The report points out that a series of high-profile events over the last seven years has raised public awareness and concern—events such as illegal dumping, wastewater spills and earthquakes. That awareness has also increased thanks to a burgeoning number of studies documenting the toxic ingredients in fracking waste and how they can enter the environment. Those studies were cited by Dr. Howard Zucker, New York state's commissioner of health, in his testimony that led that state to ban fracking in December 2014.

“Thirty years ago the Environmental Protection Agency exempted oil and gas waste from federal classification as hazardous, not because the waste isn’t hazardous, but because EPA determined state oversight was adequate,” said report lead author and Earthworks’ eastern program coordinator Nadia Steinzor. “But our analysis shows that states aren’t keeping track of this waste or disposing of it properly. States must take realistic, concrete steps to better protect the public.”

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Earthworks' report made a series of specific recommendations of the types of regulations states should adopt. They include state-level legislation identifying oil and gas waste as hazardous, filling in gaps in current state laws, requiring testing of wastes before they leave the site, implementing "cradle to grave" tracking of wastes and requiring detailed documentation throughout its lifespan, upgrading testing and monitoring of wastes, and requiring treatment and disposal of wastes at specialized facilities designed to detoxify them.

Drill cuttings stored at a well site in West Virginia. Photo credit: Bill Hughes

It found all four states lacking. While it pointed out that West Virginia has adopted some new regulations and Pennsylvania is currently revising its regulations, it cited numerous shortcomings in how those states handle fracking waste. Of Ohio it said, "Even as shale gas development surges in Ohio, the state has done little to strengthen regulations and procedures related to waste management. HB59, passed in 2013, directed Ohio Department of Natural Resources (ODNR) to adopt rules for waste storage and disposal—but critical regulations have still not been put forward for public review and adoption. As a result, operators and disposal facilities have wide discretion to decide whether waste is contaminated and how to dispose of it."

"Ohio’s land and water are at great risk from improper and under-regulated disposal of fracking wastes," said Melanie Houston, director of water policy and environmental health at the Ohio Environmental Council. "As this report details, regulations in Ohio remain woefully inadequate when it comes to protecting human health and the environment from the radiological and chemical risks associated with fracking waste."

Wood chips are adding to fracking sludge in Pennsylvania prior to being shipped to a landfill. Photo credit: U.S. Geological Survey

And although New York has banned fracking inside its borders, it still produces waste from conventional drilling and increasingly accepts fracking waste from other states. And like the EPA rule, it said that New York law specifically excludes all oil and gas field waste from the definition of industrial and hazardous waste.

"As a result, operators can dispose of waste at municipal waste landfills and sewage treatment plants," the report says. "The actual tracking of waste is currently left up to drillers and the operators of disposal facilities. Oil and gas operators are not required to report the volume, type, chemical content, disposal process, or origin and destination for waste with any specificity."

"This report illuminates the dirty secret of oil and gas development—what to do with the enormous amount of waste generated each year. In New York, problems with the improper reuse and disposal of oil and gas waste persist despite the ban on high-volume fracking," said Riverkeeper staff attorney Misti Duvall. "We have a state that not only allows importation of waste from Pennsylvania into New York’s landfills, but also permits the not-so-beneficial reuse of oil and gas waste on our roads. It’s past time for New York to rethink its haphazard approach to oil and gas waste.”

Waste pits under construction in Pennsylvania. Photo credit: Frank Finan

The report condemned the piecemeal "Create it now, figure it out later" approach taken by the states in the Marcellus and Utica shale region, saying "All four states have taken essentially the same approach—one that unfortunately has inadvertently created an opaque picture of what’s really happening with waste and inadequate efforts to fix problems associated with it."

"Drilling waste harms the environment and health, even though states have a mandate to protect both," said report co-author and Earthworks energy program director Bruce Baizel. "Their current ‘see no evil’ approach is part of the reason communities across the country are banning fracking altogether. States have a clear path forward: if the waste is dangerous and hazardous, stop pretending it isn’t and treat it and track it like the problem it is.”

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