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?
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 toinject 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 ofchemicals used in fracking are even protected as trade secrets. It's a black box.
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.