Industry to appeal both Middlefield, Dryden drilling bans

The drilling industry is appealing two watershed cases that will decide whether local municipalities in New York state can ban drilling.

Industry supporters will challenge rulings issued last month by the state Supreme Court that upheld local drilling bans in both the Town of Dryden and the Town of Middlefield, Tom West, an attorney from the West Law Firm, said this morning. The firm issued a notice of appeal yesterday on behalf of Anschutz Exploration Corporation in the Dryden case. The West firm is also working with attorneys from Levene Gouldin & Thompson on an appeal of the Middlefield case, expected within days, West said. The notice to appeal both cases comes just days before the deadline.

On February 21, New York State Supreme Court justice Phillip R. Rumsey issued a summary judgment in the matter of Anschutz Exploration Corporation versus Town of Dryden that upheld the town’s ban on shale gas exploration. Following the ruling in late February, West told me the company was not enthusiastic about funding an appeal in New York state for several reasons, including the low price of gas, environmental resistance, regulatory uncertainty in New York, and the status of its lease hold. He did not rule out an appeal, either.

Days after the Dryden decision, acting Supreme Court Justice Donald F. Cerio, Jr. ruled in favor of the Town of Middlefield’s ban on hydrofracking. The decision was in response to a claim by Jennifer Huntington, a dairy farmer and president of Cooperstown Holstein Corporation, that the ordinance denied her rights to reap economic benefits of a lease to develop mineral rights on 400 acres. Scott Kurkoski, of Levene Gouldin & Thompson, said in March his firm was working on Huntington’s appeal, with the expectation that a coalition representing pro-drilling landowners will chip in to help cover legal expenses. “It’s expensive, and so far Susan Huntington has taken it on by herself,” he said. “I expect landowners will step up.”

Ultimately, the outcome of the landmark case will decide whether the state or local jurisdictions have the final say on drilling. The fight by the industry to remove the bans speaks to the value of mineral resources under the towns. Prime sections of both the Marcellus and Utica shales – thought to be some of the largest natural gas reserves in the world -- extend from Pennsylvania well into upstate New York. The issue embodies the national controversy over the merit of the risks and damages of onshore drilling,

West said today that the law firms have found funding for the appeals, although he was not specific regarding the source. While notices to appeal the cases are being filed by the deadlines, the actual appeals will take longer to assemble and will come later this year, he said. The cases would likely be heard together in front of the appellate court this fall in Albany, he said.

Propane fracking ambitions to test New York’s policy Issues of technology, geology, politics, and law at stake

A plan announced this week to use propane to begin developing shale formations in New York state will test technology, law, politics, and policy with the latest twist to the controversial fracking issue.

It begins with leaders of a coalition of landowners in Tioga County who have reached a deal, in principle, with gas companies to develop 130,000 acres over the Marcellus and Utica shales. That deal would give landowners a working interest in wells developed by eCorp, and GasFrac Energy Services to use propane fracking to begin exploring the formations in the Southern Tier of New York. The intention is to prove both the worth of the formations and new technology to produce them. eCorp has developed the Stagecoach natural gas storage fields in the Southern Tier of New York. The company’s technical, logistical, and geological experience in the region will serve the project well, according to Chris Denton, an Elmira lawyer who helped broker the deal.

If all goes according to Denton's plan, the partnership between landowners and industry will be able to bypass a moratorium on high volume hydraulic fracking that began with the shale gas boom in New York in 2008. Since then, state regulators have been developing policy for the process used to fracture shale and extract gas with pressurized chemical solutions. Unresolved issues over water consumption, pollution, and waste disposal have been the target of fracking critics and given rise to a national environmental movement to stop shale gas production.

New York state regulators have met with the Tioga County landowner group and company officials to discuss the propane option, said Emily DeSantis, a spokeswoman for the Department of Environmental Conservation. An agency statement provided by DeSantis this morning offers both an encouraging nod to the plan to frack with propane, and an open door for more regulatory review. DeSantis cited a clause in the SGEIS – a policy document to oversee fracking which is still in draft form after nearly four years of work and revisions -- that states propane fracking “not only minimizes formation damage, but also eliminates the need to source water for hydraulic fracturing, recover flowback fluids to the surface and dispose of the flowback fluids. As a result of the elimination of hydraulic fracturing source water, truck traffic to and from the well site would be greatly reduced.”

DeSantis then added in an email: “Our review may require additional information and additional SEQRA analysis, including an EIS, if warranted.” A State Environmental Quality Review (SEQR) and an Environmental Impact Statement (EIS) are both time consuming and costly processes that would require public input and surely be a prime target for protesters and activists opposed to onshore drilling.

Reaction among drilling proponents and opponents to the propane fracking plan has been predictably divisive. Drilling advocates said the propane technology would eliminate the issues associated with water withdrawals and contamination that have been the focus of environmental resistance. Denton, a featured speaker at many landowner meetings, has long held that problems are related to bad actors in the industry and landmen who mislead landowners and enable unfair leases, rather than the extraction process itself. Mishaps and accidents are preventable through strong and enforceable contracts that hold operators accountable. The deal with eCorp and Gasfrac includes strict land use provisions, Denton said, and having landowners involved directly as owners adds a critical level of control over the operations.

