We have been saying for some time that New York’s Department of Environmental Conservation has not adequately considered how to manage the potentially billions of gallons of highly contaminated wastewater that would be generated should the state approve new high-volume fracking. We have argued that there are few palatable options for handling this toxic byproduct, and that it therefore poses serious risks to our water supplies and public health. A new report from NRDC confirms, on the basis of scientific assessment of Marcellus Shale wastewater data from neighboring Pennsylvania, that we have been right.

The upshot: unless and until the state takes this issue seriously and figures out whether, and if so how, these massive amounts of potentially toxic wastewater would be managed, it cannot responsibly move forward with proposed new fracking.

The report, titled “In Fracking’s Wake: New Rules Are Needed to Protect Our Health and Environment from Contaminated Wastewater,“ was jointly prepared by NRDC (legal/policy analysis) and Carnegie Mellon professor of civil and environmental engineering, Jeanne VanBriesen (scientific/technical analysis). As described more fully by my colleague, Rebecca Hammer, it analyzes the problem of wastewater generated from fracking, particularly with regard to the Marcellus Shale region. It shows that, while fracking generates huge quantities of polluted wastewater – threatening the health of drinking water supplies, rivers, streams, and groundwater – federal and state regulations have not kept pace and must be significantly strengthened to reduce the risks of fracking throughout the Marcellus region and nationwide.

The report evaluates the five primary methods of fracking wastewater management – recycling for additional fracking, treatment and discharge to surface waters, underground injection, storage in open air pits, and spreading on roads for ice or dust control – and concludes that current rules at the federal and state level are inadequate to protect health and the environment.  While with improved safeguards some may be more desirable than others (e.g., recycling and deep well injection), none is without real impacts (e.g., energy intensive processing and concentrated residual waste for recycling, earthquakes for injection). Some approaches are so risky, e.g., road spreading and treatment at publicly owned treatment works, they should be outright banned.

Moreover, the report makes clear that the wastewater problem – while of significance nationally – is particularly vexing in the Marcellus Shale region. This is largely due to the fact that underground injection, the preferred disposal method in most of the country, is thought to be geologically unavailable in most of Pennsylvania and New York. As a consequence, most of Pennsylvania’s Marcellus wastewater has been being discharged into surface water bodies that serve as public drinking water supplies after treatment at publicly and privately owned treatment facilities. Treatment at publicly owned facilities over the past several years had created significant water quality issues, as a result of which the state requested that the practice be ended. The report concludes this approach should be categorically taken off the table.

Currently, significant quantities of Pennsylvania’s wastewater are being shipped out of state for deep well injection in Ohio, which may have its own concern about becoming the region’s “dumping ground,” and which carries with it the risk of earthquakes if not better regulated. It also means massive amounts of truck traffic, often on narrow, country roads. Some additional wastewater is being used for dust suppression or ice removal through road spreading – another option that should be flat out prohibited because of its risks to groundwater quality. The rest is being managed in a handful of industrial waste treatment facilities or through recycling. As the report indicates, both of these approaches themselves raise questions and concerns (including regarding the energy intensity of treatment technologies and what becomes of concentrated residual waste) that need to be better addressed through further research and tighter regulation.

In our comments on New York’s revised draft environmental review (the RDSGEIS), we stressed that the threats presented by huge quantities of contaminated wastewater from proposed new fracking had not been sufficiently considered by DEC, and argued that the state could not legally – or responsibly – move forward with its fracking proposal unless and until it did so and developed a comprehensive wastewater management plan.

Toxic fracking waste is exempt from federal and state rules for hazardous waste. We have long urged that critical first steps are for the state repeal to its regulatory exemption and for EPA to write new rules so that the waste becomes subject to the full cradle-to-grave regulatory program that applies to hazardous waste generated by any other industry.

This new report underscores the urgency of this point, and reiterates why it would be so foolhardy for New York to start permitting new fracking without having given due consideration to where and how the massive amounts of polluted wastewater will end up.

Pennsylvania, in the meantime, has much more work to do to bring its own rules into line with the report’s recommendations if it is going to adequately protect the public and environment.

An independent scientist has confirmed that fracking has clearly contaminated a drinking water source east of the town of Pavillion, Wyoming, supporting the findings in a draft EPA report published in December.

