June 27, 2011

By Fax

Honorable Andrew M. Cuomo
Governor of New York State
The Capitol
Albany, NY 12224

Dear Governor Cuomo:

You will recall that I recently wrote to request that your Department of Environmental Conservation (DEC) revise its draft Supplemental Generic Environmental Impact Statement (SGEIS) to address the inadequate regulation of toxic gas drilling wastewater discharged into Publicly Owned Treatment Works (POTWs).

Regarding that concern, I am pleased to provide for your review some important documents from the U. S. Environmental Protection Agency (EPA). See: http://toxicstargeting.com/sites/default/files/pdfs/pages_from_foil_resp...

As you will see, EPA purportedly requires stringent gas drilling wastewater regulatory controls, but those requirements are not being enforced in New York. This may be due to a long-standing dispute with DEC regarding shared regulatory authority over wastewaters discharged into POTWs.

DEC manages the State Pollutant Discharge Elimination System permit program for direct discharges into surface and groundwaters. EPA retains primacy for the pretreatment program involving on-line discharges to POTWs. I request that you resolve this matter as part of the revision of the draft SGEIS.

EPA's Gas Drilling Wastewater Concerns

I wrote you on 4/8/11 regarding inadequate gas drilling wastewater treatment in the Finger Lakes region involving POTWs in Cayuga Heights, Canandaigua and Auburn. EPA's documents underscore many of my concerns and specify stringent regulatory requirements that DEC has utterly failed to implement.

EPA reportedly requires a thorough "discharge characterization," and notification "before the POTW may accept HFFW [hydraulic fracturing flowback water, not in the original]." EPA also notes "Because there is a significant possibility that SGE [shale gas extraction] wastewater may 'pass through' the POTW, causing the POTW to violate its permit, cause 'interference' with the POTW's operation, or contamination of biosolids, acceptance of the waste is not advisable unless it's effects on the treatment system are well understood and the wastewater is not reasonably expected to cause pass through or interference."

EPA has yet to enforce any of those requirements in New York. Gas drilling wastewater has been discharged into a wide variety of local POTWs without systematic disclosure of a) where the gas drilling wastewater originated, b) what types of gas drilling wastewater components it contained and c) all the toxic constituents that were present and in what concentrations.

Even though EPA's documents focus on Marcellus Shale horizontal hydrofracturing flowback, the agency earlier expressed grave concerns about "brine" or "produced water" and recommended regulatory efforts to address high total dissolved solids (TDS), petroleum hydrocarbons and radionuclides. A comprehensive gas drilling wastewater regulatory program is clearly warranted without further delay.

EPA also reports that a) some gas drilling wastewater components are "not significantly removed by most conventional POTW treatment systems;"

b) some gas drilling wastewater components "may result in POTW process inhibition in activated sludge, nitrification, and anaerobic digestion processes."

c) "...some of the constituents in oil and gas extraction waste, such as metals, can precipitate during the treatment process and contaminate biosolids which may require expensive decontamination of biosolids drying beds or change the chosen method of use or disposal."

d) "Bromide, which can be present in SGE wastewater in significant concentrations, has the potential to be present in POTW effluent as a disinfection byproduct and may cause an increase in whole effluent toxicity21."

Finally, EPA reports in a 4/7/11 letter that: "In cases such as New York, where the state is the permitting authority and EPA is the approval authority for pretreatment, the POTW must submit the required information to both agencies. We are working with New York State to clarify this requirement through the State Pollutant Discharge Elimination System (SPDES) permit program [emphasis added]."

This was one of the specific concerns identified by EPA in its 12/30/09 comments to DEC regarding the shortcomings of the draft SGEIS. EPA wrote: "On Page 5-121. The document states, 'Ultimately, NYSDEC needs to approve such analysis and modify State Pollution Discharge Elimination System (SPDES) permits as needed to insure water quality standards in receiving waters are maintained at all times.' For approved pretreatment programs, EPA also needs to approve the analysis [emphasis added]. This should be acknowledged in the dSGEIS."

See page 9 of the PDF posted at: http://www.toxicstargeting.com/sites/default/files/Marcellus_dSGEIS_Comm...

It is extremely troubling that such a fundamental regulatory dispute still has not been fully resolved between DEC and EPA. I request that you solve this problem as part of DEC's efforts to revise the draft SGEIS.