Opponents say gas fracking is another unproven and hazardous technology falsely portrayed as environmentally friendly by an industry notorious for withholding information. Tony Ingraffia, a Cornell University engineering professor who specializes in fracturing mechanics and a former industry consultant, is now among the industry’s most outspoken critics. Regardless of what agent is used, shale gas development will disrupt entire regions, according Ingraffia’s assessment. Fracking with propane requires a set of logistical problems that are no less risky than fracking with water, sand and chemicals, he said, including “large quantities of additional, but different chemicals,” compressors, and truckloads “transporting hazardous material, not water.” He added that LPG fracking does not address the problem with brine and other waste produced from gas wells; methane migration, a common problem that has plagued shale gas wells in Pennsylvania despite upgrades in well casing standards; or the impact of global warming from natural gas that is burned as fuel and escapes from the ground during the production process.

Correction: The original version of this post incorrectly stated that eCorp stored liqued natural gas in the Stagecoach field. The Stagecoach field, in Tioga County, stores dry natural gas. eCorp. sold the Stagecoach field to Inergy in 2005.

BREAKING NEWS: Propane fracking deal reached in NY Plan would open 130,000 acres in Tioga County for drilling

The leadership of a group of landowners in Tioga County, New York has reached an agreement with gas drillers to begin developing the Marcellus Shale using liquid propane as a fracking agent.

Brokers of the deal, between eCorp, GasFrac Energy Services, and the Tioga County Landowners Association, believe that fracking with natural gas is not included under a New York state moratorium that prevents drillers from using high volume hydraulic fracturing. The moratorium was put in place in 2008 due to environmental concerns, pending the completion of a review by the state DEC.

Under a Memorandum of Understanding announced this afternoon, the members of the Tioga County coalition will form an LLC called Southern Tier Energy Partners to participate in the deal.

“Our intention is to prove up the play,” said Chris Denton, an attorney representing the landowner coalition. The deal has been accepted in concept by the leaders of the coalition and has to be brought to the membership base of about 2,000 families in coming weeks, Denton said. The deal would give landowners a working interest in the development and production of wells rather than traditional lease payments. It may take several months before the pieces of the deal, including title searches of property owned by the paricipants, will be finalized, Denton said. He could not release more specific details about the terms as of early Tuesday afternoon.

Fracturing shale with propane is a developing technology proposed as an alternative to traditional high volume hydraulic fracturing, a process that uses sand and a proprietary chemical solution, or diesel fuel. Drawbacks to traditional hydraulic fracturing include the large quantities of fresh water required -– several million gallons per well -- and like amounts of waste produced, including brine and organic solvents.

Chevron has used Gasfrac’s proprietary process of fracking with liquefied petroleum gas (LPG) in its $7.3B Piceance basins natural gas project, according to a report from Seeking Alpha. The company’s 2011 annual report supplement noted that the technology is recognized by the World Shale Gas Conference for its economic and environmental performance potential, and “significantly increases production while minimizing water usage.” The company is continuing to test the process. Chevron's assessment of LPG fracturing is the strongest endorsement yet of the process by major company.

Using the process in Tioga County, New York will provide a breakthrough in gas development in a state that has been mindful of concerns with traditional fracturing, according to Denton.

“We’re also concerned about how fracking will affect the environment,” Denton said. The strategy is to show the worth of the Marcellus and the Utica shale’s in Tioga County with initial test wells, which is known in the industry as “proving” a play. The project is intended as a literal proving ground for both the Gasfrac process and the worth of the Marcellus and Utica shale’s under upstate New York and Tioga County in particular, Denton said., and it is a prerequisite to more capital interest.

Assemblywoman Donna Lupardo has been an influence in the public debate over hydraulic fracturing since the Paterson administration ordered the high volume fracking moratorium in the summer of 2008. She has long advocated consideration of alternative, more benign fracking agents. “This certainly takes the concern over water issues off the table,” she said, “and that’s a big one, with the whole issue of withdrawls, contamination and treatment.” It would not address problems associated with methane migration, she added, which continues to plaque shale wells in Pennsylvania, despite stronger standards adopted by the state last year.

The pending environmental review puts a hold on fracking with chemical solution in New York until the impact is better documented and new guidelines are established. The policy review, called the Supplemental Generic Environmental Impact Statement (SGEIS), would not apply to fracking with propane. But some have questioned whether propane fracking is sufficiently covered under pre-existing regulations outlined in the state's orginal Generic Environmental Impact Statement (SGEIS) from 1992. If not, then the Tioga County project would require separate environmental reviews that could be costly and time consuming.

Denton said attorneys and landowners have done their homework. “Our research indicates that we are in good shape,” he said.

Some environmental advocates questioned that assessment. Even if fracking with propane is less damaging than fracking with a chemical solution, other issues associated with shale gas development must be addressed, said Walter Hang, an activist who has organized anti-drilling efforts in New York. They include waste disposal associated with “produced water,” which is fluid that comes from the ground with high concentration of brine, heavy metals and sometimes naturally occurring radioactive particles.

