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Pennsylvania Gas Drillers Dumping Radioactive Waste in New York

How did it happen? Provide the revenue-hungry county a rich payout, exploit a legal loophole, and presto, it's a done deal.
 
 
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ELMIRA, N.Y. -- Trucks hauling rock cuttings from drilling for natural gas in the Marcellus Shale formation in Pennsylvania regularly cross the New York State border these days to dump in the Chemung County Landfill seven miles east of Elmira.

The Marcellus formation is characterized by unusually high readings of naturally occurring radioactive material, or NORM, so most of the cuttings are probably radioactive. The Chemung Landfill, a former gravel pit, has never been licensed to handle low-level radioactive waste.

So how can the landfill’s private operators get clearance from the county and state environmental regulators to become a regional dump for radioactive drilling wastes?

The short answer: Provide the revenue-hungry county a rich payout, exploit a legal loophole, and presto, it’s a done deal.

The longer answer: Regulations haven’t kept pace with the recent widespread use of an invasive new drilling technology used to tap the Marcellus.

“There are many aspects of this new industrial activity that outpace existing regs. Radiological regulation is just one of them,” said Anthony Ingraffea, a Cornell University geology professor who has tracked the evolution of natural gas drilling for decades.

The latest variation of hydraulic fracturing now commonly used in Marcellus shale mining in Pennsylvania has never been allowed in New York State, but it is expected to be approved soon. Ingraffea said the New York Department of Environmental Conservation will need broader legal authority and a much deeper staff to cope with its considerable side effects.

But the DEC isn’t there yet, so there are legal gray areas that provide opportunities, and Casella Waste Systems is mining them.

In 2005, Casella entered into a 25-year, $90-million contract with Chemung County to operate its landfill, which had been taking in about 80,000 tons a year of garbage and municipal waste.

In April, the company and the county agreed to certain amendments to the deal and reaffirmed their goal of eventually increasing the landfill’s capacity to 417,000 tons per year.

“It’s been a great partnership,” said Larry Shilling, regional vice president for Casella, which has a pending application with the DEC for authority to boost capacity to 180,000 tons.

The DEC hasn’t raised major objections to the latest application. Nor did it object when it learned in January 2010 that for months the company had been accepting up to 2,000 tons of Pennsylvania drilling waste a week without first asking the agency for permission.

Casella also began diverting a major portion of its Chemung County municipal waste to other landfills to leave room for the Marcellus cuttings.

The DEC still isn’t sure when the new waste stream started because a lawyer for Casella said it was hard to pin down an exact date. While the DEC has taken it all in stride, several local residents who live near the landfill are quite agitated.

Dr. Earl Robinson, a pulmonologist who lives less than a mile away, noted that people who live near landfills often have higher rates of lung and bladder cancer than those who don’t.

Before Casella arrived, the Chemung Landfill had a history of violations involving industrial hazardous waste, so it may be partly to blame for the county’s problems with lung and bladder cancer.

From 2003-2007, the county’s bladder cancer incidence rate for males was 49.5 percent higher than the state average, while the lung cancer rate was 27.0 percent higher, according to the New York State Cancer Registry. In the 1999-2002 period, Chemung County had the highest bladder cancer rate in the state for males.

Obviously, Casella’s recent acceptance of Marcellus cuttings had nothing to do with those elevated levels in the past. But the new practice adds a new level of concern, Robinson said.

“Drill cuttings contain radioactive waste that will release radon gas, a carcinogen, and this will be disbursed into the atmosphere,” he said.

It may also find its way into drinking water supplies, Robinson added, because one engineering report commissioned by the county found that part of the landfill was “approximately 500 feet horizontally from the Chemung Valley Aquifer.”

Robinson is a member of a citizens group, Residents for the Preservation of Lowman and Chemung (RFPLC), that is challenging Casella’s bid to boost capacity to 180,000 tons per year.

RFPLC’s central claim is that Marcellus drilling wastes can’t be disposed of in a landfill that isn’t licensed to handle low-level radioactive waste. Such landfills are rare, and Chemung isn’t one of them.

The group’s argument echoes a formal statement sent to the DEC last December by the New York State Conference of Environmental Health Directors, which said in part:“Under no circumstances should drill cuttings be disposed outside licensed landfills without testing to show they are not a threat to human health or the environment.”

The DEC hasn’t conducted its own radiological testing of any wastes at the Chemung Landfill. Instead, it relied on submittals from Casella that appeared to show that neither drill cuttings nor soil contaminated with brine from Marcellus wells were dangerously radioactive.

Moreover, Lisa Schwartz, a lawyer for the DEC, argued that the level of radioactivity in the wastes sent to the Chemung Landfill wasn’t even a relevant legal question in the proceeding on Casella’s application to expand capacity. Her position reflected Casella’s stance on the issue.

