Small Town USA embodies big time fracking issues in NY Governments face challenges over free speech, land rights

The Town of Sanford, N.Y., population 2,400, sits in the Delaware River watershed in the foothills of the western Catskill region. If you want to get a close up look at the moral and legal complexity of the shale gas debate, Sanford and neighboring towns and villages to the west are a good place to start. The issues pitting neighbor against neighbor here extend beyond economics and environmentalism to broad ideological interpretations of freedom.

Conflict over what can be said or can’t be said at a town board meeting, and whether the state is interfering with landowners’ rights to extract assets from their properties embody monumental questions about Constitutional rights surfacing with the shale gas story. With New York’s moratorium on shale gas development pending an environmental review in its fifth year, these interwoven conflicts are heading to court for disentanglement.

The tension between rights to exploit resources versus rights to be protected against exploitation is a familiar theme in the extraction industry, and I will get to the latest develop on that in a minute. A fight over citizens’ rights to talk about these issues at a town meeting, on the other hand, is a unique wrinkle in the shale gas debate, at least in the town of Sanford, which is on the front line of the controversy.



As recounted in Under the Surface, Sanford is the place where Town Supervisor Dewey Decker organized landowners to form a group to collectively negotiate terms to lease land during the height of the shale gas boom in 2008. The coalition of several hundred landowners agreed to a deal with XTO Energy (now part of Exxon Mobile) to lease 50,000 acres for $110 million (plus 13.5 percent royalties). The terms made many farmers, including Decker, millionaires before a well was drilled. It also served as a wake up call to the rest of the state about the stakes being put into play with shale gas development.

Since then, Sanford has been in the middle of the controversy, owing partly to its position on the edge of the New York City watershed and partly due to the money on the table that reflects the value of natural gas deposits in both the Utica and Marcellus shales underlying the region. Activists from both local and regional anti-fracking groups have made the Town of Sanford and the broader Catskill region a strategic part of their efforts to ban high volume hydraulic fracturing and, consequently, shale gas development.

In September, members of the Sanford Town Board, apparently fed up with the fracking debate, passed a resolution banning further discussion of the matter during the public comment period at town meetings. Town officials with significant financial stakes in shale gas development, meanwhile, have not been silent. Acting in the capacity of Town Supervisor (rather than landowner), Decker sent a letter to Gov. Andrew Cuomo three days before the town ban urging the state to expedite the pending health and environmental review of shale gas development, and complaining that a delay was “only empowering opponents.” Prior to that, the board passed a resolution urging the state to move forward, and rejecting calls for the town to ban fracking.

The board surely has a right to take a position, but it has put itself in a vulnerable spot with its ban on speech at town meetings. True, open meetings law allow towns certain “reasonable restrictions” to manage public comment periods. But from a journalist’s view, it will set a frightening precedent if elected officials are allowed to single out certain topics for censor, especially if those topics deal with matters of overwhelming public interest, such as shale gas development. Moreover, it’s an egregious act of bad faith when the censor targets citizens following accepted protocol in an open forum designed for their input.

Not surprisingly, the Town of Sanford speech ban is being challenged. The Natural Resources Defense Council and Catskill Citizens for Safe Energy filed a suit earlier this month asking the U.S. Court of the Northern District of New York to rule that the resolution banning fracking speech at Sanford Town meetings is a constitutional infringement because it “unlawfully bars plaintiffs’ members from speaking at Town Board meetings about a matter of substantial public interest that has generated significant political activity.” The town has until March 14 to respond to the complaint. The timing from there depends on the town's response and court's schedule, said Kate Sinding, an attorney for the NRDC.

The lawsuit against the Town of Sanford is one of many that will be playing out as various stakeholders chart new legal ground related to shale gas development. On the other side of the fence, lawyers are working on a suit on behalf of landowners, like Dewey Decker, who claim government is taking away their rights to develop natural gas under their land. As reported by Gannett’s Jon Campbell today, Dan Fitzsimmons, president of the Joint Landowners Coalition of New York, said the group is looking for four people to serve as plaintiffs in a lawsuit against the Department of Environmental Conservation. The action will argue that the state’s hold on shale gas permitting, pending the outcome of a health review with no timeline, amounts to an illegal “taking” of property rights. “The lawsuit against the state will focus on claims where the failure to grant (high-volume hydrofracking) permits has deprived landowners of all economically viable uses of their real property or interfered with reasonable investment-backed expectations,” Fitzsimmons wrote to members.

