Thursday, October 10, 2013

Western NY brine plant becomes emblem of fracking flap Town officials: negotiations between industry, DEC secret

Update Oct. 21 New York state officials will hold a forum in early November to address community concerns and questions about the status of the failed Akso salt mine and related pollution and treatment operations. Representatives from DEC and the State Attorney General’s Office will lead a discussion by technical experts at Geneseo University, Newton Lecture Building, on Nov. 6 from 6:30 p.m. – 7:30 p.m., followed by a public comments and questions. DEC spokesman Peter Constantakes said the forum is a result of concerns expressed by local officials about the future of brine treatment operations to protect water supplies in Livingston County.

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Shortly after the Marcellus Shale gas boom began in 2009, a tanker truck delivered 3,000 gallons of fracking waste from a Pennsylvania drill site to a treatment plant in a rural community outside of Rochester, New York. The delivery – a drop in the bucket by shale gas standards  -- was an experiment. The plant was designed to treat waste leaching from an imploded salt mine in the Town of Leicester -- the product of a mandate from the New York DEC after the geological catastrophe in 1994.  The mine’s owner, AkzoNobel, ever vigilant of costs of the ongoing operation and ways to reduce or offset them, is now negotiating terms with the DEC to shut the plant down. Meanwhile, interested parties have considered the potential to repurpose the plant – which employs 15 people and is running far under capacity -- to receive fracking waste. In that regard, the 3,000-gallon test was a success, at least in the minds of those eager to see the plant remain in operation, or perhaps even dismantled and moved to Pennsylvania.

Some of these facts, which I confirmed this week through an informed source speaking on the condition of anonymity, are just coming to light at town and county meetings as residents try to piece together something they feel has a lot to do with their well-being: the status and future of a treatment plant that was originally built to protect their aquifer from the threats of brine leaking from a failed salt mine, and now being considered for decommission or possibly as a source for fracking waste.

The mine collapse that started it all was a major event that ruined water supplies and swallowed significant portions of the landscape. In a recent overview of the dilemma, Gannett’s Steve Orr aptly describes lingering associations:

People can't help but remember the sinkholes, land subsidence, a creek that disappeared underground and basements suddenly filled with explosive methane, the closed roads and ruined bridge that marked 1994 and 1995 in western Livingston County.

Orr also summarizes the conclusions of conflicting geological reports -- one by a U.S. Geologic Survey researcher and the other by a consultant in Albany -- regarding the consequences of shutting down the treatment operation after more than 15 years. Without the treatment, the salt will drain into a deep aquifer not currently used as a fresh water source. There is a debate whether the current quality of the aquifer justifies saving it from the discharge, and whether it might in fact be a necessary source of freshwater in the future.

It’s about the aquifer, but the DEC’s handling of the situation behind closed doors represents a broader political issue: the degree local governments trust the state’s ability, willingness, and sincerity in openly overseeing environmental protection in the face of industry interests. Perhaps nowhere is this issue hotter than with shale gas development.

Town of Leicester supervisor Lisa Semmel was among a small party of local officials who met with staff from the DEC and the Attorney General’s office last month. It was here she first learned of Akzo’ negotiations with the state to close the treatment plant, she said, but she could get details. The state officials asked her to keep the meeting confidential, she added, a request that she finds unacceptable. “We’re not keeping it quiet any longer because they are not giving us any answers,” she told me this week. “We’re kept in the dark, like everybody else.” Semmel is especially concerned about the implications of the undisclosed delivery of fracking waste at the plant – which she learned through a report last month in the Genessee Sun.

The production of shale gas from a single well produces millions of gallons of flowback  -- liquid waste that contains additives and naturally occurring hazardous substances including metals, solvents, chemicals, radionuclides, and various dissolved constituents. But its most obvious ingredient is brine, which can foul fresh water systems if not removed before the effluent is discharged into rivers and streams. Because drilling waste is exempt from federal hazardous waste laws, operators can run flowback through conventional treatment and desalinization plants not equipped to remove hazardous waste.

New York currently has a moratorium on shale gas production due to unknowns about its impacts on health and environment. But a lack of a stated policy on waste imports from Pennsylvania, an air of secrecy regarding the health department’s current evaluation of health risks, and general difficulty local officials are experiencing in prying loose information have encouraged town boards to challenge the state’s qualifications to oversee the industry in the best interest of the public. For these reasons, and questions over the state’s handling of the Leicester treatment plant in particular, the Avon Town board passed a resolution last month to re-impose a 12-month moratorium on natural gas exploration and extraction.

Avon Town Supervisor David Lefeber, quoted by Genessee Sun reporter Josh Williams, explained it this way:  “Since we talked about this operation [hydrofracking], we thought the State was going to issue permits, the State was going to monitor things, the State was going to make sure that our resources are protected … Businesses come and go, but our ability to produce food and have fresh water is a huge thing and somebody’s got to protect that.”

