit that failed to inspect the storage tanks upstream of our water supply here in the Kanawha Valley?” he asked. “We will not trust them to do anything but what they have always done, and that it to issue allowable pollution permits to polluters.”

Bill Hughes, chair of the Wetzel County Solid Waste Authority, said that recent memos released by the body which authorized landfills to begin accepting drill cuttings in unlimited quantities had rendered local regulators powerless.

“The recent memos from the DEP undid over 20 years of standing law,” he said.

The landfill in Wetzel County is permitted to accept only 10,000 tons of municipal waste per month, but has been accepting up to 40,000 tons of drill cuttings.

Several speakers argued that the legislation would shift risks and costs that the drillers should be paying onto the public.

“Why is this not simply a part of the cost of doing business?” asked Lewisburg resident Glenn Singer.

“It externalizes the cost of fracking from a private entity to the public purse,” said Jeff Allen, executive director of the West Virginia Council of Churches. “Just as the people of West Virginia picked up the cost of Buffalo Creek, are picking up the cost of the Elk River Chemical Spill, the last thing we want to do is pick up any legacy costs from the dumping of fracking waste into our landfills, whether that be cleaning up environmental hazards or the closure of landfills due to their filling up.”

“We should not once again be allowing industry to externalize their costs to fill the people’s landfills with their waste,” added Amanda Pitzer of the Preston County Solid Waste Authority.

Many speakers also worried about the presence of naturally-occurring radioactive materials like radium and uranium, which are known to be present in small quantities in Marcellus shale.

Yuri Gorby, a professor of environmental engineering at Rensselaer Polytechnic Institute and who spent 15 years as a scientist for the Department of Energy, told lawmakers that he opposed putting radioactive materials in normal landfills. Such materials, he said, would “be subject to geophysical and biochemical processes that are poorly understood.”

He warned that leachate flowing from landfills containing drill cuttings could be a long-term threat to water resources.

Perennial Mountain Party candidate Jesse Johnson was also sharply critical of the bill.

“It is unconscionable that after the poisoning of 300,000 people in nine counties in West Virginia that we are even sitting here considering this bill,” he said.

Having cleared the House Energy Committee, the bill now faces a vote in the House Judiciary Committee before moving to the floor for a vote. If it has not been brought up for the first of three required readings by Sunday – known as crossover day – then it will not be highly unlikely to pass this session.

An equivalent Senate bill, SB474, has not made it out of its first committee. Of the original six sponsors of that bill, three have requested to have their names removed from it.

A second Senate Bill, SB594, would also allow commercial landfills to accept drill cuttings, but only upon the approval of the DEP, PSC and local solid waste authorities.

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