In September, Edward Buhrmaster, an administrative law judge for the DEC, ruled that RFPLC’s challenge to the legality of dumping potentially radioactive wastes was irrelevant. He limited the Casella proceeding to the question of whether to allow the capacity to grow to 180,000 tons per year.

The citizens' group has appealed to the acting commissioner of the DEC.Under the law, Schwartz had argued, the Chemung Landfill could accept radioactive shale drill cuttings so long as they were not “processed or concentrated.” And she argued that the Chemung wastes were not. Ingraffea, among others, disagreed. In a pro bono memo filed in support of the RFPLC, the Cornell geologist stated that rock cuttings from drilling are typically carried to the surface by “drilling mud” that has been saturated with NORM. The rock cuttings are later separated from the mud in an industrial process known as “dewatering.”

Buhrmaster, the administrative law judge, struck Ingraffea’s testimony from the record along with comments made by two other scientific experts on behalf of RFPLC.

Buhrmaster concluded that the Marcellus shale cuttings were not processed and the landfill was legally entitled to make drill cuttings its entire waste stream -- up to its capacity.

Thomas S. West, an attorney for Casella, argued that if RFPLC’s central contention had any validity, which he denied, “it is a matter of statewide applicability that should not be determined in the context of a specific application for a particular facility.”

He said RFPLC could follow other procedural avenues to pursue its claim that radioactive cuttings had to go to a landfill licensed to handle them.

In addition to serving as Casella’s attorney, West has also served as a lobbyist to Chesapeake Energy, one of the companies that has dumped Marcellus brine-contaminated soil into the Chemung Landfill.

West also argued that the citizens’ group’s concerns about potentially radioactive wastes were addressed by the fact that Casella had installed radiological monitors at the landfill to warn of loads that exceeded set limits for radioactivity.

In April, Buhrmaster had expressed enthusiasm for on-site monitoring. But Schwartz acknowledged weeks later that the DEC staff hadn’t seen details of how the monitors would be operated and said their effectiveness “cannot be confirmed.”

In any case, Ingraffea said the DEC’s decision not to oppose the importation of Marcellus drill cuttings from Pennsylvania to Chemung “creates a precedent for a de facto open-door policy for potentially unacceptable materials to be transported into New York State without adequate regulations in place.”

The DEC is rushing to complete its final rules for the latest brand of hydraulic fracturing in the New York Marcellus shale, and agency officials have said they expect to finish in early 2011.

The rules are spelled out in the agency’s draft Supplemental Generic Environmental Impact Statement, which drillers plan to use to speed through the permitting process in New York. The draft has drawn thousands of critical comments.

Many of those criticisms have targeted the DEC’s approach to NORM and radioactive wastes.

When the agency tested brine from all 12 of New York State’s conventional Marcellus wells in 2008 and 2009 it found alarmingly high levels of radioactivity in more than half of them. Readings for the extremely dangerous Radium 226 were up to 260 times the limit allowed to be released into the environment.

Those readings alarmed the New York State Department of Health, which has discouraged the use of Marcellus brine as a roadway de-icer unless the radioactive materials can be removed first.

The DEC’s test findings also drew the attention of the New York City Department of Environmental Protection. “These data raise serious issues for public health, particularly with disposal of both solid waste (i.e. drill cuttings and equipment) and wastewater,” the NYCDEP wrote in a hard-hitting Dec. 9, 2009 letter to the DEC.

The city’s top environmental officer, Steven W. Lawitts, wrote that the DEC was obliged to do further analysis of the issue, adding: “Such an analysis must be completed before any activity that is likely to generate radioactive waste can move forward.”The DEC, however, said it intended to wait for the results of actual drilling in New York’s Marcellus. Meeting Lawitts’ more rigorous standard became less of a legal imperative after the DEC announced in April that natural gas wells drilled in the New York City watershed could not use the SGEIS process. Instead, drillers would be required to go through the lengthy environmental impact process well-by-well, a prohibitive expense that effectively curbs the latest brand of hydraulic fracturing within the New York watershed. If the watershed was spared hydraulic fracturing of the Marcellus, the DEC was spared a legal confrontation over radiological regulation.

The DEC has also drawn criticism for its failure to draw a sharp distinction between the latest version of hydraulic fracturing and the more benign techniques used in the past.

The draft DGEIS, many critics argue, needs to be rewritten to reflect special new impacts of the latest technique, which now dominates Marcellus mining. Ingraffea calls it “high-volume, slickwater fracking from long laterals on multi-well pads.”

Translated, that means drilling horizontally for several thousand feet along a deep shale formation from a well pad that may contain eight or more wells --  using up to 5 million of gallons of water per well with sand and chemicals that reduce friction and kill bacteria.

Before it’s allowed in New York, Ingraffea said, the state should require radiation monitoring of all wastes, solid and liquid, at the drilling pad so they can be sent to proper disposal destinations.

“Let the regs catch up with technology,” he said.