Thursday, November 29, 2012

New York’s fracking clock reset for end of February

The Cuomo administration has met a deadline to file a draft of its regulations to govern shale gas development, giving the state Department of Environmental Conservation an extra 90-days to finish the job that it began in 2008.

Several sources close to developments told me that today that the regs were filed with the Department of State yesterday, although the process has inexplicably been kept out of the public eye. According to protocol spelled out in the State Administrative Procedures Act (SAPA), the draft regulations will have to be publically posted by December 12 – two weeks after they were filed.

[Update 11/30/12: The regs are now available online by clicking here. Thirty-day public comment period will begin Dec. 12]

The state filed for the 90-day extension to allow time for an independent panel of health experts to review draft policy after environmental groups raised concerns it insufficiently addressed concerns over fracking’s impact on public health.

The regs are being developed as the state works on a review of the impacts of hydraulic fracturing that it began in the summer of 2008, called a Generic Environmental Impact Statement (SGEIS). While there is no firm deadline to complete the SGEIS, the Administrative Procedures Act prevents rules from being finalized before the environmental review is complete. Although Cuomo has been silent on the controversial issue, his administration’s compliance with the rulemaking deadline sends a signal that he intends to complete the review and the regulations by March, at which time permitting for High Volume Hydraulic Fracturing could begin in New York after being on hold since the shale gas rush began four and a half years ago.

There are other scenarios, however. If the work is not completed within 90 days, the administration could still let the process expire and reopen the process for public hearings. (Public hearings allow residents to speak in front of DEC staff in an open forum while their comments are recorded on the record and tends to be a much bigger tool for activists than a public comment period, which allows comments in writing only.)

The administration’s efforts to meet yesterday’s deadline shows that officials are doing what they can to keep the process from expiring and reopening the hearing process. The biggest wild card, however, remains with the Legislature, which has been under pressure from both drilling opponents and proponents. Leadership in the Democratic controlled Assembly have shown a willingness to ban fracking, while the Republican controlled Senate has been supportive of drilling. While Democrats still control the Assembly, control of the Senate following the recent election will be unknown for some time.

Wednesday, November 28, 2012

Can citizen watchdogs effectively shape shale gas era? Dealing with global reality begins in our back yards

With declining government resources to police a growing shale gas industry, can activists armed with cameras and notebooks pick up the slack?

In a series of New York Times Dot Earth posts earlier this month, blogger Andrew Revkin examines the possibility of a Do It Yourself approach to shale gas oversight, using the Web as a primary tool to create “… unparalleled opportunities to foster transparency and awareness, point out best and worst practices and share and shape ideas.” Revkin cites success stories – and Skytruth – grass roots sites that have facilitated and informed the shale gas discussion by compiling and distilling relevant industry information by and for D.I.Y.ers. The scope of problems and problem-solving ambitions is broad, but Revkin focuses on methane leaks that are alarmingly visible when using infrared cameras pointed at wells, compressor stations, and other production areas.

The pros and cons of this call to action are expressed in subsequent posts by Walter Hang, an anti-fracking activist in Ithaca New York and owner of a firm that compiles environmental data for governments and engineers, and Frank O’Donnell, a clean-air campaigner in Washington. O’Donnell choses citizen action rather than “endure the long long wait” of a government regulatory revival to curb air emissions. He cites other precedent-setting examples of grass roots environmental oversight, encouraged by the Clean Water Act, including “watershed watchdogs” that spur government to address water pollution; and he raises the possibility that cash awards could be available for the work of volunteers that leads to convictions:

Similar watchdog patrols (“methane monitors?”) could be deployed with some financial incentives under the Clean Air Act. A little-known and, to my knowledge, never used, provision of the Act is designed to spur citizen action.

Hang is less optimistic. The complexity of the task invites quality control problems leading to bad analysis. “Citizen mapping efforts sound good, but they are plagued by serious limitations and spatial errors that advocates gloss over and the public does not know about… Citizens might review data that are mislabeled, mischaracterized, outdated or incomplete. This happens all the time.”

