CEC Comments of DEC's High Volume Hydraulic Fracturing Regulations
Citizens' Environmental Coalition represents thousands of New York residents including local groups. We are supporting a complete ban on hydraulic fracturing, because we are appalled by the extraordinary and unprecedented effort to violate NY environmental laws and jeopardize public health--all in the service of an industry that has shown no respect for this nation's environmental laws. This industry's early action related to hydraulic fracturing was to seek exemptions from eight federal environmental laws. This action alone shows us clearly how dangerous hydraulic fracturing must be. A safe activity does not need exemptions from eight federal laws.
CEC Comments to Commisioner Joseph Martens on the Governor's Announcement regarding approval of High Volume Hydraulic Fracturing for Selected Areas of New York State
This letter raises several major issues of concern:
1. New information in a 1972 Federal government research study showed the unpredictability of fracture location when using horizontal hydraulic fracturing
2. Has a Staffing Resources report been prepared that will ensure sufficient qualified personnel to monitor and ensure compliance of this industry?
3. Information on state evaluations of necessary fees that will be paid by the industry to cover all state and local government needs associated with this industry-- environmental, public health, emergency services, etc.
4. Whether the staffing resources and the fees recommended above will address the neglected and critically important State's Water Resources Management Strategy.
5. How the DEC addressed the significant comments of EPA and USGS.
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US chlor-alkali is benefiting from natural gas as more cost-competitive US PVC enters the export market
The shale gas wave in North America is expected to boost growth for the chlor-alkali market as US polyvinyl chloride (PVC) producers take advantage of cheaper ethylene dichloride (EDC) - the feedstock for vinyl chloride monomer (VCM), which is used in making PVC.
CEC reviewed and summarized Important EPA Comments on the SGEIS
Part 2 of CEC's dSGEIS Comments
Citizens’ Environmental Coalition has worked tirelessly to draft scientifically sound, comprehensive comments on the Department of Environmental Conservations’ Revised Draft Supplemental Environmental Impact Statement on High Volume Hydraulic Fracturing. A month ago CEC submitted Part One of these comments. Below you will find Part Two of our comments which we submitted on January 11th. These comments reflect serious and more specific concerns, problems, and flaws with the dSGEIS and further illustrate the inherent need for the state to ban hydrofracking.
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Part 1 of CECs dSGEIS Comments
Environmental groups and concerned citizens from around New York State have been working tirelessly to compile thoughtful, scientifically-sound comments and criticisms of the DEC’s Hydraulic Fracking SGEIS, and Citizens’ Environmental Coalition is no exception. Public outcry has even influenced the DEC to extend the comment period till January 11th. CEC’s review of scientific literature detailing hydraulic fracturing illustrates that the use of this technology in New York is a recipe for widespread damage to the environment, public health, and the economy. Additionally, CEC has found numerous problems with the analysis outlined in the dSGEIS. For these reasons, CEC is firmly opposed to the use of “High Volume Hydraulic Fracturing” in New York. Because these concerns are so alarming, we have submitted these comments not only to the DEC but also the Attorney General and the Chairs of both the Senate and Assembly Environmental Conservation Committees. Many of our overarching concerns are highlighted in this first set of comments. We have outlined our comments by topic and have bulleted our suggested recommendations. We strongly encourage to submit comments of your own and to use our comments, endnotes and additional resources to do so.
Comments can be submitted:
2.By Mail at: Attn: dSGEIS Comments, New York State Department of Environmental Conservation, 625 Broadway,Albany, NY 12233-6510.
Together we win.
Washington D.C. – Gas drilling companies routinely warn their investors of a litany of possible disasters – such as leaks, spills, explosions, bodily injury and even death – but regularly fail to mention these risks when persuading landowners to sign leases for drilling rights, an Environmental Working Group investigation found.