Propane fracking "is not a magic bullet that lets them go forward,” said Hang, who heads Toxic Targeting, an Ithaca firm that compiles environmental data on brownfield sites. “I’m not so sure they (the Tioga County project) will be able to avoid a more vigorous (regulatory) review.”

UNDER THE SURFACE to be released within weeks

I have received word from my editor at Cornell University Press that the first copies of Under the Surface, Fracking, Fortunes and the Fate of the Marcellus Shale are en route from the printer to the warehouse. From there, they will be distributed nationally to bookstores over the course of the next four to six weeks. In addition to Barnes & Noble, many independents will feature the book, including Oblong Books in the Hudson Valley region, Talking Leaves in Buffalo, and Penn Books in Philadelphia.

I’m honored to appear at these and other bookstores beginning in May. Prior to that, books will be available at my talks scheduled at various venues in upstate New York. Here’s how my speaking schedule looks as of today, with more additions to come. I will post specific times and places as I get them.

4/16 SUNY Environmental School of Forestry, Syracuse, NY
4/18, Binghamton University, Vestal, NY, Lecture Hall 2, 6:15 p.m.
4/24, University of Rochester, Rochester, NY, Hubbell Auditorium, Hutchison Hall, 7:30 p.m.
4/25, Hobart William & Smith, Geneva, NY, HWS Library, Sanford Room, 7 p.m.
5/4, Oblong Bookstore, Rhinebeck, NY, 7:30 p.m.
5/10, Scranton Library, Scranton, Pa., 7 p.m.
5/17, Tompkins County Public Library, Ithaca, NY, 6 p.m.
5/19 Barnes & Noble, Vestal, NY, 2 p.m.
6/14, New York State Historical Society Conference, Niagara University, NY
6/14 Talking Leaves Bookstore, Buffalo, NY, 7 p.m.
6/20, Enoch Pratt Library, Baltimore, Maryland, 7 p.m.

I thank everybody who has followed my coverage of the monumental shale gas story over the years. I’d love to see you in person at one of these events.

Status of Home Rule appeals uncertain as deadline nears Arguing against local control could put Republicans on spot

Appeals of two high-profile cases that will influence the future of shale gas development in New York State remain uncertain.

Lawyers working on an appeal challenging a fracking ban by the Town of Middlefield board face a costly legal battle with uncertain sources of funding, according to several lawyers close to the case. Likewise, a gas company facing a similar ban in Dryden remains unenthusiastic about financing an appeal. Both are test cases in the “home rule” issue that will determine the extent in which state law supersedes local law in controlling the gas industry operations within municipal borders.

On February 24, acting Supreme Court Justice Donald F. Cerio, Jr. ruled in favor of the Town of Middlefield’s ban on hydrofracking. The decision was in response to a claim by Jennifer Huntington, a dairy farmer and president of Cooperstown Holstein Corporation, that the ordinance denied her rights to reap economic benefits of a lease to develop mineral rights on 400 acres. Scott Kurkoski, of Levene Gouldin & Thompson, said today his firm is continuing to work on Huntington’s appeal, with the expectation that a coalition representing pro-drilling landowners will chip in to help cover legal expenses. “It’s expensive, and so far Susan Huntington has taken it on by herself,” he said. “I expect landowners will step up.”

In a separate ruling issued days before the Middlefield decision, Supreme Court justice Phillip R. Rumsey upheld the Town of Dryden’s right to ban mineral extraction activities. The case stemmed from a complaint filed by Anschutz Exploration Corporation, which argued that state permitting laws regulating oil, gas and mineral extraction superseded local ordinances. Tom West, an attorney for Anschutz, told me he did not expect the company to pursue an appeal, which would be expensive. Leaseholds were nearing expiration in the town, and the low price of natural gas and regulatory uncertainty in New York were other disincentives.

The uncertainty of the two cases counters early expectations that the industry and drilling proponents would instantly and aggressively pursue appeals. Meanwhile, victories by fracking opponents in Middlefield and Dryden are likely encouragement other towns to enact fracking bans.

"For the last year or so, the gas industry has been threatening (towns),'you're going to lose in court, so don't even waste your money'," Town of Middlefield attorney David Clinton told Reuters news last month. "So (the rulings) certainly embolden other towns." Today, Clinton told me he expected the matter would ultimately be decided by the legislature.

New York State lawmakers have already passed temporary fracking moratoriums, but they have been largely symbolic because the DEC is not permitting shale gas wells until policy has been established with a pending environmental review, called the Supplemental Generic Environmental Impact Statement (SGEIS). While pro and anti-fracking activists have been focused on influencing the outcome of that review, they will begin shifting their efforts to elected officials with the release of that document, expected within months.

Supporting legislation against home rule would require arguing for more state control at the expense of local autonomy. That could put Republicans and conservatives— traditional supporters of the industry -- in an awkward position as they ramp up their campaigns in election year 2012.

EPA preliminary results on Dimock water cause stir

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An EPA technician tests water in Dimock
PHOTO JAMES PITARRESI, PitarresiPhoto@gmail.com

The quality of well water in Dimock, Pa. is the center of national attention for activists, journalists, regulators, lawyers, policy makers, and industry officials – all looking for the latest evidence from government studies that will support their cases for or against fracking.