The group is represented by Binghamton attorney Scott Kurkoski, who told Campbell “we’re now recognizing that the state has no intention of ever completing the SGEIS.” Kurkoski was referring to the Supplemental Generic Environmental Impact Statement, the document that includes both the health and environmental reviews necessary to proceed. (DEC Commissioner said the review will be completed within weeks, although he would not say when or whether the state will begin issuing permits.) Kurkoski’s clients collectively own sizable parts of New York’s southern Tier that cover lucrative swaths of both the Marcellus and Utica shales. It’s where the controversy continues after four and a half years, and it will continue to keep lawyers busy into the foreseeable future.

What’s riding on the EPA’s water study in Pavillion WY Industry offensive intended to keep federal agency at bay

Technicians collect samples in Pavillion

Let the science decide the debate. Get politics out of it. We hear those directives routinely from politicians and partisans urging people to consider the risks and merits of fracking from one isolated contextual corner or another, or to never mind the broad discussion for now.

The EPA study into ground water pollution in Wyoming represents the latest example over the plasticity of scientific analysis that takes form under the heat and pressure of political forces. It’s about empirical data, what is said about the data, how exactly it is said, what is not said, and control over messages yet to be delivered that is causing confusion and serving political agendas.

The starting point of this thread is the EPA’s investigation into polluted water wells near fracking operations on the Wind River Indian Reservation in Pavillion, Wyoming. The agency issued a summary of findings in late 2011. Testing of two deep monitoring wells found:

detection of synthetic chemicals, like glycols and alcohols consistent with gas production and hydraulic fracturing fluids, benzene concentrations well above Safe Drinking Water Act standards and high methane levels. Given the area’s complex geology and the proximity of drinking water wells to ground water contamination, EPA is concerned about the movement of contaminants within the aquifer and the safety of drinking water wells over time.

Testing of two drinking wells found:

chemicals consistent with those identified in earlier EPA samples include methane, other petroleum hydrocarbons and other chemical compounds. The presence of these compounds is consistent with migration from areas of gas production. Detections in drinking water wells are generally below established health and safety standards. In the fall of 2010, the U.S. Department of Health and Human Services’ Agency for Toxic Substances and Disease Registry reviewed EPA’s data and recommended that affected well owners take several precautionary steps, including using alternate sources of water for drinking and cooking, and ventilation when showering. Those recommendations remain in place and EnCana [an operator] has been funding the provision of alternate water supplies.

The study drew fire from industry because of its explicit association of water pollution with fracking and drilling. In the interest of getting a clearer picture, the U.S. Geological Survey did follow up testing, and provided raw data with no interpretation. Not surprisingly, the EPA found that the USGS results verified the EPA’s findings, and the industry seized on inconsistencies between the data sets. The EPA results, and the methodology behind them, have continued to be a prime public target for industry representatives who claim the agency is overzealous and premature in releasing findings yet to be peer reviewed. (The agency released the findings for public comment corresponding to the peer review process.) The drilling company implicated in the EPA study, EnCana, has denied responsibility, and the industry – primarily through the efforts of the industry house organ Energy In Depth -- continues a campaign to discredit the EPA study.

The EPA association between fracking and groundwater pollution was even more newsworthy owing to the industry’s steadfast claims that fracking has never impacted water supplies. When the story broke nationally, it drew proportionately grand political responses. Republican Senator James Inhofe of Oklahoma, a ranking member of the Senate Committee on Environmental and Public Works, characterized the EPA’s determination as “part of Obama’s war on fossil fuels and his determination to shut down the natural gas production” and “not based on sound science but on political science.”

The issue of the EPA’s study of pollution in Pavallion is fundamentally about scientists trying to track and understand dangerous chemicals flowing in the ground and threatening public health. But it is also about something else. The battle is setting the stage for how the oil and gas industry will or will not be regulated in the future. Oil and gas development is exempt from federal oversight – including both the Safe Drinking Water Act and hazardous waste laws – and the industry wants to keep it that way. So do oil and gas states, which don’t want the federal government meddling in their decisions and control over exploitation of mineral resources within their borders.

