NY health officials to release fracking plan by Nov. 6

New York state health officials expect to have terms nailed down within two weeks for several independent experts to review the state’s assessment of health risks associated with shale gas development.

Bill Schwarz, director of Public Affairs for the state Health Department, said today that the review would begin when contract terms were finalized with reviewers – a housekeeping task expected to be completed within a “week or two at the most.” The state will work with three or four experts (Schwarz was unsure of the final number) to review draft of a policy to allow permitting for shale gas development and the controversial practice of high volume hydraulic fracturing in New York.

DEC Commissioner Joseph Martens announced the plan for additional review five weeks ago with mounting pressure from environmental groups pushing for a more complete record of how fracking might affect public health. Activists from both grass roots and mainstream environmental organizations are urging the state to quantify a range of risks such as chemical exposure from air and water emissions, industrial accidents, community stresses related to noise, traffic, housing, and demographic changes, as well as considering resources necessary to manage them.

The most recent draft of the state’s shale gas policy, called the Supplemental Generic Environmental Impact Statement (SGEIS), has not yet been publically released. Initial drafts, released in 2009 and 2011, met with extensive public criticism. (There was no draft released in 2010, as stated in the original version of this post.) During public hearings and sessions, industry representatives, activists, landowners, unions, health professionals, and local and national government officials submitted more than 80,000 comments, all of which DEC staff and consultants must address before the SGEIS is finalized. The original document focused mostly on environmental concerns. The current (unreleased) draft also addresses health issues raised in the public comment period, according to officials.

The plan to enlist a panel of health experts to review the SGEIS was a matter of due diligence, according to Martens. “I want to ensure that the Department has the most legally defensible review so that when the Department issues its final determination on this matter, protracted litigation is avoided, whatever the outcome,” he said in a statement announcing the review last month.

New York state -- which sits over the Marcellus and Utica shale reserves -- has become the showcase of the national debate over the risks and merits of hydraulic fracturing and a related on-shore drilling boom. Until last month, most of the focus has been on Martens and DEC. Now DOH Commissioner Nirav Shah has an influential voice in the outcome. His department is in charge with choosing the reviewers and then ultimately recommending whether the DEC is ready to issue shale gas permits or has more work to do,

More information about the health review, including its scope, timeline, and the names of reviewers, will be released when the contracts are signed. Schwarz characterized the work as a “review of the review” that will essentially tell officials whether the state’s draft document adequately accounts for and mitigates health risks associated with fracking, or whether more work needs to be done and if so what recommendations should be followed.

The state is developing regulations for shale gas concurrently with its environmental review. Officials face a Nov. 29 deadline – a year from the last public hearing -- to complete the review or redefine and restart the rulemaking process. That would mean reopening the process to public hearings and the potential for another barrage of criticism. As recently as last week, Martens offered the possibility that the health review could be completed by Nov. 29 even though details of the plan have not been finalized. Under certain scenarios, that could technically allow permitting to begin by the end of the year, although other factors could discourage it, including administrative hang-ups in the technically and legally dense process, or political pressure after the elections.

The shale gas controversy locally and nationally is defined by influential stakeholders and interest groups allied with bitterly opposing positions. Anti-fracking activists in New York state are seeking a sanctioned and independent Health Impact Assessment, apart from the SGEIS, with its own scope and public review process. Landowners, supported by the industry, have threatened to challenge the state on Constitutional grounds if policy prohibits them from developing their mineral rights. Others are expected to sue if they feel the policy jeopardizes their health and wellbeing. Lawsuits have already been filed on other grounds, with local municipalities challenging the state and the industry’s exclusive control over citing of wells – an issue known as Home Rule.

While the Cuomo administration works through various legal and technical considerations of crafting shale gas policy, it must also be ready for a possible shift in political winds on November 6. If Republicans lose the Senate, then the Legislature would be in a position to mandate more rigorous standards that could effectively block or delay shale gas development. If Republicans hold the Senate, then it is unlikely the Legislature could pass bills to significantly delay drilling.