Connecticut has no oil or gas deposits, and that means no fracking – the controversial natural gas and oil extraction process that strips them from rock.
Yet Connecticut could have up to four bills on fracking this legislative session.
It’s the waste from fracking — short for hydraulic fracturing — that has lawmakers, environmentalists and even the Department of Transportation concerned, though not a drop of the waste has entered the state.
Even so, based on what’s being considered legislatively, Connecticut could set the national standard in dealing with fracking waste.
“I believe there has to be more environmentalism in energy — that the energy industry needs environmentalists really making sure that they pursue best practices,” said Rep. Lonnie Reed, D-Branford, co-chair of the Energy and Technology Committee. “The energy industry needs to be really aware of getting out in front of the issues that plague them.”
Like fracking waste.
The bills being written range from banning specific forms of fracking waste to banning it, period. The bill the Malloy administration seems to be embracing most seriously, however, would pave the way to treat the waste here.
Some see that as only fair given the emphasis Gov. Dannel P. Malloy and the Department of Energy and Environmental Protection have put on increasing the use of natural gas for heating and the need for more gas sources (and pipelines) for the region’s power plants.
“I want to protect Connecticut from fracking waste,” said Reed. “But I don’t want to be one of those states that say, ‘We want your gas, but we don’t want the byproducts.’”
The byproduct of fracking is vast amounts of water containing chemicals used in the process. The waste also includes substances picked up from the ground, such as large amounts of salt, naturally occurring toxins and even radiation.
There are a handful of options for dealing with the waste:
- It can be re-injected into the ground for storage – known as deep well injection. But the ability to do that in the Northeast is far more limited than in western fracking areas;
- The wastewater can be reused for multiple fracking operations, though eventually it will have to be dumped, and what’s left will have highly concentrated levels of the various substances in it;
- It has been put in retention ponds or spread on land, allowing the water to evaporate – something difficult to do in the humid Northeast, and many think it’s of questionable safety;
- Or, the waste can be treated and discharged into a body of water, as other wastes are. And that’s where things get tricky.
Under federal law, known as the Resource Conservation and Recovery Act (RCRA), oil and gas production waste is exempt from being categorized as hazardous waste. That means it’s not subject to the regulations for treatment and disposal of such waste.
The legislation the governor’s office and DEEP support would essentially classify fracking waste as a hazardous waste. Some think this is legally possible, arguing, as does the Natural Resources Defense Council, that RCRA sets a minimum, and states can go beyond it. But it’s never been tested with fracking waste.
Vermont is the only state so far to take any stance on fracking – banning it, a largely symbolic move. Massachusetts is considering legislation that would impose a 10-year moratorium on fracking and would ban wastewater from treatment, storage or disposal.
Whether Massachusetts or Connecticut reaches the finish line first on fracking waste regulation, however, pushback from the oil and gas industry is expected. “I don’t think industry would sit back,” said Kate Sinding, director of the defense council’s Community Fracking Defense Project.
Reed said the state is aware of potential lawsuits. Also under discussion, she said, is whether existing regulations would be enough to treat fracking waste as hazardous or whether new ones would be needed. That begs the question of whether any regulation would send fracking waste business elsewhere.
“When you have tough regulations, calculations begin to change,” said Reed, who said she has been contacted by enterprises interested in getting into the fracking-waste processing business. “They have their calculators out.”
Business v. environmental concerns
At the Connecticut Business & Industry Association, Eric Brown is less concerned about the potential for fracking waste business than he is about not losing an opportunity to lower energy costs through use of shale gas, which he called “transformative” for the state’s business climate.
“We’re not saying not to do anything about this stuff,” Brown said. “What we’re saying is let’s be rational about it.”
He said CBIA is open to discussing whether to have regulations on fracking waste, but does not want anything that would inhibit the availability of gas or undermine regional energy efforts.
“It does not put Connecticut in a good situation to negotiate regionally on things like pipeline expansion,” Brown said. “It doesn’t make any sense for us to have parochial policy. We don’t want to put our state at a disadvantage.”
And that is why CBIA is unlikely to support another fracking waste measure likely to come up this session – one that would essentially keep all fracking waste out of the state. Similar efforts were stymied last year – one from Energy Committee co-vice chair Rep. Jonathan Steinberg, D-Westport.
“It’s both symbolic and tangible,” he said of the focus on waste. “I want a high level of confidence that we will not put the public health at risk.”
“It may be the easiest, cleanest way to ensure public health,” said Rep. Matt Lesser, D-Middletown, a member of the energy committee and the coalition that sponsored anti-fracking legislation last year. “Thanks, but no thanks. We don’t need this stuff here.”
Fracking waste ban legislation could also run headlong into federal difficulty – the commerce clause of the Constitution as it applies to interstate commerce. That was why in 2012 New Jersey Gov. Chris Christie vetoed the fracking waste ban approved by his state’s legislature.
Sen. Ed Meyer, D-Guilford, co-chair of the Environment Committee, said he is not concerned. “We have banned toxic substances that move on interstate commerce,” he said referring to bisphenol A, a chemical used in polycarbonates, and certain pesticide uses. “Without a doubt the chemical industry came after us, but they never brought a lawsuit.”
But that’s not the end of the fracking waste-related legislation likely to surface this year. A bill expected in the transportation committee would ban use of the waste on roads as a de-icer and dust suppressant – possible because of its high salt content. Several counties in New York have banned it for road-spreading, and some have also banned it from wastewater treatment facilities.
The Connecticut Department of Transportation does not use fracking waste for de-icing, but it’s still unclear whether a legislative ban could be enforced in local de-icing and especially on private property.
But one thing none of the legislation intends to do is revisit the state’s energy strategy’s reliance on natural gas.
“Some folks don’t like natural gas; some folks don’t like oil. But they want to turn their lights on, and they want to move their thermostats and have heat,” said the energy committee’s Reed, who thinks legislation on fracking waste will pass.
“But I’m not sure in the final analysis, everyone’s fears are going to be allayed.”