EWG researchers compared federal Securities and Exchange Commission (SEC) filings and natural gas drilling leases used by major companies engaged in hydraulic fracturing (fracking) and horizontal drilling and found that, at best, the leases offered only vague mentions of risks that are explicitly listed in the legally required SEC reports. Twenty-three landowners in five states who had signed or been asked to sign drilling leases also told EWG that company representatives who offered the leases made no mention of possible risks.
Find the full report here:
Did Fracking Cause the Virginia Earthquake?
"Earthquakes in the nation's capitol are as rare as hen's teeth. The epicenter of Tuesday's quake was in Mineral, Virginia, which is located on three very quiet fault lines. The occurrence of yet another freak earthquake in an unusual location is leading many anti-fracking activists (including me -- they have just started fracking in Stratford, which is 40 minutes from New Plymouth) to wonder whether "fracking" in nearby West Virginia may be responsible".
Panel Seeks Stiffer Rules for Drilling of Gas Wells
August 11, 2011
An Energy Department subcommittee has called for better tracking and more careful disposal of waste, among other measures.
EPA Report: Fracking Contaminated Drinking Water
August 3rd, 2011
Washington, D.C. – Contrary to the drilling industry claim that hydraulic fracturing has never contaminated groundwater, the Environmental Protection Agency concluded in a 1987 study that “fracking” of a natural gas well in West Virginia contaminated an underground drinking water source. That all-but-forgotten report to Congress, uncovered by Environmental Working Group and Earthjustice, found that fracturing gel from a shale gas well more than 4,000 feet deep had contaminated well water.
Access to PDF of EWG Investigation, Cracks in the Façade:
EPA Proposes Air Pollution Standards for Oil and Gas Production
Cost-effective, flexible standards rely on operators' ability to capture and sell natural gas that currently escapes, threatens air quality
WASHINGTON – The U.S. Environmental Protection Agency (EPA) today proposed standards to reduce harmful air pollution from oil and gas drilling operations. These proposed updated standards - which are being issued in response to a court order - would rely on cost-effective existing technologies to reduce emissions that contribute to smog pollution and can cause cancer while supporting the administration’s priority of continuing to expand safe and responsible domestic oil and gas production. The standards would leverage operators' ability to capture and sell natural gas that currently escapes into the air, resulting in more efficient operations while reducing harmful emissions that can impact air quality in surrounding areas and nearby states.
Arkansas: Disposal Well Is Ordered Closed
"The Arkansas Oil and Gas Commission voted Wednesday to close a well used to dispose of natural gas fluids and ban the drilling of others in an area north of Conway where hundreds of earthquakes have struck. The well between Greenbrier and Enola is operated by Deep-Six Water Disposal Services, a subsidiary of Hurst Oil Investments Inc..."
GASSED! NEW Report: Toxic Air Emissions Near Natural Gas Operations
Citizen sampling of air quality near natural gas production facilities has identified highly unsafe levels of toxic chemicals near homes, playgrounds, schools and community centers in Colorado and New Mexico. A new report issued by Global Community Monitor, GASSED! Citizen Investigation of Toxic Air Pollution from Natural Gas Development, details the air sampling results, environmental and public health threats with living amid the natural gas boom.
A coalition of environmental and community based organizations in Colorado and New Mexico collected nine air samples that were analyzed by a certified lab. The lab detected a total of 22 toxic chemicals in the air samples, including four known carcinogens, as well as toxins known to damage the nervous system and respiratory irritants. The chemicals detected ranged from 3 to 3,000 times above levels considered safe by the EPA. Sampling was conducted in the San Juan Basin area of Colorado and New Mexico, as well as Garfield County in western Colorado. High levels were found near homes and a school.
Hydrofracking's impact on air quality concerns some, by Steve Orr
"Much of the debate about hydraulic fracturing has focused on the impact that the controversial method of natural gas extraction could have on water quality in upstate New York.
Some say, though, that air quality is just as big a concern. Last week, an Albany environmental group focused attention on a citizen-driven study in two western states that found elevated levels of harmful chemicals in the air near gas wells and gas-handling facilities..."