Conclusion: Please Do Not Release An Incomplete and Inadequate Revised draft SGEIS

In conclusion, I ask you to make sure that DEC does not release a revised draft SGEIS unless and until the agency has responded in a comprehensive manner to EPA's concerns as well as all other technical, scientific, regulatory and legal issues brought to its attention regarding horizontal hydrofracturing of Marcellus Shale. That is the mandate of Executive Order No. 41.

I also request that DEC revise its draft SGEIS to address the wide range of additional concerns identified in the more than 300 letters just sent in the last ten days to Commissioner Martens. Many of those letters specify concerns about DEC's improper regulation of gas drilling wastewater. See: http://www.toxicstargeting.com/MarcellusShale/documents/letters/2011/06/...

Thank you for considering my request. Please do not hesitate to contact me if you have any questions I might be able to answer.

Very truly yours,

Walter Hang

EPA Document Excerpts

"For SGE [shale gas extraction] wastewater, that discharge characterization should include the concentrations of total· dissolved solids, specific ions, such as chlorides and sulfate, specific radionuclides, metals,and other pollutants that could reasonably be expected to be present in wastewater from a well. In addition to the ions, radionuclides, and metals that can be expected to be present in wastewater produced from a well, the characterization should include all chemicals used in well drilling, completions, treatment, workover, or production, that could reasonably be expected to be present in wastewater [emphasis added]. Pursuant to the permit, this information must generally be reported to EPA and/or the State program before the POTW may accept the HFFW. "Adequate notice" is meant to provide the EPA (or the state NPDES permitting authority) with enough time to determine if the POTW NPDES permit needs to be modified in order to address potential effects due to the potential new indirect discharger.

Constituents in SGE wastewater such as total dissolved solids (TDS) have been found to be present at concentrations ranging from 280 mg/l to 345,000 mg/1. 19 Chloride has been reported in concentrations up to 196,000 mg/1.20 TDS is not significantly removed by most conventional POTW treatment systems; therefore, pretreatment of the wastewater would be required prior to discharge to the POTW. However, very little comprehensive data have been collected nationwide on TDS treatment capability at POTWs. Common constituents of TDS include calcium and magnesium (also a measure of"hardness"), phosphates, nitrates, sodium, potassium, sulfates, cWoride, and even barium, cadmium, and copper. A literature data search revealed that some of these individual constituents of TDS may result in POTW process inhibition in activated sludge, nitrification, and anaerobic digestion processes. POTWs may exhibit these process inhibitions from these individual constituents at concentrations that are several magnitudes lower than the composite TDS found in: SGE wastewater (example: sulfate at 400-1000 mg/l disrupting anaerobic digestion processes; chloride at 180 mg/l disrupting nitrification processes21 ). High concentrations of chlorides, such as in Marcellus SGE wastewater, can disrupt biological treatment units [emphasis added]. Some POTWs that had previously accepted oil and gas extraction waste through their pretreatment programs experienced operational problems due to high concentrations and spikes in concentrations ofTDS.22 In addition, some of the constituents in oil and gas extraction waste, such as metals, can precipitate during thetreatment process and contaminate biosolids which may require expensive decontamination of biosolids drying beds or change the chosen method of use or disposal [emphasis added]. Bromide, which can be present in SGE wastewater in significant concentrations, has the potential to be present in POTW effluent as a disinfection byproduct and may cause an increase in whole effluent toxicity21.

Because there is a significant possibility that SGE wastewater may "pass through" the POTW, causing the POTW to violate its permit, cause "interference" with the POTW's operation, or contamination of biosolids, acceptance of the waste is not advisable unless it's effects on the treatment system are well understood and the wastewater is not reasonably expected to cause pass through or interference. POTWs cannot accept Marcellus wastewater if acceptance of the wastewater would result in violations of the POTW's permit, the POTW's requirement under 40 CFR 403.5(c) to develop and enforce local limits to implement the general and specific prohibitions of403.5(a)(l) and (b), or contamination that interferes or disrupts biosolids processes, uses, or disposal. NPDES permits for discharges from POTWs to water of the U.S. also must meet applicable water quality-based requirements that are discussed in more detail in question number 21.

Radionuclides in Marcellus SGE wastewater also pose a challenge for POTWs. Radionuclides are discussed below in the response to question number 19."