Dimock has become one of the most prolific places in the Appalachian basin for shale gas development, and one of the biggest examples of its impact on communities. Residents here were categorically optimistic about the prospects of leasing land to operators in 2007 and 2008. That began to change in on January 1, 2009, when a residential water well exploded soon after drilling began in the area. An resulting investigation by the DEP found methane had leaked from faulty gas wells into more than a dozen water supplies. Nearly two years later, as more problems were uncovered, John Hanger, then state’s top environmental official during the Rendell Administration, declared the aquifer that supplies certain Dimock homes to be permanently damaged. To make things right, Hanger ordered Cabot Oil & Gas to develop and pay for a pipeline from Montrose to deliver fresh water to the affected residents.

The initiative was defeated after Tom Corbett was elected governor on a pro-drilling platform. Under Corbett, the DEP declared this year that Cabot Oil & Gas had met its obligation to compensate landowners for the pollution and no longer needed to deliver water to residents. The federal EPA responded with an own investigation after reviewing data from previous tests by Cabot and the DEP that, according to an EPA memo, showed "a number of home wells in the Dimock area contain hazardous substances, some of which are not naturally found in the environment." The memo identified drilling operations as a suspect.

There have been other reports of water pollution in Dimock. In 2010, testing by Farnham and Associates, an engineering firm that specializes in commercial waste-
water issues, found traces of hydrocarbon solvents—including ethylbenzene, toluene, and xylene -- showing up periodically after heavy rains in the wells of people who also had methane problems

A preliminary report released by the EPA this week spurred more controversy. Results of the first 11 of 61 wells sampled showed traces of some compounds associated with drilling operations, including sodium, methane, chromium, but none of them at levels that presented health risks. Arsenic was detected in two wells at concentrations high enough to warrant more investigation “to better characterize the water quality of these wells,” according to Roy Seneca, EPA Region 3 press officer. Since beginning the investigation in January, the EPA has collected samples at 61 homes, with results from the other 50 homes pending.

The results, far from complete, provided enough for the industry to hold them up as evidence that the water is fine, and to justify reproach aimed at the EPA for butting in. “We hope that lessons learned from EPA’s experience in Dimock will result in the Agency improving cooperation with all stake holders and to establish a firmer basis for Agency decision making in the future,” read a Cabot statement.

Activists, on the other hand, are seeing something altogether different. Julie Sautner points to her well that, according to DEP records, was polluted in 2009 and eventually taken off line after a filtration system set up by Cabot began to malfunction. Julie and her husband Craig are part of a lawsuit filed by 15 families against Cabot seeking damages from pollution. They see the EPA results that show traces of drilling chemicals in samples collected from six of the 11 homes, and results pending for 50 others, as unresolved matters. “I’m not putting myself through this because I have nothing to do,” she said. “Something is wrong with the Dimock water.”

Meanwhile, The DEP is continuing an investigation into new problems and complaints in Franklin Forks, 10 miles north of Dimock, where the agency has found elevated levels of methane in three wells, and pressurized gas hissing from one in an area being drilled by WPX Energy. More results are expected in four to six weeks, said Colleen Connolly, a spokeswoman for the DEP. Officials suspect that the pressurized methane could have passed from gas baring zones into the aquifer along imperfections in cement casings designed to seal off well bores. The EPA is not involved in the Franklin Forks investigation, according to officials form both the DEP and the EPA.

Water tables and conditions that affect them are dynamic systems. Problems may be there one day and gone the next, only to return. That’s why the EPA is calling for follow up tests in some wells for a more complete picture… along with the pending results of 50 others.

EPA: Water in first 11 of 61 Dimock wells meet standards Arsenic levels in two water supplies warrants more testing

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An EPA tecnician collects water samples at a Dimock home
PHOTO JAMES PITARRESI

DIMOCK, PA. -- Water samples collected at 11 homes in Dimock in January did not show contamination at levels that pose a health threat, according to preliminary results from the federal EPA released today,

Samples from six of the 11 homes showed traces of sodium, methane, chromium or bacteria in concentrations within acceptable limits, according to an agency release. Those sampling results also identified the presence of arsenic at two homes.

The agency has collected samples at 61 ones homes to date, with the results from the other 40 homes pending, according to Roy Seneca, EPA Region 3 press officer. The agency also plans to retest two of the 11 homes were low levels of arsenic were detected “to better characterize the water quality of these wells,” Seneca said.

The EPA investigation follows a three-year investigation by the Pennsylvania DEP that began when Norma Fiorentino’s water well exploded on January 1, 2009. Under governor Ed Rendell’s administration, DEP officials attributed contamination at the Fiorentino residence and more than a dozen other wells in the area to methane migration from nearby shale gas wells being drilled by Cabot Oil & Gas – an accusation that Cabot has denied.

The EPA is studying the Dimock water as part of a national review on the safety of hydraulic fracturing, with a more comprehensive analysis due by the end of the year.

Fracking analysis typically discounts risks above ground

Fracking does not cause water pollution, according to a front-page article in Tuesday’s Wall Street Journal. On this point there is consensus among regulators, academics and environmentalists.

