Tomorrow marks the last official moment for New Yorkers across the state to speak up and have their opinions heard about the current proposal for the expansion of fracking here. The public comment period for the state’s environmental impact study (known by its full name as the revised draft Supplemental Generic Environmental Impact Statement or “RDSGEIS”) and proposed regulations on fracking is coming to a close.

As the deadline approaches, NRDC is putting the finishing touches on more than 500 pages of detailed technical and legal comments - both from scientific experts and our own expert legal staff - to add to the more than 20,800 comments the state has received so far, and the thousands more expected tomorrow.  (A link to our full comments will be made available as soon as they are submitted.) 

Although it would be impossible to give a complete rundown of what we will be submitting, I wanted to share just a few of our top-line takeaways.

First and foremost, although there were some notable improvements and it’s clear that DEC has done some hard work since the last review, there are still significant deficiencies in both the impact study and the regulations, demonstrating that the state is not prepared to move forward with fracking.

The bottom line: when you rush, you make mistakes, and that is exactly what happened here. Not only are critical analyses still missing and/or incomplete, but the decision to release the impact study together with the draft regulations has resulted in many of the proposed “mitigation” measures getting lost in translation.

Since July, we’ve gathered a team of experts – covering the fields of hydrology, geology, toxicology, petroleum engineering, water quality, air quality, health and others – who have provided an in-depth review and critique of the state’s findings and have likewise confirmed that there are significant parts of the review where the state needs to go back, re-do the review properly, and reissue it for public review and comment.

On top of the issues we have previously identified, this in-depth technical analysis has identified a host of additional deficiencies. Here are just five of our most pressing new concerns, each one of which, on its own, demonstrates that the environmental review process is far from complete:

• There’s no plan at all to deal with toxic wastewater.  The wastewater generated from fracking operations is among the worst our expert toxicologist has ever seen. Yet the state has absolutely no plan whatsoever for how the vast amounts of toxic wastewater expected from fracking operations would be managed.  We’ve seen the impacts of improper wastewater management elsewhere – including contaminated rivers from treatment in municipal sewage plants in PA and earthquakes from improper deep well injection in OH – and it is inexcusable for the state not to have some plan in place before allowing new fracking here.
• The scope of the action is too broad. The current version of the impact study and proposed regulations purport not only to address fracking in the Marcellus shale region, but also shale formations such as the much deeper Utica Shale, yet the study only directly looks at the impacts of drilling in the Marcellus. As our experts point out, every shale formation is different, and so are the environmental concerns with developing different regions. Separate shale formations demand their own environmental reviews. Until that happens, drilling in these other formations should be off the table.
• Health risks are omitted entirely. There’s next to zero exploration of the health impacts fracking could have on New Yorkers. Yet it is increasingly recognized that a full health impact assessment is a critical component of a thorough examination of the potential risks of fracking.  Just last Thursday, the nation’s top environmental health expert called out the need for comprehensive new analysis of the health risks of fracking.
• Flawed socio-economic analysis doesn’t calculate negative impacts. The state itself has acknowledged that it needs to re-do its socio-economic analysis because of glaring omissions. Most significantly, while overstating potential economic benefits, the report includes only 7 pages out of more than 250 on the potential negative economic impacts, when we know that there are real and substantial economic risks associated with fracking.
• Fracking could be allowed in flood zones and other critical vulnerable areas. The analysis fails to consider how the effects of climate change could result in fracking operations taking place in major flood plains, including places that were under water during Hurricane Irene last year. This presents serious pollution risks, particularly as drilling is proposed to occur in and around flood-prone communities.

Over and over, we’ve told the state to slow down, yet the Fracking Express keeps barreling forward.  Governor Cuomo rushed to push out the environmental impact study and proposed regulations after only six months in office, and the result is huge gaps in the proposed regulatory program. These are gaps that would make moving forward with new fracking not only dangerous, but contrary to the purpose of the environmental law that requires the study’s creation (the NY State Environmental Quality Review Act, aka SEQRA).

We recognize that there is significant pressure from industry to move forward, but taking the time to undertake a complete, legally sufficient consideration of the impacts of fracking is not too much to ask when the risks involved could have grave, lasting -- if not permanent -- effects on New Yorkers and communities statewide. One needs only to look next-door to Pennsylvania to see that’s true.  Fracking is the biggest environmental issue facing New York in a generation, and Governor Cuomo must stay true to his word that he will not authorize any new fracking unless the risks have been properly and fully evaluated, and necessary safeguards identified and implemented.