Having some experience with citizen activists, watchdogs, regulators, and industry, I offer my two cents. Spotting problems is one thing. Classing them as violations is another. Enforcing them is still another. For methane leaks, the first two of these three tasks will be somewhat more doable after the Obama administration passed the first federal regs for air emissions related to fracking operations earlier this year. Unsurprisingly, these were watered down in the face of industry resistance, and it will be at least two more years before they go into effect. Even then, expect continued resistance from the industry, as expressed by this quote by an American Petroleum Institute official in a Huffington Post report:

We don't need (the EPA) to come and tell our members we will save you money," said Howard Feldman, the institute's director of regulatory and scientific affairs. "Their business is natural gas. They get it that they are trying to capture as much gas as they can.

There are many compelling case studies of citizens attempting to enforce environmental laws and spur government to action, some of which I document in my book, Under the Surface. I count John Hanger, the former Pennsylvania DEP chief under the Rendell Administration, as a gauge on issues related to the effectiveness of regulatory enforcement of Big Oil. Hanger generally supports shale gas because he sees it as a practical alternative to coal. Yet he has not backed down from fights to hold operators accountable for pollution. Hanger was a main figure in a battle against Cabot Oil & Gas over methane migration that, according to his staff, permanently ruined an aquifer in Susquehanna County. Hanger demanded the company pay for an $11.4 million pipeline to bring fresh water to residents. Cabot fought back, and he ended up with a settlement that gave homeowners systems to treat the pollution in their homes and funds for the long-term maintenance of the devises The settlement cost the company a third of what the pipeline would cost.

Hanger has identified methane migration from abandoned wells as the most pressing problem with shale gas development, yet he also lost the fight for companies to post bonds to cover expenses of plugging and capping wells. This is a task that generally falls to government – or to no one in particular -- when companies go broke, walk away from problems, or the issue of legacy becomes mired in the complexity of multiple parties arguing over undocumented circumstances of past and present accountability.

Regarding active wells, there is an argument that companies are self-motivated to fix methane leaks. It’s simply a matter of good business sense because it prevents product from escaping. If this is true, why hasn’t it happened yet? Answer: because the cost of fixing often outweighs the return on investment, especially if gas remains cheap and plentiful. While some businesses can be counted on to serve public interest even when it runs counter to their bottom line, others cannot. Civic duty is not their charter, nor should we expect it to be. The it’s-good-business-to-be-a good-neighbor principal is applied as a matter of discretion, and many times it’s a public relations calculation. Regulators at the EPA and the Pennsylvania DEP (among other agencies) know through bruising defeats (example here) that enforcing environmental law can be a frustrating and difficult task when the industry digs in its heals. Past experience tells us the industry – by in large -- is ready to resist accountability for methane emissions and methane migration in the same way it is resisting mandates to make the chemicals it uses a matter of public record. (More on that here)

Before we can count on volunteer policing efforts to become a meaningful supplement to enforcement, a fundamental imbalance has to be addressed. It starts with this: The industry is dependent on policy that exempts it from federal laws to identify and track production, handling, and disposal of environmental hazardous. The uncontrolled, undocumented release of gases – in both the ground and the air -- accounts for one of three critical areas of concern. Others involve discharges of waste into the ground and water. For most industries, these discharges are regulated through the federal Resource Conservation and Recovery Act, which provides a cradle-to-grave accounting of toxic substances. The policy became relevant in the late 1970s - the era of the iconic Love Canal disaster caused by unregulated chemical dumping. Discharges are also controlled through the Safe Drinking Water Act, which regulates what can be injected into the ground. Exemptions from these restrictions are critical to the viability of shale gas development because hazardous waste is an expensive thing to dispose of, and because our government, with few exceptions, doesn’t allow the injection of poisonous chemicals into the earth.