Wyoming state officials, including governor Matt Mead, criticized the EPA’s conclusions and pushed for time for the state to debunk the work. In the face of the backlash, the EPA agreed to retest the wells and called on the USGS to conduct parallel tests. In an attempt to keep the political heat on, Energy In Depth last week held forth an internal EPA memo as evidence that the agency findings were misrepresented by press accounts, and some vague sense of scandal.

When the Associated Press and other outlets began breaking the story in early December, 2011, the headlines focused on the news of the day, which was that the EPA report associated the pollution in Pavillion to shale gas production.

EPA Report Links Fracking To Water Pollution… NPR
EPA: Fracking may Cause Groundwater Pollution… USA Today
EPA Implicates Fracking in Pollution at Wyoming state site… Associated Press

This week, Energy In Depth cited an email from Betsaida Alcantara, communications director for the EPA, to a string of her superiors as evidence that the press in fact got the story all wrong. The email shows that, in the wake of the political firestorm caused by the breaking story on Dec. 8 2011, Alcantara told the Associated Press editors that the headline and the word “implicates” was “unnecessarily inflammatory and irresponsible,” and she urged them to soften it.

As a newspaper reporter for 20 years, I have experienced many such situations, and it’s simply another day in the office when government officials grasp for control of a message based on the extent of the political grief it causes them. When public officials start attacking a news report not on factual errors but on the subjective levels of tone and presentation, it’s typically in the interest of damage control. That’s why in this country we generally depend on news from the Fourth Estate rather than from government outlets.

In the end, the memo from the EPA office to the AP editors points out no factual errors with the reportage, and changes nothing in the EPA’s own earlier press release of the Pavilion study, including this critical sentence: “The presence of these compounds is consistent with migration from areas of gas production.” Yet Energy In Depth is using this note from an EPA staffer as an “I told you so.”

If this is telling us anything, though, it’s the strength of political pressures brought to bear on scientists trying to do their work, and the level of noise it introduces into the system at the hands of PR spin from all sides. (I will add that it’s all part of the necessary but often messy First Amendment process by which we govern ourselves in this country.)

What bearing does the Pavillion controversy have on the future? Plenty. The EPA is in the process of reviewing national data from Pavillion and elsewhere, where available, to assess the impact of fracking on groundwater supplies. Its comprehensive report, due out next year, will set the contextual baseline for future discussion about the need for regulatory reform. The Pavillion matter will test the will of the federal government to challenge industry and states who want to preserve the status quo in their pursuit of carbon riches in more than two dozen major shale gas basins spread across the lower 48 states.

EPA officials arrive to investigate water in Dimock, Pa
Photo James Pitarresi 

In the meantime the EPA has been on the retreat in the face of political opposition stoking an anti-regulatory mood by those who portray fracking as a key to economic stimulation and national independence. Last March, the agency dropped a case against Range Resources after staff scientists traced methane contamination of a private water well to nearby shale gas operations. As reported by Energy Wire, agency administrators withdrew the complaint after former Pennsylvania Governor Ed Rendell intervened on behalf of the company, and Range refused to cooperate with future plans by the EPA to evaluate the impact of shale gas development on water.

In Dimock, Pennsylvania, the EPA found elevated levels of arsenic, barium, manganese, and methane in five of 64 private water wells – roughly 8 percent – near drilling and fracking operations. It concluded that those risks were mitigated by treatment systems installed in or planned for the homes. The mainstream press largely interpreted the EPA’s assessment of Dimock Water as an “all clear” sign, and agency officials made no attempts to dispel that characterization. Meanwhile, the EPA quietly turned the investigation of the water pollution over to the Agency for Toxic Substances and Disease Registry to analysis health impacts.

The parsing of the debate, and what is and is not said, is very much worth paying attention to. The tone coming out from the EPA regional offices tells us something about where Obama is headed with fracking in his second term. It also sets the stage for the person who Obama will choose to succeed Lisa Jackson to head the EPA. In the meantime, there is a wealth of privately-owned science – ranging from water samples to fracking recipes to waste disposal technology -- which will never see public light due to exemptions that enable non-disclosure. And the political hardball will continue. The stakes are high on all sides, so why should we expect anything else?