On June 30th the New York State Department of Environmental Conservation issued a press release outlining many of the most important features contained in the revised Draft Supplemental Generic Environmental Impact Statement (Draft SGEIS) which will be released on July 8th. While many New Yorkers won't be satisfied with anything less than a total ban on fracking, Governor Cuomo and Commissioner Martens must be given credit for producing a document that is a vast improvement over the shoddy draft the DEC tried to fob off on New Yorkers back in 2009.
Key features of the revised draft include:
•Drilling banned within the New York City and Syracuse watershed. •Drilling banned within eighteen of New York State's most important aquifers. •Surface drilling activity banned in state-owned parks, State Forests and Wildlife Management areas. •Improved setbacks from private water wells and public water supplies for at least three years. •Improved well casing regulations. •Sealed containers for fracking wastewater instead of dangerous open pits. •Improved monitoring of waste disposal. •Improved regulation of waste treatment facilities. •Affirmation of the rights of local municipalities to control gas extraction activity through zoning. •Chemical disclosure. •Restrictions on gas flaring which produces greenhouse gases. •Adequate funding to ensure proper oversight and enforcement.
Also, the press release also acknowledged that "the 2009 [draft] SGEIS did not adequately consider the community and socio-economic impacts of high-volume fracturing." A completel version of the revised draft will be released by July 31st and include additional material that looks at positive and negative socioeconomic impacts, infrastructure impacts and noise pollution.
So what's not to like?
•The elephant in the room: The full development of the Marcellus Shale, using today's technology, will entail the underground injection of hundreds of billions of gallons of toxic fluid that will never be recovered. No one, not Governor Cuomo, not Commissioner Martens, nor anyone else, can say with certainty that these toxic fluids won't present a threat to our drinking water supplies in the years and decades to come. •Unequal protection: The proposed SGEIS will protect some drinking water supplies but not others. •So-called "best management practices" will only be required in some circumstances. This is a mistake. If fracking must go forward, the industry should be required to use best management practices in every phase of the extraction process, and in developing of each and every well.
If New York is going to permit hydraulic fracturing we must be assured that the DEC Division of Mineral Resources must be in capable and trustworthy hands, and that means Director Bradley J. Field must be removed.
Fire Bradley J. Field!
New York Attorney General Files Lawsuit Against Federal Government
to Compel Full Environmental Impact Study on Hydrofracking
Coalition to Protect NY (CPNY) Press Release on Water Withdrawal Bill
Upstate Environmental Attorney Slams DEC Position On Pending Water Withdrawal Bill
WATKINS GLEN, NY – With only a few days left before the State Assembly and Senate are expected to vote on a controversial landmark water withdrawal bill for New York State, Helen Slottje, a Harvard educated attorney, has blasted the proposed legislation as “a huge giveaway” to large water users that the state will come to regret.
While many national and state level environmental groups support the bill, a large number of local groups are waging a campaign to raise public and legislator awareness of the bill’s shortcomings. In their view, the bill is a “Trojan Horse” by the oil and gas industry to facilitate “fracking.” It will allow huge withdrawals of water at no charge, and does not contain adequate protection and enforcement provisions in case of pollution or gas spills.
No public hearings have been held on the bill (A5318A/S3798) to address these and other questions and concerns.
The water bottling and the gas fracking industry and other large users who will benefit from the “free to all” provisions of the bill have been silent supporters of the bill. The bill is also viewed favorably by the chemical industry, which stands to sell enormous amounts of chemicals if and when the expanded hydrofracking of methane gas wells is approved for the State.
Slottje, who has been outspoken in her concerns with several lawmakers in Albany, recently had an exchange in with Maureen Coleman, an attorney with the state’s Department of Environmental Conservation, regarding the bill (see attached below). Coleman, who recently claimed at a conference at the Cornell Law School that she had written the bill, backed off that assertion and admitted that the bill had come through three years of deliberation in DEC.
While the DEC maintains that the bill will not change the nature of New York’s water rights laws, Slottje believes otherwise.
