As Connecticut Enacts Moratorium on Fracking Waste, other States in Region Consider Bills

Connecticut Governor Dannel Malloy has signed into law a bill that creates a three-year moratorium on the disposal, storage, treatment or sale of waste produced from hydraulic fracturing, and instructs state environmental officials to devise a regulatory policy for handling the wastewater produced from natural-gas extraction that protects public health and the environment.

The law is part of a growing wave of measures introduced in states throughout the region and elsewhere to address concerns about disposal of the wastewater produced from fracking, in which a mixture of sand, water and chemicals is blasted at high pressure into layers of rock deep underground, creating fissures that release pockets of natural gas trapped inside.

Currently, fracking waste is not being disposed within Connecticut’s borders, but its proximity to shale-drilling grounds in Pennsylvania and to potential drilling operations in New York has raised concerns among elected officials that waste shipments could eventually pass through their state. There are presently no fracking operations in New York, which sits atop portions of the Marcellus shale, as the state is engaged in a comprehensive review of the potential health and environmental impacts of the practice. Nevertheless, both public and state officials worry that if New York decides to permit fracking, its wastes could be shipped to Connecticut, said State Representative James Albis, one of the sponsors of the Connecticut bill.

“We wanted some protection while we figured out a long-term approach to addressing fracking waste,” said Albis, who serves as vice chair of the Environment Committee.

The legislation classifies fracking wastewater as hazardous waste, and requires that companies seeking to ship the fluid through the state disclose its content to state environmental officials. Fracking waste is not considered hazardous waste under federal law, and is exempt from a number of federal statutes, including the Clean Air Act, the Clean Water Act and the Resources Conservation and Recovery Act.  In addition, the disclosure of substances in such wastewater — both the chemicals added to hydrofracking fluids and the naturally occurring elements that flow back to the surface from wells — has been a central issue raised in discussions about the possible impacts of shale-gas extraction on the environment and human health.

“I can’t emphasize enough that we’re focusing on treating this stuff as hazardous waste and that we’re requiring disclosure. I think those were the two wins in this particular bill,” said Albis. He added that under a provision in the legislation, if the state Department of Energy and Environmental Protection is not receiving the information it needs from industry, it can opt not to lift the moratorium at all, effectively keeping the ban in place for perpetuity.

In recent years, lawmakers in neighboring states have considered measures to ban fracking waste, and Albis said his colleagues in Connecticut wanted to ensure their state did not become the sole recipient of the region’s waste.

Connecticut’s bill sprang from efforts among a number of grassroots organizations who were originally seeking an outright ban on the storage, treatment and transport of waste in Connecticut.  Albis said that given the legislature’s passage last year of a measure that will dramatically expand natural gas distribution in the state, a moratorium was a more realistic compromise than outlawing the waste. That measure was part of Governor Malloy’s comprehensive energy plan, which aims to enable Connecticut’s homes and businesses to switch from costlier oil to cheap natural gas, whose prices have plummeted in recent years amid the Marcellus shale drilling boom.

“I think we found that balance where we‘re not saying, ‘we don’t want to take advantage of the low prices of natural gas’ — we do. But we want to do so in as environmentally friendly a manner as we can,” said Albis.

Actions in New England and Mid-Atlantic States

Two years ago, Vermont enacted a ban on fracking and on the disposal of fracking waste, which Governor Peter Shumlin characterized in part as an example for other states, given the absence of any local gas deposits.  Massachusetts lawmakers are considering a measure that would create a 10-year moratorium on fracking and ban the treatment and disposal of its waste.

A series of bills introduced in the New York Senate and Assembly would ban the treatment and disposal of waste left over from fracking, and ban its use to de-ice roadways — a practice that is also prohibited by the Connecticut legislation.[i]  While there are currently no fracking operations in New York, pending the conclusion of an extended study of possible public health impacts and appropriate regulatory actions, state landfills are accepting fracking waste, and brine contained in fracking wastewater is being spread on roadways.

“There are currently multiple bills that would close loopholes and ensure waste products from the hydrofracking process are not allowed into New York state,” State Senator Ted O’Brien, ranking member of the Senate Environmental Conservation Committee, told The Legislative Gazette, “but they are not being brought to the floor for a vote.”

A bill that would require a three-year moratorium on any hydraulic fracturing in the state  passed in the Assembly by a vote of 89 to 34 and was delivered to the Senate on June 16; the legislative session  ended on June 19.

State officials in Maryland and New Jersey have also actively debated issues connected with shale-gas extraction and wastes during the last three years.

In Maryland, where two counties lie above the eastern edge of the Marcellus Shale formation, Governor Martin O’Malley issued a 2011 executive order forming an advisory commission that would look into the potential impacts of hydraulic fracturing, including those connected with the wastewater resulting from drilling and well completions. A 2013 report produced for the commission sets out a series of best- management practices, with the aim of minimizing any harm to the environment and public health that could result from shale-gas operations.

A draft report released last August from Maryland’s environmental and of natural-resources agencies supports the commission report’s recommendation that a Comprehensive Gas Development Plan (CGDP) be developed before the state considers issuing any well permits.  But while the commission’s report envisioned a voluntary, though highly incentivized, best-practices program, the agencies’ August draft says that the CGDP should provide a mandatory minimum baseline for operations associated with hydraulic fracturing and disposal of fracking wastes.

Analyses of anticipated public health impacts and economic impacts  will also be available for consideration by the state before the end of June.[ii]  In addition, the two state agencies and the advisory commission are expected to release their final assessments in late summer or early fall.

If shale-gas development is ultimately allowed in Maryland, best practices will be required, and strict new regulatory requirements would have to be proposed, said Robert M. Summers and Joseph P. Gill, the secretaries of the Maryland Department of the Environment and Department of Natural Resources, respectively, in a recent commentary published in The Baltimore Sun.

The General Assembly will be able to weigh in on final proposals from the executive branch in its 2015 session. Legislators have considered bills that would have introduced a fee on well owners and added other requirements beyond those contained in the 2011 executive order, but they were withdrawn following unfavorable committee reports.

Earlier this year, the New Jersey Senate approved a bill that would ban treatment and disposal in the state as well as its use on roadways.  Both houses approved a similar bill in 2012, but it was vetoed by Governor Chris Christie.  Christie also conditionally vetoed a 2011 bill that would have banned hydraulic fracturing altogether.

“I think we should err on the side of caution.  There’s a big question about what to do with all of this fracking waste,” said New Jersey Assemblyman Reed Gusciora, one of the bill’s sponsors.

Gusciora, who chairs the Assembly’s Regulatory Oversight Committee, added that he expects the Assembly to hold a hearing later this year on the bill, which has stirred opposition among industry.

— By Rona Cohen and Eleanor Saunders


[i] These include S 3333-A  , S 3433  , S 5123-A  , and S 5412 , along with Assembly companion bills A9074-A , A9955, A7503, and A 7497 respectively.

[ii] Copies of the reports are available on the Website of the Department of the Environment at Marcellus Shale Safe Drilling Initiative.

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