In Fracking Hotbed, a Muted Approach to Regulation
In Ohio, where gas drilling is booming and toxic waste abundant, legislators acted modestly to address concerns about public safety.
Ohio annually processes thousands of tons of radioactive waste from hydraulic-fracturing, sending it through treatment facilities, injecting it into its old and unused gas wells and dumping it in landfills. Historically, the handling and disposal of that waste was barely regulated, with few requirements for how its potential contamination would be gauged, or how and where it could be transported and stored.
With the business of fracking waste only growing, legislators in 2013 had the chance to decide how best to monitor the state's vast amounts of toxic material, much of it being trucked into Ohio from neighboring states.
But despite calls to require that the waste be rigorously tested for contamination, Gov. John Kasich and the state legislature signed off on measures that require just a fraction of the waste to be subjected to such oversight. The great majority of the byproducts creating during the drilling process – the water and rock unearthed – still do not have to be tested at all.
As well, the legislature, lobbied by the fracking industry, undid the governor's bid to have the testing of the waste done by the state's Department of Health — the agency acknowledged by many to possess the most expertise with radioactive material. The testing is now the responsibility of the Department of Natural Resources, the agency that oversees the permitting and inspection of oil and gas drilling sites, but that has no track record for dealing with radioactive waste.
The legislators acted with little in the way of public debate, and the new regulations they adopted appeared deep inside a 4,000-page state budget bill. As a result, both the measures first proposed by Kasich and those ultimately signed into law have infuriated environmentalists and residents with concerns about the risks of fracking in their state.
A ProPublica review of the legislature's actions shows that just a handful of parties testified before the oversight committees charged with examining the pros and cons of the proposed regulations. And interviews with legislative staffers make clear that the final language of the regulations, including changes that scaled back two measures proposed by the governor, was inserted into the budget bill at the last minute.
And so today, to the surprise of much of the public as well as some elected officials, Ohio's oversight of fracking waste remains much as it had been – limited and controversial.
"It has the potential to leave a toxic legacy that could turn much of Ohio into potential superfund sites," said Alison Auciello of the Food and Water Watch, an environmental advocacy organization.
Tom Stewart, vice president of the Ohio Oil and Gas Association, said existing regulations made mandatory testing of fracking waste unnecessary and said his group had pushed to limit the Department of Health's role because it would have created bureaucratic problems rather than effective monitoring.
The state's oil and gas interests supports "regulation that directly enhances protection of the public interest while allowing industry to efficiently do its job," he said. "We do not support regulation that is designed more to placate people or somehow make them feel better."
Regulations for the disposal of fracking waste vary from state to state. In some, like Texas, regulation is virtually non-existent. But others have taken more aggressive measures to safeguard the public. For instance, North Dakota and Pennsylvania have agreed to identify and quantify, through formal testing, the radioactive threat and plan to adopt protections accordingly. Already, they have installed alarms in landfills to check if the contaminated waste being received violates the state limits already in place. And in West Virginia, legislators enacted a law requiring the construction of separate, lined pits for the storage of radioactive fracking waste.
Oil and gas drilling is big business in Ohio, responsible for tens of thousands of jobs and billions of dollars in investments by companies eager to mine the state's natural resources. An economic study conducted by industry groups in 2011 forecasted that the business would add over 200,000 jobs in coming years. Kasich has declared Ohio an eager partner with the industry.
The environmental challenges produced by the industry in Ohio fall into two categories: the liquid waste created by hydraulic-fracturing, much of which is now stored by re-injecting it into the earth; and the solid waste that is now piling up in the state's landfills.
"It has the potential to leave a toxic legacy that could turn much of Ohio into potential superfund sites."
—Alison Auciello, Food and Water Watch
The public in Ohio has become most knowledgeable and concerned about the handling of liquid waste. There has been growing concern that the fracking process has provoked earthquakes, creating cracks through which the radioactive water put back in the earth could contaminate the local groundwater.
State officials have said they are studying the threat of liquid waste, but the measures adopted in last year's budget bill did next to nothing to address the potential threat.