Avon’s resolution is one of more than 170 bans imposed or considered by municipalities statewide, and the validity of many of them rest on the outcome of a landmark case now before the state’s Court of Appeals testing jurisdictional limits of shale gas regulation known as Home Rule. (More on that here.) After five years, the state is yet to finalize its own policy on permitting shale gas development. Although Gov. Andrew Cuomo’s administration is not allowing fracking until its review is complete, it has not prohibited the importation of fracking waste from other states.

In response to my email query this week, DEC spokesman Peter Constantakes said Akso and its insurance carrier, Zurich, want to discontinue operations to treat the discharges from the ruins of the salt mine in Leicester, which they characterize as “impractical and not cost-effective,” The DEC is considering a monetary settlement for the plant’s closure, but no decision has been made. Constantakes did not address whether the plant could be repurposed for fracking waste.

Robert Middaugh, a spokesman for New York State Attorney General’s Office, said Akso is planning to dismantle the plant, and he knew of no plans to process fracking waste there. The AG’s office has been in touch with county officials about the plant’s status, he added, and has asked that only matters dealing with litigation be kept private.

Those matters could be varied, numerous, and far reaching, of course, and it’s hard to reconcile this vague answer with the claim from local town officials telling reporters they are being kept in the dark, including this in the Genessee Sun from Jim Campbell, an attorney who represents the Towns of Avon, Leicester and York:

These towns are justifiably concerned that the State and the DEC are attempting to delay this information from being made available to the public … Our concern is that the ink might already be dry on a deal between the New York State Attorney General, the DEC, and Zurich. Such a deal could have profound impacts for Livingston County and should only be considered after adequate dissemination of the facts and an opportunity for public input.

“We need a public discussion of exactly what’s going on,” Livingston County Administrator Ian Coyle told me this week. He has asked DEC officials to hold a hearing on the matter in a school or auditorium. He is still waiting for a response.

While the politically explosive option of allowing the Leicester plant to process fracking fluid may be off the table (or not), it’s hard to know exactly what’s going on behind the scenes. If the state has allowed this kind of testing for one plant, what about others? The current draft of the Supplemental Generic Environmental Impact Statement – the state’s pending overview of permitting considerations for high volume hydraulic fracturing -- identifies 130 municipal waste treatment plants in appendix 21 that have equipment that makes them eligible for fracking waste permits.

Liquid waste from gas production is just one part of a much broader metric. Shale gas development also produces solid waste, including drill cuttings tinged with varying degrees of metals, solvents, and naturally occurring radio active material (NORM) from deep in the ground. Like flowback, this waste is also exempt from federal hazardous waste handling laws, and at least four New York landfills are accepting it under protocols designed for industrial waste: Hakes Landfill in Painted Post, the Chemung Landfill near Elmira, Seneca Meadows Landfill in Waterloo and the Allied/BFI Waste Systems landfill in Niagara Falls. According to figures compiled by Fractracker (which compliles industry reports filed with the state) operators in Pennsylvania imported 29,662 tons of solid waste and 6,000 gallons – a relatively small amount -- of fracking fluid to New York destinations in the first half of 2013.

There are incentives and rationale for accepting waste from shale gas operations: It has to go somewhere; it is an unpreventable byproduct of cheap energy that we all use; it is not perceived as dangerous; it is handled appropriately and sufficiently as industrial waste; and it can generate millions of dollars of revenues for municipalities and private companies as part of the larger economic incentive for shale gas development.  But given the tenacious and organized resistance that has stalled fracking in New York, it will be a hard political sell for most New York communities to knowingly allow the importation of Pennsylvania fracking waste under incomplete and seemingly discretionary state policy and it’s growing reputation for secrecy. Yet, as things stand, it remains a legally viable option, one that does not require public hearings, and one that is difficult to track.


  1. Outstanding Tom. You won the MJB Environmental Journalism Award. It's not worth the bytes of storage this comment takes up on Blogger's server. But hey take it as a win.

    If this is old information, please take it for what it is. When groundwater remediation comes to a point of diminishing returns or no more cleanup is occurring for the effort ($) put into it, the US EPA and state agencies have defined this condition as "technical impracticability" (TI)." There use to be a number of hurdles to jump over to demonstrate this. I'm not familiar with DEC enough to know if and how IT is. TI may apply to projects regardless of federal and state regulatory oversight. Well, that use to be the case. Here's a primer on the subject.

    1. Michael, Very helpful context and added depth, as usual. I believe this is relevent to this specific case.Thanks.

  2. Great information tom, Prosperous farmers mean more employment, more prosperity for the workers and the business men of every industrial area in the whole country.

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