In addition to providing operational advantages, the industry’s exemption from hazardous waste laws take care of another potential showstopper for drilling companies – Public Relations. Waste that includes glycols, acids, hydrocarbons, volatile organics, radio nuclides and hundreds of other additives or naturally occurring compounds deemed hazardous when produced by another industry are considered non-hazardous in the eyes of the government when flowing from oil and gas wells. Selling natural gas as a clean alternative would be a much taller order if that pitch were burdened with the PR nightmare of a hazardous waste label – the very thing that doomed the advancement of the nuclear power industry in this country.

The overriding issue, though, is that conforming to these laws would severely limit legal options for waste disposal for an industry that creates a lot of it. To date, shale gas developers have produced more than 1.5 billion gallons of liquid waste from Pennsylvania well fields alone, according to a recent study by researchers at Cornell University and Penn State. And while the paper notes that the industry has increased “reuse and reliance on industrial and on-site treatment,” recycling of shale gas waste remains a process that is unregulated, self-reported, and self-defined. The study, Wastewater Management and Marcellus Shale Gas Development: Trends, Drivers, and Planning Implications, found the state’s records were incomplete and prone to error, with the endpoint of 13.4 percent of waste volumes listed as “undetermined.” (Note. That figure was for 2008. Brian Rahm, one of the authors, noted after this post that "The database has arguably done a better job tracking waste in more recent years although ... there are still a variety of errors, as well as evidence of under-reporting." See Rehm's full response below.)

Meanwhile, the industry will continue to do what it can to discourage or refute independently produced science that suggests the possibility that this unregulated waste can end up in places over the near or long term where it causes harm. I have spoken to various researchers at universities who – proposing studies with their own funds — have been denied access to drill sites to conduct “before” and “after” water tests on their terms, rather than concede to industry stipulations. The EPA ran into similar problems in national study to evaluate the impact of fracking on groundwater. (More on that here) Without the “before” picture, it’s difficult to hold industry accountable for water pollution.

There is good reason for the resistance. Science that could encourage a regulatory crack-down on the oil and gas industry would likely threaten its economic viability, especially if gas prices remain low. This could happen in New York state, where the policy battle for access to world-class gas reserves, featuring both the Marcellus and Utica shales under the Southern portion of the state, has raged for more than four years, under two administrations, without resolution. In the meantime, permitting for shale gas wells remains on hold. The National Resources Defense Council is among an influential contingent of environmental groups looking for stronger regulations if not an outright ban. Specifically, the NRDC is urging Governor Andrew Cuomo’s administration to adopt hazardous waste rules spelled out in RCRA for shale wells operating within the state’s borders. In support of this, the agency has issued a report that includes a list of toxic substances found in samples from drilling wastewater. They include varying concentrations of benzene, toluene, xylene, volatile organic compounds, heavy metals, and radionuclides. The list is itemized in Table 1 of the report, titled “In Fracking’s Wake: New Rules are Needed to Protect Our Health and Environment from Contaminated Wastewater. “ (The report is one of several position papers the NRDC has published that characterize the agency’s regulatory approach to the fracking, including full disclosure of fracking chemicals.)

I’ve heard this strategy called strangulation by regulation, and if successful in New York, it would be a victory for an anti-fracking movement that has flourished under the Empire State’s brand of celebrity-lead activism. But if shale gas development Is to be strangled, the act will require some urgent soul searching and rapid (some would argue unfeasible) practical adjustments by a public that has long enjoyed the benefits of cheap abundant energy without having to look too closely from where it comes.