Albany's mixed messages fail to clarify NY fracking future

It sounded like news, but Tuesday’s announcement from members of the Cuomo administration on the fate of fracking in New York is more of the same message clouded by uncertainty and double speak.

With a deadline imminent to finalize regulations for shale gas development in the Empire State, Nirav Shah, Commissioner of the Department of Health, released a letter to Department of Environmental Conservation chief Joseph Martens regarding the status of a long-awaited health review on the safety of fracking. The review is the final piece to the state’s policy, called the Supplemental Generic Environmental Impact Statement (SGEIS), that will make or break shale gas development in New York. Shah’s tone is clearly one of caution, and he suggests that no shale gas development will begin in New York until the monumental task for determining health impacts is complete:

The time to ensure the impacts on public health are properly considered is before a state permits drilling. Other states began serious health reviews only after proceeding with widespread HVHF.

In my view, that is not the right approach for New York to take if we are serious that public health is the paramount question in making the HVHF decision. And as Health Commissioner, protecting the public health is my primary job.

The Department of Health review of the [SG]EIS is on-going. In particular we are focused on the relationship of HVHF to the health impacts of drinking water contamination, but also other areas such as air quality and community impacts.

Shah then indicates the importance of evaluating other major studies examining correlations between fracking and public health. They include a study by the EPA on how fracking affects ground water, which is not expected to be completed until next year. That all sounds good for the anti-fracking movement, and it was received with enthusiasm.

“In short, New York's shale gas extraction moratorium is still holding solid as a rock, as least for now,” anti-fracking activist Walter Hang declared to his followers. “We continue to succeed against seemingly insurmountable odds.”

But Shah’s email was really more of a yellow light than a red light, and he held forth the possibility that it may soon turn green. At the end of his letter, Shah concludes that his review will be complete “in a couple of weeks.” It’s the exact off-handed phrasing that DEC Commissioner Martens used in response to questions about the timing of the SGEIS during a hearing in front of lawmakers last week. And it’s a response that leaves plenty of room to wonder how the health department is going to incorporate the studies that Shah cites, some of which will take years to complete, into its final policy analysis in such a short time. The fact that state has not released any information about the scope or method of the health review leaves room for even more wonder.

In interviews addressing the release of Shah’s letter Tuesday, Martens encouraged the notion that a health study would not necessarily hold up permitting. Missing the deadline for regulations “is not terribly significant in my view,” Martens told WXXI’s Karen Dewitt. “We can move forward on the SGEIS and we can start a new rule making at any point in time … and we would not have to finalize the rules to consider applications.” In other words, regulations are not a necessary requirement for shale gas development, in the short term or long term. In their absence, the industry would be overseen through permitting guidelines spelled out in the SGEIS, which leave the determination of variances and compliance up to the discretion of DEC permitting officials.

The comments of Martens and Shah, taken collectively, leave plenty of room for interpretation. And sure enough, partisans both for and against fracking were quick to interpret the messages delivered Tuesday in their favor. In addition to Hang’s enthusiastic reaction, there’s this from Sandra Steingraber, an influential leader of New York’s anti-fracking movement:

We are confident that such a review will show that the costs of fracking in terms of public health are unacceptable. Commissioner Shah has indicated how important it is to do this right, which means bringing the public and New York State health experts into this process.

And there’s this from Karen Moreau, executive director, New York State Petroleum Council and a fracking supporter:

Given the DEC Commissioner’s assurances that this delay will not mean delays for issuing permits, we respect the administration’s need to finish this last study and finally come to resolution. We also know that it can and must end with a decision to move forward.

Industry attorney Tom West put a finer point on the issue in an interview with Susan Arbetter of the Capitol Press Room by declaring that the industry was better served moving forward without regulations, which he found to be too restrictive.

In the end, it’s unclear whether the news from Albany Tuesday was an attempt to assure stakeholder that officials were duly considering the protection of public health, or perhaps the first step to shed a layer of oversight that the industry did not want anyway. More likely, the events are simply a bid for more time for Cuomo, who remains uncommitted and ambivalent about fracking. We know there is one firm deadline that he faces: His first term as governor ends next year. He will surely have to make up his mind before election time…

Or not.

