Vol. 15, No. 2 — January 31, 2013
With oil and gas drilling rigs increasingly dotting our landscape, the news media and the public have expressed deep concerns about well casings, hydrofracking chemicals, final frack water disposal and more. But perhaps the biggest risk to our groundwater — and safe clean drinking water — is in plain sight, and no one seems to be paying attention.
Through a series of regulatory accommodations to the oil and gas industry on both the federal and state level — and a failure by Pennsylvania to address regulatory gaps that were created long ago — waste that would ordinarily be considered hazardous is very likely being disposed at oil and gas well sites across Pennsylvania without any notice to the public. And it's perfectly legal.
Tougher standards for burying your own trash
The Pennsylvania Solid Waste Management Act (PASWMA) categorizes all wastes into three categories: municipal, residual and hazardous. Pennsylvanians generate about 20 million tons of residual, 11.7 million tons of municipal and .4 million tons of hazardous waste.
Municipal waste is basically household trash. All municipal waste must be disposed at a landfill or other facility permitted by DEP. Municipal waste landfills must be constructed and operated in a detailed manner — the operator must provide security, the trash must be covered on a daily basis, there must be two synthetic liners, leachate must be collected and treated, there must be a way to detect and collect leaks that escape the liner system, and groundwater wells must be regularly monitored to ensure that no pollutants escape the landfill. If you disposed of household trash improperly, say, by taking a couple of bags of trash, wrapping them in a plastic bag, and burying them in your backyard, you would face severe penalties under the PASWMA — both fines and potential criminal sanctions.
Hazardous waste is a special category of waste that must be managed properly during its entire lifespan — from cradle to grave — because the waste possesses a characteristic that has been determined to increase disease or death in humans, or poses a substantial hazard to public health and the environment. For this reason, anyone who generates any solid waste must typically perform tests or use their knowledge of the process to determine whether the waste is hazardous, and if it is, every movement of that waste must be tracked until it is properly disposed. Wastes such as spent solvents, battery acid, lithium batteries and products containing mercury are considered hazardous wastes.
The third category of waste, residual waste, is any industrial waste that is not hazardous. Residual waste may be quite nasty for public health and the environment, but it is not regulated as strictly as hazardous waste. Types of residual waste include flyash from coal fired power plants, pesticides, foundry sand, various types of sludge, and oil containing PCBs.
According to DEP, Pennsylvania disposes of its residual waste in a number of different ways, including using 71 residual waste landfills permitted by the agency. But DEP points out that much of the residual waste generated in Pennsylvania is processed or disposed at the facilities where it is generated — such as fly ash landfills owned and operated by power plants.
DEP's website states, "Just as commercial facilities are required to have permits to ensure compliance with laws and regulations, these company-owned facilities also must be permitted."
This statement is not only inaccurate, it masks serious questions about whether Pennsylvania is allowing the widespread disposal of unmonitored oil and gas wastes at well heads where the waste is generated — that will eventually threaten drinking water supplies across the state.
Dump, Baby, Dump!
DEP flatly states that on-site residual waste landfills operated by commercial facilities generating residual waste must be permitted by DEP. This implies that there is an application process that proposes a location for the facility, engineering drawings that describe how the facility will be constructed, samples of waste that will be disposed at the facility, and an entire system of precautions such as groundwater monitoring and inspections designed to protect the public and environment. But for oil and gas well sites, nothing could be further from the truth.
DEP regulations, adopted before the onset of shale gas development, allow owners and operators of oil and gas wells to dispose of any residual waste at the well pad site — let's repeat that — any residual waste, including contaminated drill cuttings, so long as the operator follows a simple set of rules such as: the landfill must be 200 feet from any building; the waste must be wrapped in a single plastic liner; the liner must be "folded over" so that water does not penetrate the waste; the liner must not be punctured; and the waste must be more than twenty inches above the seasonal high groundwater table. That's right — a single plastic liner and twenty inches of soil separates industrial oil and gas wastes from Pennsylvania's fresh groundwater, which we all rely on for drinking water.
There is no permit application submitted to DEP for these landfills. There is no public participation or discussion of location. There is no review by DEP engineers or geologists. There is no requirement that the facilities be inspected. There is no need to sample or document what waste is dumped in the landfill. Operators are supposed to sample leachate from the waste, but the sample results need not be submitted to DEP. And there is no long-term groundwater monitoring to find out if and when the waste starts contaminating fresh groundwater. It is not even clear whether DEP has a comprehensive list of which oil and gas sites contain these residual waste landfills.
How Can That Be?
How can DEP prohibit an individual from digging a hole and burying a bag of household trash on their property without a permit, but allow oil and gas companies to bury industrial waste about Pennsylvania at well pads without a permit and the public involvement that comes with that process?
It seems illogical, but the PASWMA simply does not require a permit for the disposal of residual waste. For municipal and hazardous waste, the PASWMA plainly states that it is unlawful to dispose of those types of waste without a permit; but for residual waste the law simply requires that it be disposed in a way "authorized by the rules and regulations of the department." This fine distinction in the law is what allows DEP to publish standards on the disposal of residual waste from the oil and gas industry at well pads across the state without involving the public or property owners in those individual decisions. So long as oil and gas companies dispose of the waste in compliance with the very few standards in DEP's oil and gas regulations, they have complied with the PASWMA by disposing of residual waste as "authorized by the rules and regulations of the department."
The Coup de Grâce
The kicker comes courtesy of the federal government. Beginning in 1978 with an EPA proposal, and concluding with a legislative amendment in 1980, Congress exempted wastes generated from oil and gas "exploration and recovery" activities from hazardous waste rules under the Resource Conservation and Recovery Act ("RCRA"). Originally intended to cover drilling muds and production brines, the list of wastes covered by the exemption was eventually expanded to include any wastes derived from exploration, development, or production of crude oil and natural gas. For gas operations, this meant that wastes generated by activities intended to develop or produce gas at the well head were no longer subject to RCRA. As EPA's own literature points out, E&P waste was exempted because of the process that generated the waste, and not because the waste was not hazardous or toxic to human health and the environment. EPA warns that these wastes are often hazardous and toxic, and for that reason they should be managed with considerable care.
Missing the threat in plain sight
Much thought and time is being devoted to assessing the threat of hydro-fracturing rock thousands of feet below useable drinking water in Pennsylvania. Congress has mandated that EPA conduct a comprehensive assessment of the possible risks of fracking on public health and the environment. EPA is considering whether underground injection of contaminants should continue to be exempted from the underground drinking water program. And DEP has promulgated an impressive set of regulations proscribing how wells must be constructed in order to fracture rocks to produce shale gas. And all the while, we seemingly ignore a simple rule: Newton's rule of gravity.
We exempt hazardous and toxic waste from the program that is designed to regulate the disposal of waste that is hazardous to human health and the environment; we promulgate regulations that allow the disposal of this waste across Pennsylvania only twenty inches above fresh drinking water; we don't require permits or the protections that we apply to the disposal of simple household trash; and we close our eyes to monitoring these waste disposal sites — during which the law of gravity never stops its work.
In Silent Spring, Rachel Carson observed: "It is ironic to think that man might determine his own future by something so seemingly trivial as the choice of an insect spray." Fifty years later, we continue to make those choices. And we seem to be getting no wiser about it.
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