Last Friday, Governor Cuomo’s Department of Environmental Conservation released its as-yet-incomplete revised draft environmental review on proposed new fracking (the so-called “Preliminary Revised Draft Supplemental Generic Environmental Impact Statement” or “revised DSGEIS”).  As I blogged a little over a week ago, this document represents the latest step in the on-going environmental review process being undertaken by NY in an effort to evaluate the risks of proposed new gas drilling before allowing new drills to break ground.

Later this summer, DEC is expected to release the complete revised draft document, at which time it will hold a formal public comment period.  In the meantime, this preliminary draft gives us a strong indication of the direction in which the state is proposing to go.

As we begin our in-depth review of the new document, we wanted to post our initial reactions on some key elements.  We do so with the important caveat that we, like many others across the state, will be taking our time – and relying on the input of a highly qualified team of specialized experts – to review the document comprehensively.  So this list of first reactions should be treated as only a very preliminary one.  As our review proceeds, we are sure to have much to add.

The basic takeaway is this.  As I last blogged (on the basis of the press release issued by DEC in advance of reviewing the full document), there are some real and important improvements in this new draft over the deeply flawed one issued under the former Paterson administration.  These represent a step in the right direction toward appropriate regulation of this dangerous and controversial activity.  But, as ever, the devil is in the details.  On reviewing the document released last Friday more carefully, it is clear that there remain some very serious gaps in DEC’s proposed regulatory approach that must be filled if the state is going to fulfill its promise to be the first in the nation to assure that human health and the environment are protected to the maximum possible extent before moving forward with risky new fracking.

As The New York Times editorialized Friday, “The final environmental assessment and the detailed regulations to follow must be tightly drawn before New Yorkers can be confident that the gas will be extracted with minimum risk.”

Following is a list of some initial top-level concerns:

The New York City and Syracuse Watersheds.  The upstate watersheds that supply half the state’s population with unfiltered drinking water serve as a national model for watershed protection and sustainable economic development.  In the revised environmental review, DEC states that it will not issue permits, and will propose regulations that prohibit any fracturing, within these watersheds.  This is an extremely positive development.  However, the 4,000-foot buffer area proposed around these watersheds is not enough to prevent horizontal drilling from actually taking place under the watersheds, as horizontal drilling could extend up to a mile (5,000+ feet) in length from a well pad located outside this buffer area.  If these areas are to be fully protected, the agency will have to clarify that it will not allow any horizontal drilling to occur under the watersheds.  (As for the adequacy of the 4,000 foot buffer itself, and every other buffer discussed below, we await the input of our technical experts.)

NYC Water Supply Infrastructure.   As shown on the map below, the reservoirs of the west-of-Hudson portion of the NYC watershed (which lies above the Marcellus Shale formation and supplies 90% of NYC’s drinking water) are connected by a system of tunnels and aqueducts, significant portions of which fall outside the boundaries of the watershed itself.  In a crucial blunder, the state is not proposing to put this infrastructure off-limits to new drilling.  These tunnels, the building of which commenced back in the 1940’s, are already in a dilapidated state.  The Delaware Aqueduct – which transports about 50% of the water from the west-of-Hudson watershed to the City – has been leaking 30 million gallons of water per day for more than two decades, which DEP is currently undertaking a $2.1 billion project to address.

We are concerned about two specific risks from drilling on or around the infrastructure:

 1)  a threat that vibrations and shaking from drilling activities could jeopardize the stability of the tunnels themselves; and

 2)  a threat that fracking fluids or other contaminants could migrate in and around the vicinity of the drilling rigs and enter the tunnels via small cracks or fissures in the tunnel walls – potentially contaminating NYC’s drinking water even if the watershed itself is protected

Based on like concerns, DEP proposed a 7-mile buffer to protect this critical element of the City’s drinking water system in its comments on the initial DSGEIS.  

In light of these risks, the state’s proposed approach appears to represent a dire threat to New York City’s drinking water supply.  DEC needs to prohibit drilling around any infrastructure that falls outside the watershed limits.

Private Water Wells.  The state is proposing to require a 500-foot setback from any private drinking water wells in which drilling would be prohibited.  This is substantially greater than that required in other states.  But, among other concerns, DEC inexplicably would allow individual landowners to waive that 500-foot buffer.  In theory, DEC’s 500-foot buffer is based on the best available scientific evidence as to what is necessary to protect public health and drinking water supplies. The government has a responsibility to protect and ensure clean drinking water for its residents by putting this buffer in place. They should not put landowners in a position of balancing potential economic gain against risking their health and safety.  