NY fracking policy review expected “in a couple of weeks” DEC Chief’s 11th hour testimony puts onus on health dept.

The last piece to New York’s four and a half year policy review of fracking will be completed in “a couple of weeks,” the state’s top regulator told lawmakers this week. And then what?

Martens at hearing

DEC Commissioner Joseph Martens gave a few clues but no clear answers as he responded to questions in a legislative budget hearing Monday in Albany after delivering a 14-minute summary of the Department of Environmental Conseravation’s notable activities in 2012. Speaking in front of legislators and a gallery filled with hundreds of anti-fracking activists who drew repeated admonishments from finance committee Chair John DeFrancisco to pipe down or face a prolonged recess, Martens read a prepared statement covering issues ranging from restoring coastal frontage after hurricane Sandy to land acquisition and outdoor recreation. Remarkably, his statement lacked any reference to the most controversial environmental issue facing the state: whether, when, or how to allow shale gas development to proceed. Martens left it to lawmakers to bring that subject up during the question and answer period. Although Martens answers tended to be vague, nearly two hours of questioning yielded these informational nuggets:

• The Supplemental Generic Environmental Impact Statement (SGEIS), the exhaustive policy overhaul aimed at regulating high volume hydraulic fracturing, cost “several million” dollars.

• Before finalizing the SGEIS, officials are awaiting an amendment from the Department of Health Commissioner Nirav Shah that assesses whether the DEC’s policy sufficiently covers health impacts. More information will be available after that piece is completed in “a couple of weeks,” Martens said.

• Martens said he has no idea what the Health Department amendment says, to what degree it will influence the final outcome of the DEC’s policy proposal, or whether the state will even proceed with the plan it has been working on for nearly five years.

• There are no funds in Cuomo's proposed budget for the fiscal year that starts in April to deal with fracking or the increased regulatory burden of permitting and overseeing shale gas wells.

• There has been broad anticipation that the state will release the SGEIS next week to meet a Feb. 27 deadline to finalize a set of regulations that are being developed concurrently with the SGEIS. Martens did not know whether the state would meet the deadline.

Protesters at hearing

This is where the sequence of events gets unwieldy. The regs cannot be finalized without the SGEIS. And the SGEIS cannot be complete without the health department’s assessment of the risks. The health review -- added to the overall process late last year on an ad-hoc basis in an attempt to satisfy criticism -- now takes on critical importance and political complexity.

If anything was clear in Martens testimony, it was the importance of the Department of Health in deciding the fate of New York’s fracking policy. Responding to questions about why nothing had been budgeted this year to oversee fracking, Martens again referred to the pending health department amendment: “It is really up in the air,” he said. “It was premature to include funds when we weren’t at the end of the process.” Other answers to other questions repeatedly lead him back to the health review “… It all depends on what the health review says. If it recommends additional measures, it will be difficult to get the regs finalized … We’ll have it in a few weeks and then decide where we’ll go from there ... I have to get the health report before we make any decisions about whether we move forward or not…”

But what exactly is the health review? It lacks a public scoping component, procedural outline, and any clear definition of its objective that has been publically vetted. This is a sore spot for activists. An hour and 45 minutes into the hearing, Assemblywoman Barbara Lifton complained that the scope and contents of the health study were being kept secret, and she inquired whether it would be open to public hearings before it was finalized with the SGEIS.

Lifton: .. Is the public going to have an opportunity for public comment and review..?

Martens: (smiling and repeating an earlier quip): I’m sure the public will comment on this...

Lifton: ... I’m asking you a serious question … Is there going to be legal, formal public comment on this document ..?

Martens: “I don’t know at this stage. I haven’t seen the report yet. The report could include a whole range of things. From one end of the spectrum, -- no we’re not convinced you’ve done enough [to mitigate health risks]. They could be convinced that you’ve done enough and conclude it shouldn’t happen in New York. That’s one possibility. Until I’ve seen that I’m not drawing any conclusions. There may be no need for public comment, depending on what Dr. Shah says.“

An audio file of this exchange, edited by Matt Richmond of WSKG Radio, is below.



