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Blair Horner: New York Closes The Frack Waste Loophole

As lawmakers scrambled to wrap up the session last month, they passed hundreds of bills, most of which were well outside of the public’s view.  Due to the intense interest in the COVID pandemic, the public unrest over race relations, and the deepening financial crisis, it’s not surprising that other important issues were decided outside of the limelight.

One such issue is legislation addressing the disposal of wastes from the fracking of natural gas.  In recent years there has been an intense national debate over new methods of extracting fossil fuels.  The most notable has been the debate over the use of hydraulic fracturing (fracking) to access fossil fuels.  This new approach allows easier access to natural gas (and oil) than ever before.

In an era of climate change, when the planet is rapidly heating up due to the emissions of the burning of fossil fuels, using new technologies to allow easier use of those fuels has been a flash point of growing national environmental debate.  The threats that such industrial-scale mineral extraction pose to drinking water supplies adds another dimension to that fight. 

Five years ago, New York State banned fracking, citing both the drinking water threats as well as the concern over global warming.

Yet, oddly, New York has allowed the dumping of wastes from that practice to be disposed of in state landfills without much oversight.  That longstanding loophole, commonly known as “the hazardous waste loophole,” exempts oil and gas waste from being classified as hazardous waste, even if it met the definition. This loophole exists federally and was replicated by many states, including New York.

Despite New York’s ban on high-volume hydraulic fracturing, New York landfills have accepted over 650,000 tons and approximately 23,000 barrels of fracking waste from Pennsylvania’s drilling operations since 2011.  Oil and gas waste is known to contain hundreds of chemicals, many of which are known or suspected carcinogens, heavy metals, salts, and high levels of naturally occurring radioactivity.  Improper disposal of these toxic wastes can pose significant threats to nearby drinking water supplies.

As part of the frenzy of legislative activity at the end of July, legislation was approved – and subsequently signed into law by the governor – that superseded current regulations and classified wastes from oil and natural gas exploration, drilling and production activities as hazardous waste.  More appropriate disposal of these wastes diminishes the threat posed to drinking water.

That environmental victory adds another nail in the coffin of the fracking industry and helps to protect New York’s drinking water supplies from contamination.

Yet, the efforts to protect New York’s drinking water supplies should not end there.  The state has begun to regulate heretofore unregulated contaminants currently found in drinking water supplies.  In particular, the state set safety levels for the contaminants PFOA, PFOS, and 1,4-dioxane. These three contaminants have polluted the drinking water serving millions of New Yorkers – and that is only where testing has already been conducted.  It is critical to establish maximum contaminant levels (MCLs) for these chemicals to ensure testing takes place in every community, no matter its size, and to prevent people from getting sick.

However, the safety levels set need to be regularly updated in order to ensure the highest possible level of protection.  In addition, the state has to tackle other unregulated contaminants, which also pose threats to drinking water supplies.

As the planet heats up, drinking water supplies will face increasing threats.  Industrial pollution legacies have always threatened water supplies and the world can ill afford to lose access to drinking water due to pollution.

New York State has been blessed with plentiful freshwater supplies, yet a historic legacy of poor pollution practices leaves too much of that water unfit to drink.  Banning fracking waste is a victory worth celebrating, but the ongoing struggle to ensure that New Yorkers have access to clean drinking water continues.

Blair Horner is executive director of the New York Public Interest Research Group.

The views expressed by commentators are solely those of the authors.They do not necessarily reflect the views of this station or its management.

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