Regulations.  In a very welcome development, the state is now saying it will conduct a rulemaking process that would formalize its proposed safeguards in a single set of uniform, legally enforceable regulations.  This is critical.  Currently, the agency relies upon an ad hoc mix of 25-year-old regulations, a nearly 20-year-old environmental impact statement, guidance documents, and permit conditions to regulate drilling.  This is a highly technical, and impactful, industrial activity, and the public is entitled to the certainty and transparency that can only come through comprehensive, consistent regulations that are up-to-date with the current technology in use.

Unfortunately, DEC has said that it would begin processing permit applications for new fracking after completion of the environmental review process and before finishing the rulemaking.  This makes no sense whatsoever, and threatens to undermine the very public confidence that a rulemaking could otherwise assure.  Particularly given that DEC says it expects to process very few applications during that time, there is no justification for such an approach.

Waste.  Despite all the problems we have seen caused by toxic wastewaters and solid wastes from Colorado to Pennsylvania, the state is still proposing that contaminant-laden, potentially radioactive drilling and fracturing fluids, mud-drilled cuttings, pit liners, flowback water and produced brine be classified as non-hazardous industrial waste.  Fracking waste does not belong in landfills or standard wastewater treatment plants – it needs special care like all other hazardous waste to prevent contamination after it has been thrown away. Given the danger many of these fluids pose – and the fact that if not for a special regulatory loophole, they would certainly in many cases be classified as hazardous waste subject to DEC’s full regulatory program – this approach is unacceptable.  While DEC proposes a tracking system for solid and liquid wastes generated in connection with fracking, similar to that which is required for medical waste, this system does not go far enough to protect New Yorkers from serious public health threats associated with inadequately regulated hazardous wastes.

Chemical Disclosure. For years, the public has been calling for the gas industry to reveal what chemicals it is using, how much of them and in what combinations, to frack near our water supplies – so far to little avail. Fortunately, in the draft environmental review, the state would effectively require companies to provide this information to DEC both pre- and post-fracking.  The state would also require disclosure of this information to health professionals and employees in the event of an emergency.  For the public, the document would require companies to disclose this same information, unless that information is classified by the company as “confidential business information,” better known as “trade secrets.”  In the case of alleged trade secrets, DEC can require full disclosure only to the agency itself.

This approach goes further than that in other states and is similar to the national FRAC Act (which NRDC strongly supports). It is fundamental to addressing the dearth of data that exists nationally and which the state itself bemoans, by enhancing the state’s ability to investigate future claims of water contamination.  It will also help health professionals better treat people who have been exposed to fracking chemicals.

Legal limitations likely prevent DEC from going one step further and requiring disclosure of this information, regardless of “trade secrets,” to the general public.  For this reason, it is incumbent on the companies to stop hiding behind the “trade secret” excuse.  We’ve heard this same excuse over and over from the industry to keep the public in the dark about what chemicals they’re using near our drinking water supplies (even on their own, voluntary, so-called “disclosure” website). Gas corporations owe it to the general public to disclose every single chemical they use if landowners are ever to have the ability to monitor drinking water conditions on their own properties.

Reconsideration of Buffers. Another troubling issue is that some of the state’s “prohibited” buffer areas (e.g., those around primary aquifers (those which serve as public drinking water supplies), principal aquifers (those which could serve as public drinking water supplies) and tributaries thereto) include “reconsideration” provisions that would allow the state to consider permitting drilling in buffer zones within 2-3 years of measuring “actual experience and impacts associated with permit issuance.”  This wording is vague, and sounds dangerously like an open door to cut back on buffer areas that are, in theory, based on the best available scientific evidence.  Absent any indication of how the agency intends to assess the “actual experience” in permitting drilling elsewhere, these reconsideration provisions should be withdrawn.

State-Owned Land.  DEC is proposing to prohibit well pads for fracking on “certain state-owned land,” which is a welcome development.  However, as far as we can tell, this prohibition applies only to surface disturbances (as opposed to fracking beneath such lands).  Fracking should be prohibited under any of these lands.

Cumulative Impacts.  The state appears to analyze cumulative impacts only with regards to water withdrawals, certain air pollutants and habitat fragmentation.  While this is an improvement over the agency’s nearly complete disregard for cumulative impacts analysis in the prior environmental review under the Paterson Administration, further examination appears to be warranted. The impacts of fracking are all interconnected and can transform entire communities – they do not stand alone. The state must evaluate the impacts as a whole.  (We do note that the community impacts chapter is yet to be released.)