Martens vagueness – along with his remarkable claim that he has no idea what the report might say after earlier testifying he has been working with the Department of Health on these questions for years – reflects a more general opaqueness from the Cuomo administration about the fate of fracking in New York. It is an approach that has frustrated and angered people on both sides of the issue, but anti-fracking activist have reacted most visibly.

That anger reached a boiling point just prior to Martens’ testimony. As hundreds of activists filed into the assembly hall, and officials, law makers, staffers, and media milled around the floor, Sandra Steingraber, an Ithaca College biologist, environmental health specialist, and high-profile leader of the anti-fracking movement, sought out Martens and began pressing him for information. Martens turned away and one of his staff stepped in, prompting Steingraber to raise her voice to an oratory pitch echoing through the auditorium. “We are going to open this process up because secrecy cannot protect public health. I have tried to have a conversation with you, but you don’t answer any letters, so I’m using my voice, in front of the people of New York to say we are not standing for a secret health study…” Steingraber’s continued her impromptu stumping for a full minute with no signs of stopping before she was cut short by a burly official who demanded she take a seat or be arrested. Steingraber stood her ground, continuing her castigation long enough to illustrate the organization, gumption, and leadership of a grass roots network that will surely be challenging the DEC if fracking is allowed. (Video, posted by Colleen Boland on You Tube, is embeded below)



Beyond that, anybody trying to pull any definitive information about fracking from this scene or the ensuing hearings had slim pickings. Where does this leave residents evenly divided for and against fracking (according to a recent poll), and the 20 percent who haven’t made up their mind?

First, it’s important to remember that the decision to proceed with fracking, or not, extends well beyond the bureaucratic mechanism of the review process. Ultimately, it will be made above Martens and Shah and probably by Cuomo himself, given the governor’s political stake in the game. I have written before about Cuomo’s ambivalence about fracking, and Monday’s hearing once again shows, if anything, his contimued lack of commitment.

Missing the Feb. 13 deadlines suggests the DEC will not be issuing the regs by the end of the month and the agency will have to reopen that process while enduring the groundswell of protests that go along with each hearing. But it’s critical to remember that the permitting process can begin once the SGEIS is finished, even without the regs finalized.

This gives Cuomo a lot of options. Depending on which way the political winds blow (and the status of natural gas prices) New York could release the SGEIS before or after Wednesday’s deadline. Because permitting can begin without regulations, the release of the SGEIS, whenever it comes, would technically open the path of shale gas development in New York, although it would be a rocky, narrow path along the northern Marcellus frontier. This path will be fraught with strident anti-drilling resistance, protests, legal challenges, and a bottleneck of applications handled by an understaffed agency. For established operators, it certainly would be a much less attractive route than the permitting boulevard that has accelerated drilling and fracking in Pennsylvania. But it very well could appeal to a certain breed of prospectors, speculators, innovators, and exploration companies working with relatively large swaths of unleased land and willing to take the chances to stake out and prove up new territory.

Cuomo can also hold off, given the low prices of natural gas, the lack of the political push from the pro-gassers to offset the uprising from the antis, split poles, etc. With the SGEIS pieces pretty much in place, his lack of commitment is hard to read. Certainly, as a politician, he is inclined to weigh monumental political issues against other monumental political issues, and looking at the state’s energy needs goes beyond fracking. In action and rhetoric, the governor has supported closing Indian Point and discouraging coal-burning plants. Can he place himself to the left of President Obama on energy and still maintain mainstream presidential aspirations?

At the end of Martens’ testimony Monday, the protesters stood and chanted "Not one well!" before heading to the Capitol for a rally with Steingraber and celebrities that included actor Mark Rufalo and film-maker Josh Fox. They were also joined by Arun Gandhi, grandson of Mahatma Gandhi, who sign a "pledge of resistance" to fracking and is training protesters in civil disobedience if shale gas development is permitted.

That story is taking shape and we will soon know whether or how it will unfold.

Radioactive wildcard flags fracking disposal policy... Testing plans reflect Pa.’s take-it-as-it-comes approach

Don’t worry. Fracking fluids from the Marcellus Shale are safe. We’re checking on that part about it being radioactive…

This, paraphrased, is the message the Pennsylvania Department of Environmental Protection issued in a statement late last week. And it captures the kind of regulatory dilemma-turned-PR-migraine that state agencies throughout the country face as they play a game of catch-up overseeing the burgeoning shale gas industry.

