New law closed loophole allowing potentially hazardous waste from oil and gas drilling to be disposed of in New York, but activists question how it will be enforced
  • Activists are watching whether the state will enforce a new law that closed a loophole that allowed waste from certain oil and gas drilling activities in Pennsylvania to be disposed of in New York.
  • Oil and gas waste can contain contaminants, such as heavy metals or radioactive materials, that leach into the ground, pollute the environment and endanger human health, activists say. 
  • 640,000 tons of waste from Pennsylvania from oil and gas extraction activities called hydraulic fracturing or so-called fracking have been disposed of in landfills in New York.

Though Gov. Andrew Cuomo signed a law closing a loophole that allowed certain oil and gas waste from Pennsylvania to be disposed of in New York without being treated as potentially hazardous waste, activists are still watching to see how authorities will interpret the regulation of waste they say is bad for the environment and human health.

On Aug. 3, the law removed an exemption that has allowed over 640,000 tons of waste from Pennsylvania from oil and gas extraction activities, called hydraulic fracturing or so-called fracking, to be disposed of in landfills where the state sends regular municipal waste. Activists have long warned that such waste can include contaminants, like heavy metals or radioactive materials, that leach into the ground, pollute the environment and endanger human health.

The move by New York state is positive, says Melissa Troutman, a policy analyst for the nonprofit Earthworks. But activists are waiting to see whether the Department of Environmental Conservation will enforce the new regulation and require more careful handling and disposal of oil and gas waste.

“Closing this loophole makes New York a national leader. That much is true, but it doesn’t necessarily mean that oil and gas waste will be properly managed,” Troutman, who lives near fracking operations in northern Pennsylvania, told Karma. “Because something is the law, that doesn’t always lead to enforcement. We’ve seen them implement policies on paper in the past that simply were never put into place. And so we will continue to monitor these actions.”

Earthworks is also leading efforts to get Pennsylvania to subject oil and gas waste to a higher threshold as potentially hazardous waste.

New York state banned fracking activities in the state in 2014, but it has been receiving oil and gas waste products — which includes byproducts from refineries, oil and gas pipelines and so-called brine water, fluids from oil and gas wells — from New York-based oil and gas operators, as well as those in neighboring states.

The new law does not address brine water, a type of salty fluid waste that comes from oil and gas wells, which is used by municipalities and cities to de-ice and remove snow from roads near homes and business centers all over the state. These activities may be spreading radioactive materials such as uranium, thorium and radium found in oil and gas waste in highly populated areas, say activists.

A 1982 paper from The American Petroleum Institute, the largest umbrella organization for the U.S. the oil and gas industry, says “It is well known that some naturally occurring elements uranium, for example, have an affinity for crude oil.”

Still, some industry representatives say the New York law is a regulatory overreach because the state already requires oil and gas waste to be tested before being disposed of in landfills and being used for deicing purposes.

A spokesperson for The Independent Oil and Gas Association of New York declined to comment on the potential hazardous content of waste from Pennsylvania, but said the industry already complies with prevailing laws and that Gov. Cuomo is ill disposed towards the sector.

“If you read some of the things that Governor Cuomo says, he’s very clear that anything he can do to shut down the industry in New York state, that’s his goal,” said the spokesperson.”

“We can’t just take brine out of oil and dump it on a road or put it in a stream. It has to go to a disposal site, get tested. So it’s already very controlled and the legislation is already there.”

Gov. Cuomo released a written statement praising the passage of the new law. “As we do everything possible to reduce our reliance on polluting fossil fuels, we have to make every effort to diminish the impact of the hazardous waste they produce and by signing this legislation we are enacting smart, necessary regulations that will protect both our environment and New Yorker’s health,” he said.

The Department of Environmental Conservation told Karma third-party labs certified by the state test brine water for safety before it is used on roads. 

“Some towns or private gas service companies have brine delivered or collected into their own storage tank, from which they must obtain a sample at least once per year pursuant to the regulation,” said a representative for DEC in a written statement.

Activists say that yearly batch samples of brine water may not be enough to screen for contaminants that can be introduced to the storage facilities throughout the year. More importantly, they say brine water and, previously, fracking waste does not get tested for radioactive materials.

“We’re talking about what’s not tested for and how it’s not being tested properly. So what they’re telling you is a half truth,” said Troutman.