Where energy comes from is the question of this century, and the on-shore drilling revolution taking place in America’s back yard is forcing us to take a good close look. Anybody eager to ban fracking in New York state, though, owes it to themselves to consider the global picture. John Cronin, Senior Fellow for Environmental Affairs at Pace Academy for Applied Environmental Studies, summed it up neatly in a recent email exchange. (Note, Cronin was responding to a query from Revkin about relying more on coal if Governor Cuomo is to eliminate shale gas and nuclear power production in New York. I find his point provides context for the fracking debate, and post it here with his blessing)

We are privileged to have the available time to debate a risk-free, domestic energy future. And whom do we owe for the breathing space to indulge our ruminations? The developing and war-torn nations to which we outsource the big risk, in return for boatloads of oil.

The energy tradeoff debate cannot be contained by the perimeter of the United States. Every megawatt provided us from out of country causes as much or more harm in those nations as domestic energy production causes at home. Our current energy policy has already made us complicit in and dependent upon significant environmental destruction outside our borders. The short-term campaign to dispatch with traditional energy sources in pursuit of a no-risk, long-term energy future for Americans is directly dependent upon a continuation of, even an increase in, some of the worst environmental problems on the planet, conveniently all in other nations. This is the crime of externalization we like to roll out when fighting domestic polluters -- only writ much larger.

Consider Nigeria, where Americans are a dominant oil customer, importing 40% or more of that nation's petroleum. Hundreds of billions of dollars of environmental damage to the Niger River Delta. Devastating human health consequences. Massive corruption. An unstable, almost bankrupt state government. A life expectancy of 51. Daily wages of $5 - $8. Loss of indigenous industries. Civil unrest. Environmental and political terrorism. Incursions by Al Qaeda. In brief, current American energy policy includes the environmental, political, economic and social destruction of Nigeria.

Call it the Law of Conservation of Risk. For the foreseeable future, we cannot destroy the risk inherent in energy consumption and production. If we eliminate it at home. it simply shows up elsewhere, in most cases in nations where laws are weaker, and citizens subservient to their governments.

Developing a globally sufficient and sustainable energy supply is one of the primary problems of our age, and it extends beyond ecological issues to human rights and environmental justice. And before we can address these problems, we first must be able to see them clearly and then be willing to take a hard look. That starts with buy-in on a grass roots level, whether it is thinking about whether you really need two cars, or that extra stuff you buy this Holiday season, or whether it involves getting out in the field with an infra-red camera to help advance the understanding methane leaks.

During visits to universities to talk about what I’ve learned as a reporter covering shale gas development in New York and Pennsylvania, I’ve been inspired by students and faculty taking D.I.Y. approaches to problems. One example: The Finger Lakes Institute at Hobart William and Smith coordinates outreach programs to enlist high school students to collect water samples in the Seneca Lake watershed – a prospective shale development zone that includes a project to warehouse gas and propane in reclaimed salt mines. Because of the changing dynamics of watersheds and the geographical expanse they tend to cover, tracking water conditions over hill and dale is an ambitious and painstaking job. Yet this is not a function that is likely to be covered by industry or government anytime soon. And without an accurate “before picture” of all the likely points of impact, it will be difficult to document environmental changes related to shale gas development and establish the groundwork for accountability.

Whether from a “neighborhood watch” approach outlined by Revkin, field work by students, or through watchdog journalism, bringing public pressure to bear on flagging problems where government falls short is never a bad idea. But neither is this: Embracing the vision of reformists who champion energy conservation while pushing with all their might against the technical and social inertia keeping this generation from advancing beyond the fossil fuel age. That’s a tall order, especially when accounting for developing countries aspiring to the standard of living and freedoms that U.S. citizens have enjoy for generations, but like D.I.Y. patrols, it’s a start, and it can start in our own back yards.

Tuesday, November 27, 2012

NY to file 90-day extension to finalize fracking rules

With a deadline imminent, New York State environmental officials will file for an extension to allow fracking regulations to be finalized while officials finish evaluating health risks associated with the controversial practice to extract gas from bedrock.

