updated 12/10/15
Chemung County Landfill
On August 4, 2011, NYSDEC Commissioner Joseph Martens issued a decision on a petition brought by Residents for the Protection of Lowman and Chemung challenging the legality of disposing Marcellus Shale drilling wastes from Pennsylvania owing to naturally occurring radioactivity in the waste. The Commissioner dismissed the petition on procedural grounds, reasoning that no physical expansion was requested, and no change in the wastes accepted at the landfill was requested, so the concern is irrelevant to the permit modification. But to his credit the Commissioner nevertheless directed NYSDEC Staff to conduct a dozen or so investigations into safety measures. A summary of the decision can be found here. The decision in full is available here.
Citizens had an opportunity to comment on these issues again in 2013 and in 2015, because the Hyland Landfill in Angelica requested a waste rate increase, and Hyland takes large volumes of Marcellus Shale drill cuttings plus solidified Marcellus Shale wastewater, sludges, filtration residues and spill-contaminated soils from Marcellus Shale drill sites in Pennsylvania. Over 4,000 comment letters were submitted in 2013, most opposing the permit modification based on the risks of releases of fracking wastes. However, the regional DEC office issued the permit, dismissing the comments as irrelevant on the authority of the 2011 Commissioner's decision in the Chemung County Landfill case.
In late 2015 the Chemung County Landfill requested a permit modification that would allow a major expansion of the landfill. The year before the County Legislature reviewed an environmental impact statement but said that it would not consider comments on the consequences of accepting one-half to one-third of the landfill's waste from Pennsylvania drilling wastes.
When DEC opened a public comment period on the new permit modification in November-December 2015, again hundreds of comment letters were submitted opposing the permit modification based on the risks of releases of fracking wastes. This time commenters pointed to evidence that the landfill's leachate had become more radioactive than samples of drill cuttings the landfill operator used to show fracking waste is benign. Residents for the Protection of Lowman and Chemung linked this to new infomation, that the expansion area is located over a principle aquifer, triggering a siting prohibition and heightening concern about the risk of releases. The "treatment" of the leachate at the Elmira water treatment plant, which is unable to remove any radioactivity from the leachate before discharging it to the river, is also identified in the comments as a serious concern. Radium-226, the source of the radioactivity in the leachate, and a marker for fracking waste, bioaccumulates in aquatic environments resulting in fish consumed by anglers and their families having much higher concentrations of radium than what is discharged into the river. (This comment letter and others are available via a link below.)
Until 2005 the Chemung County Landfill was a county landfill. The County generates 60,000 to 80,000 tons of solid waste for disposal per year. All of that went to the landfill, very little came to the landfill from anywhere else. In 2005 the County leased its integrated waste management operations --the landfill, a recycling facility, transfer stations and several other facilities-- to a subsidiary of Casella Waste Systems of Vermont, New England Waste Systems of New York (NEWSNY).
In late 2009 NEWSNY began disposing drill cuttings from Marcellus Shale drilling sites in Pennsylvania. The company did not notify DEC until December, and DEC approved the practice on January 21, 2010, by email. By March and April of 2010 over half the total waste receipts for the landfill were Marcellus shale drilling wastes, over 60,000 tons per year. Also in March and April of 2010 NEWSNY accepted about 180 tons of contaminated soil from Marcellus shale drilling sites in PA, contaminated by spills of fracking fluid. (About 30 percent of fracking fluid injected into Marcellus Shale wells returns to the surface as waste.) Both kinds of waste are can be about 25 times more radioactive than background at the surface.
Soon after DEC approved this practice NEWSNY applied for a modification of the landfill's permit to increase waste volume 50 percent, from 120,000 to 180,000 tons per year, and began diverting county waste to other landfills in order to devote the space to drill cuttings. Because drill cuttings displace only about one-forth of the landfill's permitted air space (the permit limits the height of the landfill), by charging the same per-ton fee for drill cuttings NEWSNY makes four time more money than it does by disposing other solid wastes.
During the proceeding initiated by RFPLC's challenge, NEWSNY disclosed that since 2009 it has been disposing Marcellus Shale drilling wastes in Angelica (Hyland Landfill) and Painted Post (Hakes C&D Landfill) as well as the Chemung County Landfill. It has since come to light that Marcellus Shale drill cuttings are also being disposed at Modern Landfill in Niagara County, NY.
This is occurring after comments in 2009 by New York State Department of Health, USEPA, and a number of environmental scientists and organizations called on DEC to study the risks and benefits of Marcellus shale gas development, including the question of how to manage low-level radioactive solid and liquid waste.
