At State and Federal Level, Regulators Continue to Struggle With Fracking Wastewater


The oil and gas industry often complains about the patchwork of rules that exist from state to state and county to county. They say that the rules are so variable that it’s like having to get a new driver’s license every time you drive across a state line. Public safety advocates suggest a simple fix: federal oversight of drilling. Standardize the rules. But the drilling industry recoils at the very notion.

Several recent developments illustrate exactly why. Witness the two diametrically opposed directions federal and state regulators are heading. Officials at the U.S. Environmental Protection Agency, on the one hand, are considering strengthening rules on how oil and gas wastewater is handled by classifying some of it as hazardous waste. Meanwhile, state regulators in Pennsylvania, where the most active Marcellus shale drilling is currently underway, are considering a move to loosen wastewater rules.

Pennsylvania is currently poised to enact rules that would encourage oil and gas companies to use the heavily polluted wastewater from abandoned coal mines, called acid mine drainage, instead of fresh water. While supporters of this rule change say it’s a win-win situation for the environment and for drillers, opponents of the bill say that a key incentive in the bill goes overboard and could wind up creating worse problems down the road.

Water, Water Everywhere…

In the absense of federal rules, fracking wastewater has been a perpetual problem for states across the country. An October report found the industry generates 280 billion gallons of the stuff a year, enough to flood Washington D.C. in 22 feet of the toxics-laden fluids. In Pennsylvania, state regulators, including current gubernatorial candidate and former head of the Department of Environmental Protection John Hanger, have a distinctly poor track record of ensuring that this waste is safely disposed.

Three years ago, Pennsylvania made national headlines for allowing drillers to openly and routinely dump fracking waste at local sewage treatment plants, which recent research confirmed can’t remove contaminants found in drilling waste, like heavy metals, radioactive materials and corrosive salts. State officials eventually asked drillers to voluntarily stop shipping the waste to sewage plants, but this summer, radioactive contamination was found in riverbeds downstream from industrial wastewater plants that were treating oil and gas wastewater.

In fact, states across the U.S. have consistently struggled to police the mammoth companies that make up much of the energy industry.

A 2010 report by Earthworks found that more than half of the gas wells drilled in a given year in Pennsylvania, Texas, Ohio, New York, New Mexico, and Colorado are not inspected and that when problems are found, companies often merely get warnings. When states do issue fines, the amounts are often so low that it’s cheaper for drillers to pay them than to comply with the laws. In fact, the dollar value of the gas in a single well would be enough to allow a drilling company to pay all of the fines levied against the entire industry in each state in a full year, the report found, often with money left to spare.

Fracking a Way to Cleaner Rivers?

Pennsylvania lawmakers are considering a move that critics say would make wastewater rules even more lenient. Senate Bill 411 has been promoted as a chance to use the problems left behind by one industry to help another industry today.

The state’s landscape is pocked with abandoned coal mines filled with rainwater, and every new shower or storm displaces water from those mines, now laden with acidic pyrite, iron, and and sulfur. In the 1950’s and 60’s mining companies pumped the water out of active mines, but when the miners pulled up stakes, the pumping stopped and many of the state’s rivers large and small suddenly turned a bright orange from the waste, making photosynthesis difficult for aquatic plants and clogging the gills of fish. Efforts to staunch the flow have helped improve many rivers across the state, but over 4,000 miles of streams remain polluted, and it’s estimated that cleanup would cost over $15 billion.

So it seems like a logical step to use acid mine drainage instead of fresh water to frack shale gas wells, which require millions of gallons of water per well. Stop that polluted water from entering rivers, and instead use it to frack.

But environmental advocates warn that the bill to encourage that re-use goes much too far. Drillers, they warn, would be given the same sort of exemption from pollution laws that non-profits engaged in cleanup currently have: a perpetual waiver of liability for the waste.

Right now, [companies] who use it are careful because there’s liability,” Betty Tatham told attendees at a League of Women Voters public meeting.  If the bill passes, advocates warn, there would be even less incentive for drilling companies to properly handle the waste after fracking.

Hazardous, but Exempt

Within the oil and gas industry, a cavalier attitude about the dangers of brine is common. Executives have made headlines for offering to publicly drink a glass of fracking fluid, and companies have argued that the main hazard of the waste is its high salt content.

But there is rising evidence that the mix of chemicals deliberately injected by drillers — and the heavy metals, radioactive materials and other substances like corrosive salts that the water dredges up from the deep — is toxic and can even affect future generations.

A study published in New Solutions: A Journal of Environmental and Occupational Health Policy described dozens of incidents in which fracking wastewater is believed to have harmed livestock. The Cornell Chronicle summarized some of the incidents:

A farmer separated his herd of cows into two groups: 60 were in a pasture with a creek where hydrofracking wastewater was allegedly dumped; 36 were in separate fields without creek access. Of the 60 cows exposed to the creek water, 21 died and 16 failed to produce calves the following spring. None of the 36 cows in separated fields had health problems, though one cow failed to breed in the spring.”

[In another case] “These farmers saw workers slitting the liner to decrease the amount of liquid in the impoundment in order to refill it,” said veterinarian Michelle Bamberger. “We have heard it now on several occasions.”

Perhaps out of growing concern over these sorts of dangers, there are early signs that the EPA may be making a first tentative step towards treating wastewater from the oil and gas industry as hazardous waste.

EPA officials planned to broach the topic at a recent meeting between state and federal regulators, according to a report by InsideEPA. EPA staff wanted to talk about whether a sprawling exemption for oil and gas drilling waste from hazardous material handling rules should not apply if the industry tries to treat the raw wastewater, for example, by using “recycling and re-use” methods that can increase the overall level of contaminants in the wastewate.

A 2010 petition by the Natural Resources Defense Council requested that the EPA treat all oil and gas wastewater as hazardous waste, saying that the EPA’s stance was outdated and that a range of problems — the waste’s toxicity, states’ ability to adequately police the industry, and the sheer amount of onshore drilling — have proven more severe than when EPA first decided to allow the original exemption.

The move EPA is said to be considering would be a step in the direction NRDC backed, but would leave much of the oil and gas industry’s toxic wastewater still outside the scope of strict federal hazardous waste handling laws.

Pennsylvania regulators were faced with a similar decision when the shale rush first hit their state. Internal staff emails obtained by The New York Times showed intensive industry lobbying caused the state’s Department of Environmental Protection to cave in.

Time will tell whether the EPA‘s potential move will fall prey to similar political maneuvering. But with each passing day, fracking wastewater keeps flowing. And for regulators, both state and federal, the water pressure is rising.

Photo Credit: Toxic Green Barrels, via Shutterstock.

Sharon Kelly is an attorney and freelance writer based in Philadelphia. She has reported for The New York Times, The Guardian, The Nation, National Wildlife, Earth Island Journal, and a variety of other publications. Prior to beginning freelance writing, she worked as a law clerk for the ACLU of Delaware.

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