This got my attention. Over the course of four years, I have interviewed many regulators, academics, and environmentalists while gathering information on my book, Under the Surface. I continue to interview them for this blog. Yet, I am yet to see much of anything that I would characterize as consensus on the risks and merits of fracking. How could I have missed this?

The answer is in the Journal’s definition of fracking. It limits the discussion to certain boundaries the industry is comfortable with. When talking of fracking, the industry, and in this case Journal reporter Russell Gold, focuses on what happens in bedrock a mile or more underground. This is famously depicted in the graphic of a drill bit boring through a cross-section of the earth. It starts out vertically, and then, as it approaches the pan-cake like shale layer, turns horizontally to intersect the pay zone along its length. The drill string is removed, and the bore is filled with pressurized chemical solution that, with a few blasts at calculated intervals along the horizontal leg of the well bore, fractures the surrounding layer of rock, initiating the flow of gas into the bore. The process is too far underground, the argument goes, to impact the water table in a much shallower zone and separated by layers of rock.

But there is something critical missing from this view of fracking. It fails to take into account how all that chemical solution got that deep into the ground to begin with, and what happens to it after it is regurgitated with brine and other waste. This all involves legion logistical and mechanical functions that take place above the ground. Chemicals must be trucked to the well pad, where they are staged, mixed and prepared for the injection. Then they are transported through a network of hoses and couplings, at pressures of 10,000 pounds per square inch, into the well bore and through the water table. Several million gallons of chemical solution, handled and mixed above the site, is used for each well bore, and the process is repeated six or more times at each well pad. Afterward, the fracking waste, called flowback, has to be collected, contained and disposed of.

The Wall Street Journal article does not account for above ground mishaps, like the three that happened in a 24-hour period at Doug Heitsman’s farm in Dimock Pennsylvania in the summer of 2009. A contractor for Cabot Oil and Gas was fracking a well with a product called LGC-35 CBM, a lubricant that reduces resistance in the line. The substance was mixed at a location a mile or so up a hill and fed into a pipe that runs down the slope to the well pad. The elevation of the fluid in the mixing station and powerful compressors raised pressure in the system necessary to push the fluids to the end of the lateral bore hole deep in the ground, and in this case, it was too much for the equipment. A coupling at the base of the operation blew out, and 5,000 gallons of the chemical flooded the pad and washed into a nearby wetland, polluting the water and killing fish. The coupling failed again, twice, within the same day. This is but one example of things that can go wrong when fracking, and when they do, they are generally attributed to mechanical failure or human error, rather then the process itself.

The Wall Street Journal story goes on to explain that the real problems associated with shale gas development are related not to fracking but to the integrity of cement casings to seal off the well bore from the aquifer in the shallow zone. In support of this assessment, the article sources Scott Anderson, a senior policy adviser with the Environmental Defense Fund, and Mark Boling, executive vice president and general counsel of Southwestern Energy Co., who both cite problems of cement as a primary issue. But why does this concern come at the exclusion of above ground spills and disposal problems associated with fracking? Gold provides the answer in this tidy summary:

The energy industry has been struggling to convince critics that fracking is safe. If the industry can persuade them that the chief pollution risk is poorly constructed wells—and that risk can be minimized—it might encounter less resistance from the public to expanding oil-and-gas production.

That’s fair enough. But if mishaps related to the logistics of fracking are not counted as part of drilling, cementing, or fracking, how do we count them? The industry strategy, perhaps, is to leave them out of the tally altogether.

Methane migration problems continue in Pa. drilling towns

A shale gas drilling operation in Frankln Township, Pa.
Photo: James Pitarresi, PitarresiPhoto@gmail.com

Methane is again seeping into water wells in Susquehanna County, despite stronger regulations enacted by the state last year in an attempt to control the problem near shale gas operations.

DEP officials have recently collected a second round of samples from water wells of three homes in Franklin Township after initial testing showed elevated levels of methane, said Colleen Connolly, a spokeswoman for the DEP.  Officials suspect that the pressurized methane could have passed from gas baring zones into the aquifer along imperfections in cement casings designed to seal off well bores.  

Franklin is about 15 miles north of Dimock, Pa., a place that gained national attention after Norma Fiorintino’s water well exploded in January, 2009, triggering an investigation and lawsuit that have become emblematic of the controversy over shale gas development. The DEP Bureau of Oil and Gas Management has files on more than fifty other cases of methane migration dating from the beginning of 2004 to the time Fiorintino’s well exploded. All involved dangerous and sometime fatal accumulations of gas migrating from new or abandoned wells into enclosed spaces. According DEP files, methane migration has “caused or contributed to” at least six explosions that killed four people and injured three others over the course of the decade preceding full-scale Marcellus development.

Residents in Franklin Forks attended a Township meeting on Wednesday to explain problems that began affecting their wells after drilling began near their homes. One resident showed a video of pressurized gas hissing from her well. WPX Energy is drilling in the area, although the source of the problem has not been conclusively identified.

Click here for a video of the meeting.

The DEP updated cement casing requirements in February of 2011 to mandate a higher grade of cement, pressure testing, and more inspections, but problems have persisted.  In May of 2011, The DEP fined driller Chesapeake Energy $1.1 million for a series of water contamination incidents and a well-site fire that injured three workers. The company agreed to pay $900,000 for allowing methane to migrate up faulty wells in Bradford County, contaminating 16 families’ drinking water beginning in 2010. It also paid $188,000 for a tank fire at a well site in Avella, Washington County.