Open pits.  According to the latest draft, based on an assertion by industry that it is unlikely to use open pits or impoundments for storage of wastewaters, the state is proposing to require a site specific environmental review prior to permitting any such pits.  While this is an improvement on the last draft’s proposal to allow open impoundments, it doesn’t go far enough.   These pits – whether on individual well pads or in centralized locations – should be outright prohibited.  Industry’s reported assertion makes clear that there are available alternatives, and the risks of leaks, spills, overflows, etc. from these pits are too great.

Public Comment Period.  Finally, as mentioned, DEC has said it will formally issue the complete revised environmental review in approximately late August, at which time it has said it will provide a 60-day formal public comment period.  This is inadequate.  The agency provided 90 days on the last draft, and this one already appears to be more comprehensive.  We believe no less than 120 days is necessary to give the document a full and fair vetting by the public, and an adequate opportunity to weigh in.  It is also crucial that DEC provide for formal public hearings across the potentially affected parts of the state.  Last time around, we had to fight to get a hearing in NYC, even though its 8 million residents clearly stand to be impacted if its water supply is not adequately protected.  We shouldn’t have to go through that again. The risks here are great, and should not be taken lightly. That means giving the public sufficient time to weigh in, and be heard.

Again, these are just our initial reactions based on our preliminary review, and we will have much more to come as our review proceeds.

Correction: This post previously said DEC was allowing companies to withhold full disclosure from the agency on the basis of a “trade secret” exemption. The text was corrected to reflect that DEC will require companies to provide disclosure of all chemicals used to the agency, both pre- and post-fracking.

In the New York Times’ ongoing “Drilling Down” series, which has been providing groundbreaking coverage of the potential dangers of industrial gas drilling, three articles appeared in the past two days that call into question the industry’s economic forecasting of shale gas drilling (see here, here,  and here).  Specifically, the articles focus on emails obtained by the Times in which scientists, energy experts, senior industry executives and government officials express growing concern that gas companies are overestimating, perhaps intentionally: (1) the present and future supplies of domestic natural gas; (2) the production times of fracked wells; and (3) the overall profitability and potential economic boon of shale gas production.  According to the articles, the industry is essentially painting an exaggerated picture of good things to come which may be misleading investors, landowners and regulators.

The internal e-mails and documents that the Times relied on for its stories show industry officers and federal officials concerned that companies are perhaps intentionally overstating the amount of gas they can economically produce in a given period.  Known as “overbooking,” this practice is illegal because it misleads investors.  One energy market analyst, who was reportedly fired from Merrill Lynch in 1998 for refusing to recommend Enron stocks, compared the gas industry now to what he saw with Enron, and ultimately, to Alice in Wonderland.  (Some of the most telling details can be found in the text of the emails themselves, all of which are reproduced on the Times’ website.)

As usual, the real victims are not in industry board rooms or government offices but on the ground in places like Fort Worth, Texas, where homeowners deal with air and water pollution problems and, according to the articles, several churches that signed leases on the promise of big money from massive gas wells instead end up not making royalties and owning land that may no longer be tax exempt. The articles raise the prospect that if development isn’t as profitable as its proponents contend – and some companies even go bankrupt – others may find themselves holding the bag for an industry that can’t pay the bill when the tab comes due to clean up contamination or properly close abandoned wells.

The take-home message from the skepticism voiced by industry experts should be clear for landowners and regulators across the country: If you can’t count on the supposed upsides of yet another risky fossil fuel-based extraction, there is even less justification to rush forward with high-volume fracking without first ensuring that necessary environmental and health safeguards are in place. 

Here in New York, Governor Cuomo seems to be holding his Department of Environmental Conservation to arbitrary deadlines in an effort to move drilling forward.  He has directed the agency to release a revised draft of its assessment of the environmental risks associated with fracking on July 1st, despite the fact that it is reportedly not yet complete.  Indeed, DEC stated earlier this year that it was still processing the almost 14,000 comments received on its first (deeply flawed) draft, raising serious questions about how an agency – even one with the best of intentions – which has been subjected to repeated and disproportionate staffing cuts could have adequately addressed the many deficiencies in the original document.

As we have often observed, New York has the opportunity to serve as a national model of how to properly apply the precautionary principle to ensure that the state’s resources and the health of its citizens are protected before moving forward on the promise of a quick buck.  In light of this most recent series from the Times, the importance of holding firm and taking the time to do it right is only amplified.