“This bill converts publicly owned water into private property,” she said. “I think that is a pretty big change. If there is no change, then why do we need the law?”
Groups opposed to the bill are asking its sponsors and co-sponsors NOT to pass this legislation without public hearings. The bill is sponsored in the Senate by upstate Buffalo area Senator Mark Grisanti and is co-sponsored by four downstate Democrats/Working Families Senators: Avella
Duane, Montgomery and Perkins. The Working Families Party presents itself as a Progressive Party on Environmental issues.
The State Assembly sponsor is Assemblyman Robert Sweeney. Up to this point, the downstate legislator’s Albany staff has been unavailable to address the serious concerns raised by Slottje and others.
Assembly Speaker Sheldon Silver has repeatedly spoken about the importance of protecting New York State’s water from the methane industry’s “fracking” practices. These bills appear to have covered the hydrofracking industry’s interests in water provision throughout the state.
The concerned groups are urging anyone interested in ensuring the adequate protection of New York’s most valuable resource to call these legislators this week and ask for public hearings on these bills.
An Exchange Between Attornies Helen Slottje and Maureen Coleman
The following is Q & A between attorney Helen Slottje and Maureen Coleman, an attorney with the Department of Environmental Conservation. The exchange was in regard to the Water Withdrawal Bill under consideration in the NYS Assembly as of May 2nd, 2011.
H. SLOTTJE: Here are my questions, concerns and responses to the arguments/responses offered by the DEC in support of this legislation. Personally, I believe that this water withdrawal bill (A.5318-A / S.3798) is a HUGE giveaway of our public rights with regard to fresh water and one that we will certainly come to regret as the large water users become entrenched with permission to use and destroy our fresh water.
1. DEC: Right now, under current law, there is no regulation (outside of the Delaware and Susquehanna River Basins and the Long Island Well program under ECL §15-1527) of large industrial or commercial water uses.
H. SLOTTJE: Common law, the holdings in our long history of judicial decisions, is law. Enacted legislation is statutory law. Regulations are rules enacted by regulatory agencies to enact and enforce the statutory law. The absence of regulations does not equal an absence of law. It is true that New York State does not presently have a regulatory system whereby corporations can easily obtain permission to withdraw water from the common supply. The common law doctrines and traditions of water law are the de-facto “regulations.”
How can NY currently be a regulated riparian rights state if, in large portions of NY, there are no regulations? It can’t. Areas of NY (such as most of Tompkins County) which are outside of the SRBC and DRBC areas are governed by “reasonable use” riparian rights, and NY considers water as public property rather than private property.
2. DEC: Currently, nothing prevents larger users from withdrawing whatever amount of water they want. Attorney RT has told me that these withdrawals are currently unlawful, but they are not; she has not provided me with any reason or authority for claiming they are.
H. SLOTTJE: Here is what the New York Court of Appeals, the highest court in the State of New York has to say about underground waters:
“While a landowner is entitled to make every use of the waters flowing under the surface of his land, which might be for the legitimate improvement or enjoyment of his lands, however it interferes with others as a natural consequence, if his use is unreasonable, in the sense that he is attempting to increase the flow of the waters upon his lands for a purpose not connected with such improvements or enjoyment, and to the destruction or diminution of the flow under the adjacent lands of others, he is committing an unlawful act.” State of New York v. The New York Carbonic Acid Gas Company, 196 NY 421 (1909).
Surface waters are subject to the public trust doctrine. The public trust distinguishes between the rights and property that the state holds as trustee for all of us and those rights and property that the state holds for its own benefit and can sell and transfer. The state has NO RIGHT to give away property held in public trust – it only holds such property as a trustee and not as an owner. Property owners have the right to use surface waters (ponds, lakes, rivers) that their property encompasses or borders but ONLY for use on the property that so borders or encompasses the water.