Marcellus shale drilling wastes
RFPLC argued, through its radioactive waste expert Dr. Marvin Resnikoff, that Marcellus Shale drill cuttings are unusually radioactive, owing to a high concentration of Radium-226, a decay product of Uranium-238 which is known to occur in high concentrations in shale formations that originate in briny conditions of ancient evaporative sea water; that Ra-226 (unlike U-238) is soluble in water; and that, as a result, brine and cuttings returned to the surface during well development concentrate Ra-226 by separating the radium from the uranium remaining in the formation. Ra-226 in the formation is about 25 times more radioactive than background radioactivity in the surface environment (which is already elevated everywhere owing to fallout from past nuclear bomb testing) and the water surrounding wet drill cuttings as they come up from a wellbore can be as high 1,000 times background. Dr. Resnikoff had been working for over ten years in the Barnett Shale gas fields in Texas, which is a similarly briny shale formation.
Dr. Resnikoff's assertions have since been confirmed by a 2011 study prepared by the U.S. Geological Service.
Radium is particularly hazardous because when ingested by either inhalation or by drinking contaminated water, it concentrates in the bones, and a substantial portion seeks out soft tissue in the body, particularly bone marrow. It is thus linked to bone cancer and leukemia, which is usually fatal. Ra-226 is also bioaccumulative, so absorption of the radionuclide by aquatic plants and microorganisms become increasing concentrated in the bones and issues of aquatic animals as smaller life forms are ingested and move up the food chain, resulting in the highest concentrations in fish. This has been the basis for EPA's primary drinking water standards for radium since 1975.
Casella was accepting dewatered but still wet (and often leaking) loads of cuttings hauled from Pennsylvania drill sites. This raised the issues of exposure from road dust contaminated by leaking trucks as well as the effect of relatively high concentrations of Ra-226 in the waste mass of the landfill, and the leachate generated by the landfill and hauled to the Elmira water treatment plant, ultimately discharged into the Chemung River.
RFPLC's attorney argued that New York's landfill regulations prohibit disposal of naturally occurring radioactive materials if they are also "processed" and "concentrated." DEC Staff argued that Marcellus Shale drill cuttings are more like gravel mine wastes and are neither processed nor concentrated. On this argument, it does not matter how radioactive the wastes are; they can be legally dumped in a New York landfill.
RFPLC also argued, through its engineering expert, Cornell University Professor Anthony Ingraffea, that unlike gravel mine wastes, drill cuttings are dewatered and otherwise processed in a variety of ways before being readied for hauling to a landfill. Dr. Ingraffea was one of the pioneers in researching hydraulic fracturing over two decades ago, when the mechanics of deep rock fracturing was first developed.
None of these arguments prevailed against DEC Staff's resistance. Casella submitted lab analysis of radioactivity of a limited sample of drill cuttings whose origin the company refused to disclosed, by a lab that is not certified to analyze radioactivity in waste as required under DEC regulations. The presiding administrative law judge nevertheless ultimately ruled that procedurally, it is improper to raise the issue of the nature and potential consequences of substantially altering the nature of the waste being disposed at the Chemung County Landfill in a proceeding designed to decide only whether the volume of waste the landfill accepts could be increased. On appeal, the DEC Commissioner Joseph Martens agreed and the petition was dismissed. However, based on RFPLC's concerns Commissioner Martens ordered DEC staff to undertake over a dozen additional investigations into how effective radiation monitoring at the landfill will be.
These investigations also turned out to be controversial. For example, DEC Staff allowed Casella to utilize gamma detectors at the landfill gate to determine whether haul loads of drill cuttings are excessively radioactive. However, as Dr. Resnikoff testified, Ra-226 is an alpha-radiation emitter, and alpha rays cannot pass through the skin, let alone the steel walls of a haul truck. (Health concerns are focused on pathways for ingestion of Ra-226.) These arguments were unavailing, and DEC Staff ultimately approved the use of gamma detectors as the principal screening device for radioactivity in drill cuttings.
Substandard landfill engineering
RFPLC also emphasized that the Chemung County Landfill emerged from a gravel pit in the 1960s, without bottom liners of any kind and without a siting study as would be routine today. It is located in an environmentally and historically sensitive area surrounded by farms, a growing rural population and the Newtown Battlefield, one of the most important pre-Revoutionary War battlefields in the nation. The landfill is few hundred feet from the Chemung River, in the Chesapeake Bay watershed, and very close to (if not directly over) an unconfined primary aquifer--that is, a groundwater source large enough to that it can be relied on as a supply of municipal drinking water. The aquifer beneath the site is hydrologically connected to the river.
If the landfill is allowed to continue accepting radioactive Marcellus Shale drilling wastes, a containment failure at the landfill could have catastrophic consequences. Even routine operations pose the risk of leaks and exposure of landfill workers and others who come in contact with wet, leaking drilling waste to excessive levels of radioactivity from concentrated, naturally occurring Radium-226 and -228 and their byproducts, such as radon, a known cause of lung cancer. It has long been acknowledged by EPA and others that landfills are not a permanent solution to waste management because all landfills will eventually leak.