Is a small community in the Catskill sitting on $81 billion? Delaware County's claim shows localization of frack fight

Drillers proponents are talking big in Delaware County. Late last month, the legislature passed a resolution demanding $81 billion from the New York state to compensate landowners sitting over the Marcellus Shale, after the state banned drilling in much of the this area in the Catskills to protect the watershed that supplies New York City. But the county’s willingness or ability to back up the demand is questionable, judging from recent comments from a county official.

From a public relations perspective, the claim might seem like a good move.  It’s a chance for drilling supporters to remind everybody of the wealth, or the perceptions of wealth, associated with shale gas development and the practice of hydraulic fracturing. The $81 billion figure, according to the resolution, is derived from the gross value of shale gas under the county based on projections of well density and production in the water shed calculated by the New York DEP and the state DEC.

“We put it out there, and we don’t know what to expect,” said Dean Frazier, the county’s Commissioner of Watershed Affairs. “We merely wanted to make the point that there is a lot of potential. I don’t know what, if any, legal recourse we have. We’re not there yet. I would hope we would be able to begin a discussion.”

If the intention was to wow state officials with the claim, it’s yet to register.  Emily DeSantis, spokeswoman for the DEC, told me this week that state officials haven’t seen the request, which was written and (supposedly) copied to DEC chief Joe Martens on Feb. 22.  “I better go check to see if that went out,” Frazier added after I told him of the state’s response.”

To say the resolution is a form of political posturing is stating the obvious. More importantly, it’s effectiveness as a legal tactic remains to be seen. Where would the lack of acknowledgement by state officials, of even a flat out denial, leave Delaware County? The glove has been thrown, the demand not only publicly made, but recorded in a resolution passed by the board. Will it actually lay the foundation for legal action and build credibility of the county’s case? Or will it simply suggest -- to a public that is eagerly watching the unfolding showdowns between governments -- that Delaware County is bluffing?

It’s one more example of the significance of a fight over local government’s role in an industry that is largely governed by the state.

·      Last month, the New York State Supreme Court ruled in two instances that local governments had the authority to ban drilling and fracking, the controversial practice that injects millions of gallons of chemical solution through the water table to extract shale and other petroleum from rock.  In two separate rulings last month, New York State Supreme County upheld local ordinances in Dryden and Middlefield that banned fracking.

·      In Niagara Falls, city lawmakers were met with a standing ovation Monday after they passed a law to ban fracking, and the disposal of fracking waste within the city. They also wrote a letter supporting legislation that would prohibit fracking and wastewater treatment in New York.  

·      After an extended public forum and debate in Auburn, the city council lifted the ban on treating wastewater from natural gas drilling at the city's treatment plant.

As the fracking fight continues to extend from national to local fronts, the courts and the public are keeping score. 

Drilling town eases restrictions on taping meetings Montrose borough passes resolution under pressure

MONTROSE, Pa  -- Free speech advocates lauded a resolution passed Monday by the Montrose Borough Council to ease restrictions on recording public meetings. They also vowed to continue to press for transparency in this small town, where shale gas development has become a primary issue.

Under legal pressure, the council passed a resolution Monday night to undo prohibitions on cameras that it had enacted last month amid intensifying coverage of development of the Marcellus Shale. The borough sits in the heart or Susquehanna County and just north of Dimock, a place that has earned a high profile in the national controversy over the safety and merits of hydraulic fracturing.

On Feb. 14, the borough council approved, without public comment, a policy that required video cameras to be unmanned and mounted on tripods in the back of the room. The new rule did not allow operators to adjust or move the cameras, even if they were blocked. The council crafted the prohibition a week after Vera Scroggins, a citizen journalist, tried to video record a meeting in which the council was scheduled to discuss a controversy over using the town’s water to supply people with contaminated wells in Dimock. In protest of being recorded, the entire council walked out of the meeting. 

The resolution passed Monday allows cameras and video recorders to be operated from chairs, and also designates an area for reporters with hand held or shoulder mounted cameras. “This is big a victory,” said Lisa Barr a citizen journalist and First Amendment scholar who challenged the Feb. 14 resolution with her sister, attorney Deborah Barr. “They know they have to behave, and they can’t run things in the dark. It makes it easier for journalists to do their job, both the mainstream and citizen journalists who are filling in the gaps.”

Scroggins, also an independent journalist, said she will continue to fight for rights of people to speak at the meeting. The council prohibits people who reside outside the borough from speaking without special permission from a council member, regardless of how they might be connected with business or interests relevant to local government affairs. This is especially relevant to the borough’s consideration of regional issues related to shale gas.

An agreement to settle the matter about cameras had been crafted in advance of Tuesday’s meeting by Deborah Barr and Patrick Boland, an attorney for the council, in front of Susquehanna County President Judge Kenneth Seamans. Still, passing the resolution Tuesday was not a quick and easy matter, as council members spent much of the meeting in executive session discussing the resolution with attorney Patrick Boland. 