The state Attorney General has broad common law authority to enforce the public trust doctrine and seek abatement and redress of misuse of water resources. “It is recognized that the state as quasi-sovereign and representative of the interests of the public has a standing in court to protect the atmosphere, the water and the forests within its territory, irrespective of the assent or dissent of the private owners of land most immediately concerned.” Hudson Water Co. v. McCarter, 209 US 349.
AND, what can the supporters of this bill point to that would indicate that a corporation or industry can just withdraw however much water whenever or where ever it wants IF there is no regulatory/permitting process in place. How would a corporation or industry justify the withdrawal without a permit if they were challenged? Upon what basis would they be able to justify their withdrawal? The “permitting system” proposed by the legislation answers that question and uncertainty – it GIVES the corporations permission to withdraw the water. The corporations are then acting under color of law and any challenge to their withdrawal must overcome the fact that the state has given them permission to make the withdrawal.
3. DEC: The permit system proposed in the bill would give DEC the ability to regulate these large withdrawals, and protect the rights of all users of water, including the non-permitted water users. ECL Article 15 (§15-0105) provides that it is the sovereign duty of the State to conserve and control the water resources of the State for the benefit of all inhabitants of the state and sets forth several public policies of the State in relation to that duty, including that water for domestic and municipal purposes shall have priority over all other purposes. It also recognizes that water use for agricultural irrigation is a public purpose and use, and requires that DEC give due consideration to the relative importance of different use.
H. SLOTTJE: Does the DEC anticipate denying any permits based on the use of water? Does this legislation address the appropriateness of sequestering water uses or destruction of water? We hold, in the public trust, a large percentage of the world’s fresh water resources. Are we really prepared to GIVE THEM AWAY and then have to fight later to get them back if as and when we can show that we need the water more and for better reasons than the 10 year permittees?
4. DEC: The purpose of the proposed statewide permitting program is to protect New York State’s water resources to ensure they continue to be available for all water users, including small users whose withdrawals are not permitted. Permits issued pursuant to the proposed legislation do not give any rights to permit holders that will override the statutory and common law rights held by other users.
H. SLOTTJE: Is it really your position that the proposed permitting program only imposes restrictions on users and does not give them any new rights? Why then does industry support this bill? Because they LIKE restrictions? You cannot really, honestly, be saying that the permit grants no rights or privileges and only obligations.
5. DEC: The proposed permit system provides another level of protection for the State’s water resources, beyond existing common law remedies. Currently, persons that believe they are being harmed by another's water withdrawals must seek judicial relief. A permitting system provides additional protections. Existing statutory protections which offer opportunity to comment and challenge the issuance of DEC permits will apply to water withdrawal permits. In addition, once a permit is issued it may be challenged pursuant to Article 78 of the CPLR.
H. SLOTTJE: Again, you aren’t really saying that this “permitting program” really just protects small users and the public trust. Again, if the permitting system only imposed restrictions and granted rights to the public there is no way that industry would support the bill. Industry supports the bill because they are getting something. That is just the way it works.
6. DEC: And if a permit holder fails to comply with its permit conditions, DEC has a number of administrative remedies available, including permit modification, suspension or revocation, and civil penalties in order to enforce compliance. If these remedies fail, the matter may be transferred to the Office of the Attorney General for appropriate enforcement action. And the individual still has the right to seek judicial relief.
H. SLOTTJE: Not to beat a dead horse, but who is going to pay for this enforcement program? How many inspectors will there be? Where will the gas money and cars and testing come from? What will the penalties be – high enough to deter or low enough to just be another cost of business? Presently, a citizen’s suit – which is really all we are going to have at the end of this “permitting process” will now face a much higher bar. Rather than having to show just any adverse impact, the citizen will have to show that the “permit conditions” were not met, that the permit holder has received notice of this and an opportunity to cure the problem. There can be no suit once the DEC does step in and undertakes “compliance” efforts – which will likely just be another promise from the corporation to comply this time around. (I’d be interested in how many times the DEC has actually shut down an operation due to failure to comply with permit conditions – either under SPDES, here, or in the oil & gas program, compared to the number of permits and compared to the number of inspections.)