Radioactivity is one of many questions about constituents of the waste stream from high volume hydraulic fracturing (aka fracking), a technique for fracturing bedrock with a pressurized chemical solution that has made the shale gas revolution possible. Fracking waste, called flowback, contains brine, heavy metals, and unknown chemical constituents that are both introduced into well bores by operators to stimulate production and regurgitated with methane flowing from ancient reserves. Because flowback and other drilling waste is exempt from hazardous waste laws, it’s routinely handled through conventional disposal methods, where it ends up in rivers via treatment plants, dumped in landfills, buried in pits, or injected underground. The industry claims to be treating and recycling an undetermined amount of the fluids, and although that sounds good, it’s hard to know exactly what it means because recycling is voluntary and self-defined by the industry.

Reports about radioactive production waste from the Marcellus Shale – a primary pay-zone underlying much of the northeast -- have been circulating for years, but in the absence of public oversight and testing protocols, they are hard to gauge. A report by the USGS in 2011 found that high radium levels correspond with saltiness and total dissolved solids (TDS), all of which are characteristic properties of waste from Devonian shales, including the Marcellus and Utica formations underlying parts of New York, Ohio, Pennsylvania, West Virginia and Maryland. TDS is a measure of concentration of salts and other impurities dissolved in water. They are not visible to the naked eye, and they are flags for water problems apart from radioactivity.

With the onset of the Pennsylvania shale gas boom from 2008 through 2010, TDS levels spiked in major Pennsylvania watersheds, corresponding with the disposal of drilling waste to municipal wastewater plants unequipped to treat it. After TDS in the Monongahela River hit crises levels, the Pennsylvania DEP drafted new rules, under Chapter 95 of Pennsylvania’s Clean Streams Laws, to discourage the disposal of drilling waste at treatment plants by setting TDS ceilings for incoming shipments. But many plants ended up grandfathered into the old standard, and the industry found other ways around the new rule, and the problem persisted. After repeated calls for the industry to voluntarily stop taking drilling waste to municipal plants, TDS levels have recently dropped in the Mon River. But they remain high in the Alleghany. Meanwhile, standards the Corbett administration is moving to relax standards. The Pennsylvania DEP is proposing to drop Chapter 93 Water Quality Standards for the discharge of molybdenum, sulfates, chlorides, and 1-4 dioxane, in response to industry complaints that restricting the discharge of these pollutants would hurt business.

In response to concerns over radioactivity, the DEP has tested water downstream of some wastewater treatment plants, and found levels to be at or below background. Update Feb. 6: A reader has pointed out that the Pittsburgh Water & Sewer Authority also tracks levels of radiation in rivers, and has not found excessive readings at intakes to its treatment plant on the Allegheny River near Aspinwall.

Naturally occurring radioactive material (NORM) comes from many elements buried in the earth. People who live in homes with basements in the northeast are familiar with radon, which sometimes presents an exposure risk requiring mitigation systems to divert gas emitted from radioactive bedrock under the foundations. A critical factor in determining risks from radioactive fracking waste is its half-life, which measures its potency over time. There are other variables, and they tend to vary from site to site, making it difficult to uniformly characterize risks. But there is a common factor. According to the USGS report, co-authored by Mark Engle:

Produced water salinities from reservoirs in rocks of Cambrian-Devonion age in the Appalachian Basin commonly exceed 100,000 mg/L, and far exceed the salinities of many other oil- and gas-producing regions in the United States, including basins in California, the Great Plains, and Colorado Plateau. In many basins, radium activity is correlated with salinity, and particularly among samples from lithologically homogeneous reservoirs, salinity may be used as an indicator of radium activity.

In other words, where there is TDS (specifically salts), there is greater potential for radium, and Marcellus waste is highly saline.

The Pennsylvania DEP responded to these concerns last week, by announcing a plan to sample and analyze the naturally occurring radioactivity levels in flowback waters, treatment solids and drill cuttings, as well as associated matters such as the transportation, storage and disposal of drilling wastes “at dozens of sites.” Details and timing of the plan were not yet public as they are pending peer review.

