Getting Fracked Over — Even If Your State Doesn’t Do It
WHY YOU SHOULD CARE
This legal sphere is far from determined and could have massive environmental implications.
The trucks came from West Virginia into neighboring Kentucky — down Interstate 64, as Huntington’s craggy tops faded, before heading south on Highway 89, or perhaps 82, where today the frosted hills melt into snow-splattered farmland. The convoy barreled through a 55 mph lane, past rusting Cat tractors, Baptist churches and a sign reading “Welcome to Estill County: Where the Bluegrass Kisses the Mountains.” After taking a left off the highway, upon reaching their destination at the landfill across the street from the high school, the trucks dropped off their precious cargo: 1,200 tons of radioactive waste.
Those neighbors left not just an environmental mess but also a toxic indictment of a cross-state, legal ecosystem that’s grappling today with the effects of hydraulic fracturing, or the mining process known as fracking, which involves drilling and injecting shale rock with a high-pressure mix of waters, sand and chemicals to release natural gas. Some fracking states, such as Pennsylvania and West Virginia, have passed strict regulations regarding waste disposal from the process — waste that the Environmental Protection Agency determined in a 2015 report to have noxious chemicals, including radium, barium and boron. This kind of contaminant-filled waste regularly heads to states where fracking is limited (as in Kentucky) or even banned, as was the case when New York landfills took in at least 15,000 tons of the stuff from contractors, according to the Pennsylvania Department of Environmental Protection database. Idaho and Michigan have both also accepted out-of-state waste in the past year, even though together they claim less than 1 percent of the nation’s total fracking injection wells.“That bothers us,” says Tom Bonny, an Estill County resident. If they’re going to frack in Pennsylvania, he notes, “they ought to bury it or dispose of it in Pennsylvania.”
Today, Bonny is standing between a sign for Estill County High School and, just a few yards away, the marker for Blue Ridge Landfill — where trucks dumped off their loads from July through November of 2015, according to an investigation by Kentucky officials. Decades earlier, Bonny arrived here in the city of Irvine and rose from band director to middle school principal to, eventually, superintendent. During the late ’90s, he helped place the middle school here, across from the landfill. “It wasn’t really a big issue,” Bonny says. “They were just bringing residential waste.” Sure, when the wind turned a certain way, an odor might cut across the playground. But that was about it — until the landfill started quietly importing fracking waste in recent years.
States that expressly benefit from fracking essentially outsource the environmental cost to others — a natural consequence, environmental law experts say, of companies trying to avoid disposal regulations that have become more stringent. In West Virginia, regulatory officials opted a year ago to require a stricter test to determine between hazardous and nonhazardous material. If deemed hazardous, it had to be sent to what’s known as a Subtitle C landfill, where hauling distance and tipping fees are greater, says Paul Ziemkiewicz, director of the West Virginia Water Research Institute. He didn’t know the state even had such landfills. (The West Virginia Department of Environmental Protection did not respond for comment.)
Meanwhile, Pennsylvania has banned fracking waste disposal in public sewage plants since 2011. The state also more recently increased regulations on the use of injection wells — disposal sites commonly used to store fracking waste, and which the U.S. Geological Service has linked to causing earthquakes in at least five states, including neighboring Ohio. And it has relatively few landfills qualified to handle radioactive waste, too, which historically has given companies “an incentive to treat it, or truck it out elsewhere,” says Ross Pifer, director of the Penn State Center for Agricultural and Shale Law.
What some may not realize is that states such as Kentucky and Idaho are rewarded for being national dumping grounds for waste. Drilling companies spend a lot on disposal costs — as much as $20 billion to $30 billion, based on one 2013 estimate by securities managing director Michael Hoffman. And while drilling’s effect on the local environment is well-reported, there are less documented studies on the environmental footprint of radioactive waste.
Still, in Estill County, residents worry about the proximity of radioactive material to their school system, even if the waste tends to be buried under 10 to 15 feet of trash. “All the chemists and experts say it’s low-risk right now, but we don’t know how long that will be for,” Bonny says. The landfill’s been there for a quarter-century, yet its liner has only a 30-year warranty. (Blue Ridge Landfill has said it didn’t know the contents coming from West Virginia were hazardous, but has agreed to install radiation sensors at its facilities as part of a $95,000 settlement.) On the other side of the landfill sits a Presbyterian church camp; a local housing community also draws water from the area. Madison County (including the city of Richmond), and the intakes for the city of Lexington, aren’t far, either. “If it gets into the water table and our streams and creeks — really, the people down the stream will be affected,” Bonny says.
It’s a felony to knowingly import or dispose of low-level radioactive waste in Kentucky from any state other than Illinois.
When states have tried to set up legal barriers in the recent past, they’ve often failed to serve as an effective deterrent, environmental law experts say. In theory, the Estill County case could have been tried as a criminal act, says Mary Cromer, a lawyer for the Appalachian Citizens’ Law Center — it’s a felony to knowingly import or dispose of low-level radioactive waste in Kentucky from any state other than Illinois, due to a regional compact. “It should have been clear, but it wasn’t,” says Cromer, who filed a suit on behalf of Estill County residents asking for public documents related to the state’s investigation into the illegal dumping. Instead of pursuing criminal charges, Kentucky Attorney General Andy Beshear is seeking civil penalties totaling $8.2 million against eight companies accused of illegally dumping fracking waste from states including Ohio, Pennsylvania and Arizona. The decision wasn’t satisfying for many, including one Estill County local who quipped the charges amounted to the “cost of doing business.”
The symbolism of this grab-and-go dumping scheme takes an emotional toll, too, on a state with uncommonly close ties to its land. Adam Edelen, a former Democrat state auditor, says, “Kentucky being a dumping ground for Yankee trash is not only inconsistent with where we ought to be in terms of our policies and values, but it’s spiritually where we ought not to be.”
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