7. DEC: This bill will not change the nature of New York’s water laws as Attorney RT claims. New York State is already a regulated riparian system.
H. SLOTTJE: If there is no change, then why the law? Regulated riparianism means that water is treated as a public resource and not private property. Bender, 6 –NY Water and Water Rights I. (“New York is considered a “reasonable use” riparian rights jurisdiction....However, New York may also be termed a ‘regulated riparianism’ state because it treats water as a form of public property rather than as common or private property.”) This bill converts publicly owned water into PRIVATE PROPERTY. I think that is a pretty big change.
8. DEC: DEC has been issuing permits for public water supplies under ECL §15-1501 and for groundwater withdrawals in Long Island Counties pursuant to ECL §15-1527 for decades, which have not impaired any existing riparian rights.
H. SLOTTJE: Long Island faces water shortages both from current population and previously by demands on the system from NYC. How much does it cost to run the present regulatory system? How many permits are applied for? How many are denied? How many violations are there? How many inspections are there? How accessible is this system to the public? Is the data shared online? What evidence is there that “riparian rights” have not been impaired? Presumably, the regulations either stopped someone from doing something they wanted to do, or they gave permission to someone do something they otherwise did not have the right to do. If not, I’d question the reason for the regulations. And presumably then there were winners and losers. Who were they?
9. DEC: A permit condition that is included in all ECL §15-1501 water supply permits, and which will continue to be included in all ECL §15-1501 water withdrawal permits, specifically states that a permit does not convey to the permittee any right to trespass upon the lands or interfere with the riparian rights of others in order to perform the permitted work or authorize the impairment of any rights, title, or interest in real or personal property held or vested in a person not a party to the permit.
H. SLOTTJE: Permit conditions are imposed at the discretion of the DEC. They are not law. They are not even regulations. A permit condition cannot trump the law or regulations. If the law gives away riparian rights and authorizes the withdrawal, the permit condition will not recapture the right.
Water Withdrawal Legislation Fact Sheet
Below is a link to comments on points made in a memorandum prepared by Environmental Advocates (EA). The EA memorandum appears to be targeted to concerns previously raised by Rachel Treichler with the water withdrawal bill. The points labeled Fact and Fiction in the original EA memo are labeled “EA’s Fiction” and “EA’s Fact.” Treichler's comments as of May 1, 2011 are labeled “RT’s Comment.”
Click here for Rachel Treichler's Comments on the Environmental Advocates Memorandum.
Tell Cuomo to Place a Moratorium on Gas Drilling and Hydraulic Fracturing
Email Governor Andrew Cuomo, "Like" his Facebook Page and post on his Wall, or write a short Public Reply to his Twitter Page. Use the short message below, or use it to personalize your own message.
I am concerned about gas drilling and hydraulic fracturing in New York State and the affect their practice has on my access to clean drinking water. Please place a complete ban on all Hydraulic Fracturing in New York State until it can be proven safe.
[Insert Your Name]"
Click here for an Environmental Health News Database of Hydrofracking Articles Click here for a National Toxics Network Briefing Paper on the dangers of Hydrofracking
New Report from Australia calls for a Moratorium on Hydrofracking Chemicals
A new report from Australia calls for a Moratorium on the hydraulic drilling and fracturing chemicals used in the hydraulic drilling and fracturing of coal gas seams and gas shale extraction, until the fracking chemicals have been fully assessed for their health and environmental hazards by the industrial chemicals regulator the National Industrial Chemical Notification and Assessment Scheme (NICNAS). “Fracking chemicals are complex mixtures of different chemicals which increases their risks,” Dr. Mariann Lloyd –Smith says. “By allowing these chemicals to go unchecked, it effectively gives the CSG [Coal Seam Gas] industry a green light to pollute."
Click here to view the entire National Toxics Network Briefing Paper
Environmental Health News Database of Gas Drilling Articles
Environmental Health News has organized a database of articles on hydrofracking organized in a helpful index by type of article, issue, health condition, contamination agent, and more.