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Health & Fitness

Fracking Waste Ban is About Prudence, Not Protectionism

On May 12, 2014 the Senate passed the Fracking Waste Ban bill (S1041/A2108), 32 to 5. Now it's the NJ Assembly's turn to vote for banning the “treatment, discharge, disposal, or storage of wastewater, wastewater solids, sludge, drill cuttings or other byproducts from natural gas exploration or production using hydraulic fracturing.”

This is the second time around for NJ - the Senate and Assembly both passed a similar bill in 2012.  But Governor Christie vetoed A575 over concerns that it was unconstitutional and favored in-state interests at the expense of out-of-state interests - economic protectionism.

With decades of hard-earned environmental regulations on the books for hazardous waste, why is a ban even needed? 

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Because fracking waste is not regulated like other potentially hazardous waste.  The waste from fracking is exempt  from the Clean Water Act, the Safe Drinking Water Act, the Resource Conservation and Recovery Act, and the Comprehensive Environmental Response, Compensation, and Liability Act - commonly known as Superfund.  The best-known exemption is the "Halliburton Loophole," which allows oil and gas operations to inject brine and other unregulated fracking fluids into or near drinking water aquifers.

Prudence

The lack of federal regulations means the safe disposal of fracking waste is decided state by state.  Plus, some of the hundreds of chemicals used in fracking are even protected as trade secrets. It's a black box. 

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But that doesn't mean fracking waste can't contaminate streams, groundwater, sediments, or leachate in solid waste landfills just like waste from regulated industrial operations.  As first reported by Desmogblog on May 28th, the EPA found that tests of shale waste failed several standards:  “drinking water maximum contaminant levels (MCLs) were exceeded for 8 parameters; water quality criteria for human health protection were exceeded for 9 parameters; and criteria for aquatic life protection were exceeded for 16 parameters.”  The EPA found that fracking wastewater could “contain a wide variety of pollutants that may include total dissolved solids (TDS), chlorides, radionuclides, bromides, metals and organics.”

The exemptions only remove the hazardous characteristics of fracking waste on paper. That is why some sewage treatment plants and solid waste landfills in other states have been able to accept fracking waste without violating their NPDES permits.  Public Works departments even started applying exempted fracking brine directly to roads as a de-icer.

If you make decisions assuming that exempted hazardous waste isn't really hazardous waste anymore, it's like turning the regulatory clock back 30-40 years.

In 2011, a few facilities in NJ along the Raritan and Delaware estuaries started taking fracking waste as well,  in spite of a letter from the NJDEP that same year warning sewage treatment plants of their concerns about “elevated concentrations of contaminants” in fracking wastewater. Tests of fracking waste at one facility in Carteret showed it contained dozens of pollutants, including m,p-Xylene, Molybdenum, Barium, Strontium, Napthalene, and 1,2,4Trimthylbenzene, as well as Radium-226 and 228.

The NJ facilities may have stopped taking it for now.  It's hard to tell, because fracking waste doesn't need to be tracked with a manifest like regulated hazardous waste does when it's shipped.

The EPA has just clarified how fracking waste can lose these regulatory exemptions.

In a recently leaked report, the EPA determined that when fracking waste is treated or disposed with other waste, that "mixture" can be regulated as a hazardous waste discharged from a point source.

That's sobering news for facilities that accept fracking waste, because the EPA just made it clear that they're not getting any exemptions. If their treated effluent should exceed standards, they are responsible to pay fines and upgrade their operation, just like always. When fracking waste is mixed with other waste, no more fig leaf, once the standards are exceeded.  The EPA guidance flatly tells operators of Publicly Owned Treatment Works (POTWs), or sewage treatment plants: “POTWs must comply with their NPDES permit terms and conditions.”

There could be significant impacts to the public and environmental health, and to the economy, should NJ passively allow fracking waste into the state by not enacting a ban.

Protectionism

As explained by attorney Michael L. Pisauro, Governor Christie vetoed the fracking waste bill in 2012 because of his concerns that A575 violated the Commerce Clause.  Here is an excerpt from the Governor's veto in 2012:

“The lack of frackable shale formations in New Jersey is directly relevant to Assembly Bill No. 575 and is why, based on advice from the Office of the Attorney General, I must return this bill without my signature due to its unconstitutional nature. Because the nation is one common market in which state lines cannot be barriers to commerce, the Dormant Commerce Clause of the United States Constitution limits a state’s ability to regulate interstate commerce. Accordingly, the Dormant Commerce Clause precludes states from enacting parochial, isolationist, and discriminatory laws, such as Assembly Bill No. 575.”

But as Pisauro explains, while the Dormant Commerce Clause prohibits states from using “economic protectionism” to interfere with interstate commerce, it permits laws that “regulate evenhandedly to effectuate a legitimate local public interest and only affect interstate commerce incidentally.”

A law that creates “a preference for intrastate goods or prohibits interstate goods while still allowing intrastate goods the law is an economic protection scheme and will not survive a challenge”

But legitimate “environmental protection polices [do] not implicate the Commerce Clause simply because [they] may be in the best economic interests of the state so long as the state’s choice does not discriminate between in-state and out-of-state competitors.”

“The Courts have ruled several times that merely because  'out-of-state firms happen to be the only ones currently interested in engaging in activity foreclosed by facially evenhanded state regulation has not by itself been held to trigger the heightened scrutiny.'”

The Assembly Vote: Yay, Nay, or Delay

Is a fracking waste ban “parochial, isolationist, and discriminatory” as the Governor has written? 

Or as Senator Bob Gordon of Bergen has recently stated, a ban  "is constitutional … "It does not violate the interstate commerce clause because it is dealing with issues of safety, and the courts ruled under certain circumstances this kind of situation would not violate the commerce clause."

The leaked EPA guidelines reinforce the premise of A2108 that fracking waste poses “financial, operational, health, and environmental risks to the citizens of the State”; that “the regulatory requirements for ultimate treatment and disposal of such waste are not clear”; and that the “waste has been exempted from many federal hazardous waste laws even though it contains hazardous materials.”

The confusion over the exemptions may be leading to the next generation of publicly-funded Superfund cleanups in states with fracking operations. Avoiding this sounds like a “legitimate local public interest” for NJ. Does anyone remember the “toxic time bombs” of the late seventies and eighties?

NJ’s fracking waste ban is not only prudent; now it’s conservative. Connecticut just went one better with their 3-year fracking waste moratorium. Not only will the generators of fracking waste now be required to disclose the chemical composition.

Fracking waste will be labeled as "hazardous".

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