Council members and Boland have refused to comment on the controversy.

Council to revisit restrictions on recording meetings

The right for citizens to chronicle public meetings will be revisited tonight by Montrose Borough Council, which is scheduled to vote on easing restrictions after a legal intervention by a citizen reporter.

That reporter, Lisa Barr, attempted to stream the 7 p.m. meeting online, but had technical difficutlies. 

The controversy reflects tensions in this small town in the middle of a burgeoning natural gas field, 10 miles south of Pennsylvania’s border with upstate New York. Montrose is just north of Dimock, which has gotten national coverage due to well water contamination associated with drilling, and a subsequent investigation by the federal EPA into dangers associated with fracking.  Uncomfortable with related news coverage, Montrose Borough council members abruptly got up and left a meeting on Feb. 8, when citizen reporter Vera Scoggins came to the meeting with a video recorder. At the next meeting, on Feb. 14, council approved, without public comment, a policy that requires video cameras to be unmanned and mounted on tripods in the back of the room. The new rule does not allow operators to adjust or move the cameras, even if they are blocked. The relationship between council members and media has been hostile. PaHompage reporter Joe Holden reported that he was pushed and shoved from behind by councilmen Sean Granahan and Craig Reimel as he stood outside the meeting hall with a microphone and camera in an attempt to get council members to elaborate on their policy. Police presence has been heavy at the meetings crowded by supporters and opponents of shale gas development, and in some instances police have physically enforced the policy on cameras.

Following the Feb. 14 meeting Barr, a freelance reporter from Oneonta, filed for a preliminary injunction against the borough. Represented by her sister, attorney Deborah Barr, Lisa Barr argued that the rule would place onerous restrictions on those trying to chronicle the council’s meetings Those meetings deal with issues of overwhelming public interest, such as distribution of clean water from the borough to residents in Dimock with polluted wells.  The conflict -- scheduled for a Feb. 27 hearing in front of Susquehanna County President Judge Kenneth Seamans -- was resolved beforehand during a meeting with the parties in the judge’s chambers. A key point of the agreement: Cameras and video recorders would be allowed to be used from chairs. Additionally, an area would be designated in which reporters with hand held or shoulder mounted cameras were allowed.

The council has to approve the measure before it is effective. Meanwhile, other issues remain unresolved concerning the right of people to participate at the meetings. Vera Scroggins said the agreement between Barr and the Council did not go far enough to ease restrictions on speech. She cited another new rule, also enacted on Feb. 14, that prevents people who reside outside the borough from speaking without special permission from a council member, regardless of how they might be connected with business or interests relevant to local government affairs.

It remains to be seen whether the council will pass reached between Barr and Patrick Boland, an attorney representing the borough, and, whether it will affect the tone of the meetings, which has been tense. 

Pro-drillers in NYC watershed demand $81 B for lost rights Resolution sets stage for next big battle over fracking ban

Drilling proponents are demanding $81 billion from New York state and New York City to compensate Delaware County residents for the loss of mineral rights.

The land in question harbors both the watershed that supplies New York City, and a prime section of the Marcellus and Utica shale drilling fairway, covering some of the largest natural gas reserves in the world. The state has included a ban on the controversial process of fracking in the part of the fairway running under the Delaware River watershed in the heart of New York’s Catskill Mountains, including parts of Delaware County.

The ban is spelled out in a policy document, called the SGEIS. In draft form for four years, the SGEIS is being develop as a guideline to oversee permitting of shale gas development in New York. The policy has drawn criticism from both drilling supporters, who see it as too restrictive, and opponents, who see it as too lax. Gov. Mario Cuomo said a final version is expected within months.

The latest version of the plan includes bans to protect sensitive fresh water supplies, including the watershed n the Catskills, from risks related of hyrdraulic fracturing, a controversial process that involves trucking, handling, mixing and injecting millions of gallons of chemical solution under high pressure into each well bore to stimulate gas production. In addition to the spent fracking fluid, the fracking produces waste from brine, heavy metals and naturally occurring radioisotopes that pour from the well bore.

The $81 billion demand for compensation for the loss of drilling rights in the Delaware watershed, stated in a resolution passed by the Delaware County last week, is yet another challenge to the soundness of New York’s policy and a likely prerequisite for a law suit. The resolution, drafted on Feb. 22 by Christa M. Schafer, clerk to the Board of Supervisors, states that drilling restrictions by the state and city would strip property rights from landowners in the towns of Colchester, Hancock, and Deposit within drilling buffer zones, and eliminate production from another 500,000 acres, or more than 80 percent of the county’s land base.

The issue of the legality of bans has just begun to hit the courts in other localities. Last month, two separate rulings in New York’s low court favored fracking opponents. On Feb. 24, state Supreme Court Justice Donald F. Cerio, Jr. ruled in favor of the Town of Middlefield’s ban on hydrofracking. The ban, issued by the Otsego County town in September, prompted a claim by Cooperstown Holstein Corp. that the ordinance denied rights of parties to reap economic benefits of a lease to develop mineral rights on 400 acres within the town. On Feb. 23, state Supreme Court justice Phillip R. Rumsey upheld the right of the Town of Dryden, in the Finger Lakes region, to ban mineral extraction activities. The case stemmed from a complaint filed by Anschutz Exploration Corporation, which argued that state permitting laws regulating oil, gas, and mineral extraction superseded local ordinances.