“I love my New York water.”

That’s what a group of New York-based actors are saying in a new video that aims to keep the state’s drinking water safe from the dangers of fracking. NRDC, with a coalition of environmental and health advocacy organizations, today launched the new online video, which is narrated by Ethan Hawke, and also features actors Mark Ruffalo, Zoe Saldana, Amy Ryan, Josh Charles and Nadia Dajani.

For the new spot, the actors invited cameras along for a cup of tea, a walk with the dog, a fly fishing trip and even a bath to show how much they love their world-class New York water. And they encourage their fellow New Yorkers to show how much they value their safe drinking water by getting involved – urging them to visit the coalition’s website, Clean Water Not Dirty Drilling.org, to take action to protect against proposed fracking in the state.

Fracking, or hydraulic fracturing, is a risky method of drilling for natural gas that has been tied to water contamination and a host of health and environmental problems in every state where it’s currently received a green light. New York is the latest battleground in the fracking controversy – and gas companies are anxious to break ground here while the state considers whether to allow them to proceed.

This new video comes at a critical time here. There is new evidence that Governor Cuomo is dangerously rushing forward to allow new fracking in New York before allowing sufficient time for officials to undertake a full environmental assessment of its risks. And the state legislative session is drawing to a close with important unfinished fracking-related business.

In an apparent effort to appease the gas industry, Governor Cuomo sent a memo to his Department of Environmental Conservation at the end of May, directing them to deliver their environmental review of fracking in the state no later than July 1st. While the governor’s memo also contains some distinctly positive aspects – including a directive that DEC evaluate a recent major blowout of a Chesapeake Energy well next-door in Bradford County, PA, and other fracking-related accidents in Pennsylvania and elsewhere – its evident intention to rush the state’s crucial, potentially groundbreaking review of the environmental and health impacts of proposed new gas development is extremely troubling.  DEC Commissioner Joe Martens has been clear that he is taking his charge to fully assess the risks very seriously, and he and his staff deserve all the time and resources necessary to do that job right.

Holding DEC to an arbitrary – and unnecessarily tight – deadline doesn’t do anyone any favors, and enhances the chances that the state will not sufficiently protect its residents from the dangers associated with fracking. (This does not even provide nearly enough time to address the multiple fatal deficiencies in an initial review that was thrown out last year because it was so woefully inadequate.)

Instead, the state should be taking all the time necessary to review this new, complicated, and potentially very dangerous industrial process before allowing it to proceed here. The risks of doing otherwise – including jeopardizing the safe drinking water for millions of New Yorkers, across the state and including all of NYC – are far too great.

Meanwhile, on the legislative front, legislators still have the opportunity – though time is running out! – to enact three important measures before they adjourn on June 20th.  With indications from Governor Cuomo that he may rush through the review process by the end of the month, it is more important than ever for the legislature to do what they can to protect New Yorkers and pass these bills.

Specifically: The first bill would close a gaping loophole by classifying fracking waste as hazardous. This would require highly toxic fracking waste products to be treated as all other hazardous waste, no longer allowing it to be disposed of like garden variety trash in the state’s landfills or household wastewater at treatment facilities.  The second would give DEC new authority to regulate water withdrawals from the states’ rivers and streams for use in fracking and other industrial activities in order to ensure they are protected in the process.  And third, but by no means the least, a bill that just passed the Assembly on Monday would issue a moratorium on new fracking permits upstate for another year (until June 1, 2012). In light of the governor’s attempts to speed drilling along, this measure is critically important to at least give DEC this much more time to evaluate the risks.

Now is the time for Governor Cuomo and our elected officials in Albany to hear New Yorkers loud and clear. We’re relying on them to protect not only our drinking water – but our health, clean air, property values, landscapes and community character – from fracking. Rushing the environmental review is not only foolish, but unpopular. 

Our deepest thanks go out to Ethan, Mark, Zoe, Amy, Josh and Nadia for lending their voices to stand up for New York’s world-class drinking water, and drawing attention to this serious environmental and health issue that’s confronting not just New Yorkers, but Americans across the country. We owe it to the rest of the U.S. to get it right here, and set the national standard for how to protect residents from fracking. But that will take time – and New York certainly can’t do it justice in less than a month.

TAKE ACTION: Tell Governor Cuomo to protect us from fracking here. And urge your legislators to pass the unfinished fracking business here.

We have a few ways you can keep up with our work online: Please visit our website at www.nrdc.org/newyork or follow us on Facebook and Twitter.