Why this and why now? The study was announced after reports that fracking waste trucked to conventional landfills periodically began tripping radiation alarms.
To their credit, DEP officials are trying to stay on top of the issues. The plan would go well beyond a few data points down stream from water treatment disposal sites and include points in the industry’s poorly defined waste delivery system. Yet, the wording from one DEP overview the plan represents a kind of agency-speak that appears to try very hard to tell us a lot without telling us anything.

“Current industry practices are such that data do not indicate the public or workers face any health risk from exposure to radiation ... The data will assist in
determining the need with respect to any issues as they exist during extraction,
transportation, treatment and disposal.”

Whether or not this explanation intends to obfuscate, it’s guaranteed to raise suspicion among skeptics, especially phrases like “Current industry practices are such that data do not indicate...”

Third party reports instill little confidence:

“At present, there is no concerted effort that our Radiation Protection Program is aware of concerns measuring radium concentrations or activities in brine,” DEP spokesman John Poister was quoted in TheTimesOnLine last week . “We did some surveys years ago, but nothing’s been done that routinely measures radium production during fracking operations.”

Kevin Sunday, a spokesman for the Pennsylvania DEP, has not responded to my own calls and emails this week seeking clarification.

Concerns over hot fracking waste are not new, and they are not limited to Pennsylvania. While reporting for Gannett, I uncovered a 2008 memo from the New York State Department of Health to the Department of Environmental Conservation warning of the dangers of radio-active flowback. The memo, unreleased to the public, referenced an analysis of wastewater samples by state health officials found levels of radium-226, and related alpha and beta radiation up to 10,000 times higher than drinking water standards. Based on that finding, the Health Department urged the DEC to design a testing protocol to ensure hot drilling waste is handled and disposed of properly. "The issues raised are not trivial but are also not insurmountable," the memo concluded. "Many can be addressed using common engineering controls and industry best practices."

That is reassuring, to a degree. But what are “best practices,” exactly, and how effective are they if they are optional? For now, they are left to the discretion of operators who assure us that all is being handled properly, and to private waste plant operators who echo these reassurances. Last week I wrote about
Reserved Environmental Services, a Pennsylvania company that processes fracking waste, as chronicled by documentarian Kirsi Jansa. Plant operator Andy Kicinski tells viewers that the salty water contains no detectable levels of radiation, and the radiation in sludge is below the 140 micro-rems-per-hour that is the limit for sanitary landfills. So where is the waste coming from that is periodically tripping screening alarms at landfills, and who is checking?

Clarification and definitive answers have been hard to come by, partly because the HVHF industry is still new compared to other energy industries. Ultimately, it must be tried in the field like other emerging technologies– where kinks are naturally ironed out -- for its impacts to be fully understood. It’s success or failure hopefully will not simply be a function of conventional economics, but tied to measures put in place to protect people from dangers – not just the sensational kinds of dangers like blow-outs – but chronic and cumulative dangers of waste disposal that are often easy to brush aside or shift from place to place in the short term rush to get energy on line. As long as there are no mechanisms in place to prevent the industry from passing the cost associated with these risks onto the public, it is bound to happen at least in some instances.

Federal and state policy makers are still trying to assess these risks without appearing to be a killjoy about the fledgling industry’s promises of cheap abundant energy. During his election bid, President Obama characterized shale gas development as “a priority” and a key to energy independence. Meanwhile, in the absence of any overarching federal policy (unlike the nuclear industry) managing shale gas development and the problem of waste disposal has been left to the states, and the states are responding or not responding each in their own fashion. That sometimes includes (in the case of Pennsylvania) sending waste to other states (such as Ohio).

In coming weeks, New York State is expected to unveil an environmental review – four and a half years in the making – that should answer questions about how well the regulators have prepared to oversee the fracking waste stream (and other questions). It’s called the Supplemental Generic Environmental Impact Statement (SGEIS). Previous drafts have fallen well short of offering any kind of comprehensive plan to manage issues on the Devonian-sized scale of shale gas production in the northeast. In the absence of federal waste handling laws, and in the absence of funding for state regulatory staff to match increases in drilling beyond any historical measure, we can hope that the final version of the SGEIS will more comprehensively address what’s in the flowback, where it goes, and who makes sure it gets there. It would be good if the agency positioned itself to head off problems rather than chasing them from behind.