There is little doubt among environmentalists and others concerned with safety that the debate over what to do with the fracking waste has been colored by the state's interest in promoting the industry's growth. Analysts and others say being able to easily dump waste within Ohio spares drilling operators one of their greatest expenses – trucking the waste elsewhere.
Kasich's office did not respond to repeated requests for comment about the new regulations and how they came to be. Officials with the Ohio Senate majority caucus, which revised and ultimately pushed through the 2013 regulations, also would not comment.
Environmentalists in Ohio assert that no meaningful regulation of the industry can be achieved without real public debate, including input from researchers and scientists who have been studying the health risks of radioactive waste for years.
"When you let politics rule in the face of scientific determination, it's an unconscionable position to take," Julie Weatherington-Rice, an adjunct professor in the Department of Food, Agricultural and Biological Engineering at Ohio State University, said of the limited changes in regulatory oversight. "In the process of doing that they've put the population of Ohio at risk."
Radioactive waste is produced at almost every step of the natural gas extraction process that has come to be known as fracking. This is true in part because the very shale formations that drillers are trying to access contain radioactive metals. As operators drill down to the gas reserves, they bring some of those metals back to the surface.
In some cases, the metals dissolve into the water used to frack the well, contaminating it. In other cases, the metals are present in the bits of rock and soil – called drill cuttings – that operators break up while drilling. In order to bring these cuttings back up to the surface and to keep the drilling machinery cool, operators use drilling mud, a viscous fluid with high levels of radium and a host of other radioactive elements.
None of this is new. Oil and gas fields have always produced radioactive waste. But the fracking boom has increased the intensity of drilling and, as a result, radioactive materials are being unearthed faster and in larger quantities. Also, operators are accessing newer shale reserves that the U.S. Geological Survey has found to produce higher levels of radium than conventional oil and gas reserves.
In recent years, with Ohio elected officials promoting the fracking industry and neighboring states more vigorously regulating the disposal of fracking waste, Ohio has come to be a dumping ground. In 2013, for instance, three municipal landfills in Ohio received over 100,000 tons of solid fracking waste, according to FracTracker, an organization that collects data on the fracking industry. Those very facilities handled no more than 15,000 tons in 2011.
Increasing amounts of the fracking waste disposed of in Ohio comes from Pennsylvania. In 2011, Pennsylvania adopted several measures to curtail and control the disposal of fracking waste inside its borders. In 2013, the Pennsylvania Department of Environmental Protection estimated that 100,000 tons of drill cuttings from fracking sites in Pennsylvania ended up in Ohio's landfills.
Ohio is not the only state struggling to deal with the tons of radioactive waste coming out of drilling sites. In North Dakota, a state that has seen a tremendous growth in oil production in recent years, officials have been finding heaps of filter socks – nets used to strain radioactive wastewater – dumped illegally in abandoned gas stations and alongside roads.
But Ohio's growing popularity as something of a go-to destination for fracking waste has ignited widespread concern in the state about better protecting the public and toughening regulations.
In 2012, the Ohio Department of Health, facing increasing pressure from concerned citizens and environmental groups, conducted tests to investigate the risk of radioactive waste. The department measured levels of radioactivity in the sand used while fracking, the water that is brought back up after the process, the pieces of rock and minerals from the well, and the fluid used to drill the well.
The chemical mixture used to drill the well — the drilling mud — tested positive for radium at levels over 100 times the safety limits for disposal at a local landfill. If federal law had applied to it, the waste would have to be trucked to one of the nation's handful of low-level radioactive waste sites.
Every two years, Ohio passes a sprawling budget bill that, all too easily, can be a vehicle for adopting controversial policy changes without much public discussion or transparency. That's what happened last year when Kasich and the Republican-controlled State Senate decided to cram revamped fracking regulations into the giant spending bill.
The governor first sought to include a half dozen measures to address concerns over how to deal with the growing amounts of waste being generated or deposited in Ohio.