This is not only important news for residents of the small town with contaminated water-– but it has national significance as well. While oil and gas corporations enjoy exemptions from critical protective environmental provisions in the Safe Drinking Water Act and Clean Water Act, they have continued to publicly claim there has never been any proof that fracking has contaminated drinking water--despite reports of suspected cases from around the country.

The reason the oil and gas industry has been able to get away with saying that to date is that there has never been sufficient investigation to determine whether or not fracking is to blame. And industry has paid millions of dollars in legal settlements to Americans across the country, silencing them with nondisclosure agreements so that companies can continue to publicly deny responsibility for problems.

So EPA’s findings in December marked some of the first official evidence that fracking is a threat to drinking water (Bainbridge, Ohio is another spot), and today’s expert report backs the agency up.

NRDC, the Wyoming Outdoor Council, Sierra Club and the Oil and Gas Accountability Project commissioned independent hydrologist Tom Myers to review EPA’s draft report, and are officially submitting his findings to the U.S. EPA as technical comments.

Residents of the Pavillion area have been complaining about poisoned drinking water and serious health symptoms they believe are related to fracking and, in 2009, EPA detected contamination in 11 drinking water wells in this ranching community. The contaminants included toxic chemicals that are used in the fracking process and the draft findings from the EPA investigation into the cause, released in December, pointed the finger at nearby fracking.

My colleague Briana Mordick and I have been blogging about Pavillion and the investigation. Briana outlined the EPA's findings, including that ground water near Pavillion has been contaminated by chemicals used in hydraulic fracturing, and that those chemicals most likely reached groundwater through subsurface pathways.

The EPA is accepting public comment on its draft investigation through October, 2012. After the public comment period, a peer review of the draft report will be led by a panel of independent scientists.

Today, NRDC and our partner groups submitted a comment letter, accompanied by an expert technical review conducted by independent consulting hydrologist Tom Myers. Among Dr. Myers's findings:

Chemical contaminants found in Pavillion domestic water wells and EPA's monitoring wells have been linked to either the gas well production or hydraulic fracturing process.

The EPA's investigation is scientifically sound and demonstrates in a scientifically reliable way that chemical contaminants from the gas production zone reached the geologic formations between the gas production wells and the domestic water wells in the area.

There are higher than background concentration levels of potassium and chloride that support the conclusion that the source of those chemicals is hydraulic fracturing fluid emanating from the gas production zone.

Several synthetic organic compounds found in the EPA monitoring wells are apparently linked to hydraulic fracturing fluids, as there is no scientifically viable alternative explanation.

The EPA report demonstrates that it is the gas production process itself that has caused contamination in the domestic water wells of the Pavillion area.

EPA's monitor wells were carefully constructed and sampled using proper purging methods and could not have affected the existing groundwater chemistry.

The bottom line is that the EPA investigation is scientifically sound, and its conclusions critically important for helping scientists and the public to understand the threats to drinking water posed by fracking.

These findings only serve to underscore why we need strong rules on the books that safeguard the American public from drinking water threats from fracking--including closing the Halliburton loophole in the Safe Drinking Water Act that allows the oil and gas industry to cut corners and put our water supplies at risk. We look forward to the final EPA report after continued investigation and peer review.

They say that numbers don’t lie—which sure is the truth when it comes to the growing movement against industrial shale gas drilling and hydraulic fracturing.

Yesterday in Albany, well over 600 New Yorkers from across the state were out in force for the Hydrofracking Day of Action, a few hundred more than for the event in 2011. And this on the heels of last week’s final submission of comments on draft state guidelines and regulations, which early estimates put at over 40,000--more than triple than the first round of comments in 2009.

At a morning rally, the voices of celebrities, policymakers, and representatives of environmental and citizens groups rang out. Whether calling for an outright ban, stronger regulation and accountability, or alternative energy solutions, they all made their goal clear: Governor Cuomo and state leaders must do whatever it takes to protect New York’s water, air, and communities from the dangers of fracking.

Following the rally, participants dispersed for meetings with nearly every office of the Assembly and Senate, putting forth several shale gas-related bills that will be top priorities for activists and organizations during the current legislative session.

And then by the end of the day, news broke that the U.S. Energy Administration had drastically cut estimates of gas in the Marcellus Shale by 66 percent--making it seem even more reasonable for citizens not only in New York, but also nationwide, to question whether the risks of extraction are worth getting a little more gas.

As they decide how to cast their votes, New York's elected officials would be wise to do the math and make a serious and unshakeable calculation—one in which a healthy energy future is weighted far more heavily than unsafe energy development.