Leachate from the Chemung County Landfill goes to the City of Elmira water treatment plant, which is unable to remove any radioactivity before discharging the treated wastewater to the Chemung River. DEC regulations allow the landfill to generate up to 20 gallons per acre per day of leachate, the liquid drained from the bottom of the landfill. The Chemung County Landfill is over 100 acres.
Several documents submitted to DEC in 2010 by all sides (RFPLC, Casella and DEC Staff) are posted below. These are listed in chronological order, since in general each subsequent submission responds to one or more submissions that precede it. The landfill's annual reports to DEC for the years 2004-2012 are posted at the bottom of this page. Comments submitted on behalf of RFPLC on March 4, 2014, raising serious questions about the County's decision to avoid consideration of the consequences of disposing more and more Marcellus Shale development wastes, are posted at the very bottom of this page.
RFPLC comment letter, December 8, 2015. (Expert reports accompanying this letter can be obtained by emailing me.)
RFPLC Petition (780K), including:
Exhibit A: DEC approval to dispose Marcellus shale "drill cuttings," via email dated
Exhibit A: DEC approval to dispose Marcellus shale "drill cuttings," via email dated
Feb. 8, 2010
Exhibit B: Technical Memorandum by Marvin Resnikoff, Ph.D., Radioactive Waste
Management Associates, "Radioactivity in Marcellus Shale," dated April 7, 2010
Exhibit C: Technical review of noise impacts of increased operations, by The Noise
Consultancy, LLC, dated April 7, 2010
NEWSNY, CoPhysics, Radiological Survey Report: Marcellus Shale Drilling Cuttings, dated
NEWSNY, CoPhysics, Radiological Survey Report: Marcellus Shale Drilling Cuttings, dated
April 26, 2010 (1,370K)
DEC Staff, Letter request for information, regarding Marcellus shale spill wastes, dated
DEC Staff, Letter request for information, regarding Marcellus shale spill wastes, dated
RFPLC, Responses to CoPhysics report:
Cover letter, dated May 18, 2010
Resnikoff response, dated May 17, 2010
Ingraffea response, dated May 17, 2010
Volz response, dated May 19, 2010
NEWSNY, Request to strike RFPLC responses, dated May 21, 2010
Hon. E. Buhrmaster, Administrative Law Judge, Memorandum Rulings on NEWSNY request to
Hon. E. Buhrmaster, Administrative Law Judge, Memorandum Rulings on NEWSNY request to
Strike, dated June 3, 2010
NEWSNY, new data on frac fluid spill wastes, proposed radiation detectors, June 1, 2010 (2.4 MB)
NEWSNY June 9, 2010 submissions:
NEWSNY, new data on frac fluid spill wastes, proposed radiation detectors, June 1, 2010 (2.4 MB)
NEWSNY June 9, 2010 submissions:
DEC Staff responses, dated June 30, 2010
RFLPC responses, dated June 30, 2010
Rulings of the ALJ, dated September 3, 2010
RFPLC appeal of ALJ Rulings, dated September 21, 2010
NEWSNY responses to appeal, dated October 12, 2010
DEC Staff responses to appeal, dated November 3, 2010
G. Abraham memo to Legislators, Disposal of low-level radioactive Marcellus shale drilling waste in New York landfills, dated September 8, 2010
DEC Commisioner Joseph Martens, Decision in the matter of the application for modification of the landfill permit, dated August 4, 2011
Region 8 Staff response to DEC Commissioner directives on remand, dated October 19, 2011
Additional submissions regarding noise impacts are available upon request.
Susan Arbetter interviews Gary Abraham and Anthony Ingraffea, Capitol Pressroom, June 29, 2011 (podcast)
Susan Arbetter interviews Gary Abraham and Anthony Ingraffea, Capitol Pressroom, June 29, 2011 (podcast)
Drs. Anthony Ingraffea and Conrad Volz featured on This American Life, "Game Changer," dated July 8, 2011 (podcast)
Chemung Co. Landfill Annual Reports
Chemung Co. Landfill, analytical results of sampling leachate
Radiological testing of leachate: Chemung County Landfill Environmental Monitoring Plan, Appx. E
Aquifer issue: correspondence between Chemung Co. and DEC, 1985-1989
Allied Waste Landfill, frack waste from Cabot in PA has Radium-226 up to 205 pCi/g (August 2012)
Sierra Club attachment: NYSDEC dSGEIS Appendix 13 (radiation concentrations in brine
Sierra Club attachment: PADEP Sampling and Analysis Plan for NORM and TENORM
Sierra Club attachment: PADEP Sampling and Analysis Plan for NORM and TENORM, Part 2
Sierra Club attachment: PADEP Sampling and Analysis Plan for NORM and TENORM, Appx. A