The measures, among other things, required that the "drilling mud" used in the fracking process be tested for contamination. They also required that the testing be done by the Department of Health, which had long overseen the handling of radioactive waste and other materials in the nuclear energy and hospital industries. But the measures also exempted the lion's share of the waste generated by the drilling process.
The exempted waste included the solidified rock and mud that, once in landfills, was often exposed to rain and snow over long periods of time. Researchers say that if there are leaks or tears in a landfill's liner, the groundwater used by the local community can become contaminated.
The implications of the governor's proposed provisions struck some as warranting much greater debate and scrutiny.
"There was some discussion [in the House] that because it was such a substantial piece of policy, it might be dealt with better in a stand-alone bill," said one staffer with the Ohio House of Representatives, who spoke anonymously for fear of straining relations with his Republican colleagues.
Environmentalists in the state agreed, arguing that the governor's proposed provisions did next to nothing to improve the rigor of oversight, and that testimony from experts in public health and the science of fracking was badly needed. Ohio's obligation, they asserted, was all the greater because, at the federal level, radioactive waste from fracking has been exempted from several regulatory requirements that are intended to protect the environment. As a result, oversight of radioactive waste has been mostly left to state governments.
Fracking-related state legislation usually generates a lot of media attention and public participation, but that did not happen on the radioactive waste provisions tucked into the Ohio budget bill. Only four parties testified on the proposals: the Ohio Environmental Council, the Ohio Sierra Club, Food and Water Watch and the Ohio Oil and Gas Association.
Veterans of Ohio's fracking fights said that had the proposals been aired as part of a separate bill, and not as one aspect of a massive, highly technical budget bill, the debate likely would have been far more robust. It could have included everybody from scientists to landowners to citizens who already feel they have had their health harmed.
In the relative quiet, then, the Oil and Gas Association won on one critical issue. The industry objected to the governor's notion that the Health Department conduct any testing of fracking waste.
Records show that industry officials lobbied aggressively to keep all responsibility for fracking waste with the Department of Natural Resources. The natural resources agency, officials argued, already regulated much of the state oil and gas. Splitting oversight responsibility, the industry argued, would be wasteful and ineffective.
James Aslanides, president of MFC Drilling, testified on behalf of the oil and gas industry during a brief, initial hearing before a House committee considering the governor's proposals. He contended that giving the Health Department a role in oversight would "blur the line between regulatory agencies."
"There is no problem," he testified. "This is the classic regulatory solution looking for a problem to solve."
Environmentalists were livid. The Ohio Department of Health has a long history of regulating the use and disposal of radioactive material in the state. The department has an agreement with the U.S Nuclear Regulatory Commission to license and inspect nuclear facilities, and any potentially radioactive material that nuclear power plants produce has to be permitted for disposal by the Health Department.
To many, it made sense to have the department be charged with deciding what fracking material would have to be tested, and how it would be done.
"The last time I checked, there was no one at the Department of Natural Resources who knows squat about radiation," said Teresa Mills, an Ohio organizer at the Center for Health, Environment and Justice, an advocacy organization based in Virginia.
Officials with the Department of Natural Resources did not respond to a request to identify any employee with experience in dealing with radiation.
At first, it seemed the industry's efforts had failed. The House committee, clearly convinced the measures required their own bill and a fuller public debate, removed all of the governor's proposed regulatory measures.
But the measures resurfaced in the State Senate, and, on the eve of a full legislative vote on the budget bill, were reinserted in the law. The Senate's provisions included granting the industry one of its wishes: any testing of fracking waste would be the responsibility of the Natural Resources Department.
On June 30, 2013, with the House having opted not to protest the Senate's reintroduction of the measures, the bill was signed into law by Kasich.
Stewart, the industry association official, said the provisions were responsibly calibrated.
Many citizen activists, researchers and an array of environmental groups are not persuaded.
"It would be one thing if this was a hundred years ago and we didn't know better," said Weatherington-Rice, the Ohio State professor. "But we know better. That's what is aggravating about this.
"They're putting people at risk and they know better."