The Delaware County resolution sets the stage for another test over the rights of those who want to drill versus those who want to be protected from the impacts of drilling.

Click here to see a copy of the resolution

Chris Denton, an Elmira lease attorney, characterized the Delaware County resolution – and the implication it carries -- as a natural result of the anti-fracking movement. “Those who have opposed all oil and gas development are about to find that Newton's Third Law of Motion has an analogue in politics and the law -- For every action there is an equal and opposite reaction,” Denton said. “The constitutional issues are real, costly, and unresolved. With the current claim valued in the billions of dollars, there will be no shortage of quality legal counsel for the landowners and the towns in the pursuit of their claims.”

Deborah Goldberg, an attorney for the environmental group Earthjustice, said a law suit based on the loss of mineral rights, known as a takings claim, seemed like "a long shot" in this particular case. "It's hard to imagine what could justify damages of that amount," she added

Delaware County officials could not be reached late Friday. Check back for updates

Council forced to revisit rules limiting cameras at meetings. Montrose Borough to vote on free speech conflict Monday

Police await visitors to Feb. 20 Montrose Borough meeting
photo courtesy Lisa Barr

In response to a legal challenge, the Montrose Borough Council is scheduled Monday to revise a policy that limits cameras at public meetings.

The council will revisit the controversy, which stems from pressure on local elected officials amid growing news coverage of shale gas development in the small town in Susquehanna County, Pennsylvania.  Montrose, just north of Dimock Township and about 10 miles south of New York’s border, is part of a natural gas field in the heart of the Marcellus Shale. Water pollution blamed on drilling operators here has been a centerpiece of a national anti-fracking movement. That, in turn, has lead to counter protests by community members with incomes dependent on the drilling industry.

Unaccustomed to the intensity of coverage in their small town, all the council members abruptly got up and left a meeting on Feb. 8, after citizen reporter Vera Scoggins came to the meeting with a video recorder. They refused to answer questions from the press or anybody else in attendance. At the next meeting, on Feb. 14, council approved, without public comment, a policy that requires video cameras to be unmanned and mounted on tripods in the back of the room. The new rule does not allow operators to adjust or move the cameras, even if they are blocked.

Lisa Barr, a freelance reporter from Oneonta, filed for a preliminary injunction against the borough. She is represented by her sister, Deborah Barr, an attorney from Bradford County, Pa. They argued that the rule would place onerous restrictions on those trying to chronicle the council’s meetings, which deal with issues of overwhelming public interest, such as distribution of clean water from the borough to residents in Dimock with polluted wells. Town meetings in general, like courtrooms, provide critical venues for people to speak or report on sensitive and controversial events without being inhibited by the fear of libel. The Supreme Court has ruled that without this protection, known as “privilege,” the threat of libel can be used as a “legal club” that produces a “chilling effect” on free speech and hinders free government.  By extension, restricting fair reporting at these forums, free speech advocates argue, also has a chilling effect.

The conflict over restrictions on video cameras was scheduled for a hearing on Monday morning in front of Susquehanna County President Judge Kenneth Seamans. But it was resolved beforehand during a meeting with the parties in the judge’s chambers, which resulted in a memorandum of agreement between the parties. A key point of the agreement: Cameras and video recorders would be allowed to be used from chairs. Additionally, an area would be designated in which reporters with hand held or shoulder mounted cameras were allowed.

Lisa went to a council meeting on Feb. 20, but did not go inside with her camera, she said, because she found the presence of several uniformed police officers at the entrance intimidating. Some journalists have been arrested, as a matter of principal, in their efforts to bring light on governmental restrictions of free speech. They include Gasland producer Josh Fox, who was arrested on Capitol Hill Feb. 1 as he attempted to tape a Congressional hearing on an EPA investigation into hydraulic fracturing – an investigation which includes testing in Dimock. Lisa Barr is uncomfortable with that tactic because, she said, “it emboldens officials in small town to arrest innocent people when they feel it gives them the upper hand.”  Although Lisa Barr had legal alternatives because her sister is a lawyer, not everybody does.

Vera Scroggins, a videographer and activist who also works independently, said she is still concerned about the council’s attempts to limit and control public discussion, and the agreement between Barr and the Council did not go far enough to ease restrictions on speech. She cited another new rule, also enacted on Feb. 14, that prevents people who reside outside the borough from speaking without special permission from a council member, regardless of how they might be connected with business or interests relevant to local government affairs.

While the stipulation between Barr and the council technically resolves the legal proceeding initiated by the Barrs, it remains to be seen whether it will be passed, and if it is, whether it will change the overall tone of the meetings, which have been tense.  When I asked Lisa Barr about this, she told me Council President Tom LaMont refused to shake hands with her after her sister reached the agreement with Patrick Boland, the attorney representing the borough. LaMont has publically proclaimed that he has never talked to reporters during his time as an elected official. I thought I might have better luck with Boland, so I called him to get his thoughts about whether the matter was resolved. Following the lead of his clients, he refused to comment about the proceeding or the conflict in general.