DEC spokeswoman Emily DeSantis conveyed the information in an email late this afternoon. The plan to file for an extension comes as an alternative to letting the rulemaking application expire and starting again – an option that would require reopening the process to public hearings that have become a lightening rod for dissention.

The deadline is Thursday, a year after the last public hearing on the issue. Filing for an extension seems logical from an administrative standpoint, but it comes with a key requirement: releasing a draft of the regulations for public comment. That requirement is at the center of a new upwelling of protests by environmental groups who don’t want any regulations released – even in draft form-- before a panel of independent experts have assessed how effectively the state has addressed health risks associated with high volume hydraulic fracturing.

Kate Sinding, senior attorney for the National Resources Defense Council, responded in a post on the agency’s blog, the Switchboard, that the decision to move forward rather than step back from the deadline

would also make the governor the Grinch who stole yet another Christmas from New Yorkers by delivering a set of unfinished revised rules – ones that don’t reflect the results of the on-going health and environmental reviews – and asking the public to weigh in on them over the holidays. This means fewer people are likely to be able to voice their concerns in time for the state to consider them as it finalizes the rules.

The choice will be welcomed by industry proponents eager for shale gas development to begin in New York because it sends a signal that the Cuomo administration is determined to push ahead with a plan to finalize regulations by the end of February – timing that corresponds with the completion of the health review. The Join Land Coalition of New York, a group of property owners lead by Broome County Landowner Dan Fitzsimmons who are eager to secure gas leases, issued a statement that the group is “cautiously optimistic” that the four and a half year process is nearing an end, and that “We are encouraged that the Governor and DEC have a plan to avoid expiration of the regulatory review.”

The process to adopt regulations – governed under the State Administrative Procedures Act – has progressed concurrently with an environmental review of fracking, called a Supplemental Generic Environmental Impact Statement (SGEIS). But unlike the SGIES, the SAPA rulemaking process must be completed within a year or restarted. The SGEIS, which is used to establish permitting guidelines in the absence of regulations as well as a tool to inform policy makers who are drafting regulations for a new industry, has been revised multiple times since 2008 after contentious public hearings and comment periods. Permitting remains on hold until the SGEIS is complete. That also could be in February, depending on the assessment and recommendations issued by the panel of health experts.

“DEC will file a notice for a 90-day extension allowed by state law to continue to work as [Department of Health Commissioner] Dr. Shah’s health review of the SGEIS comes to completion,” Emily DeSantis said in an email this afternoon.

Tuesday, November 20, 2012

NY's fracking struggle moves past Nov. 29 policy deadline Questions on health could prompt indefinite delay

Mired in controversy and unable to make a Nov. 29 deadline to finalize New York's shale gas regulations, Gov. Andrew Cuomo’s administration now has to decide whether it will seek a 90-day extension or simply back away and start again.

One thing we know, the administration is sharing very little of the internal mechanics of the policy struggle, leaving stakeholders to connect the dots and read what they can into the governor’s vague statements. In an interview with radio host Fred Dicker on WGDJ AM today, Cuomo confirmed what was widely anticipated -- that the administration would be unable to meet a Nov. 29 deadline to finalize shale gas regulations.

“We want a proper process,” Cuomo said. “We want it expeditiously as possible. I don't see how we get it done by next week."

The administration now faces the choices of letting the rulemaking application expire and restarting the contentious process – including more public hearings. Or it can file for a 90-day extension, which will require releasing a draft of the regulations and opening the process to public comment. (More on those options here.)

Regardless of future options, missing the deadline sends a signal that the state is unprepared to move foreward with shale gas development.

Kate Sinding, senior attorney for the National Resource Defense Council, has met with DEC officials regarding the process in previous months. Sinding reported that the agency has promised the NRDC and several other influential environmental groups that it would not move forward with policy decisions until it had accounted for health risks associated with high volume hydraulic fracturing. To that end, the agency has commissioned a group of experts to review the DEC’s work and make recommendations, possibly by late February. (More on that here)

Sinding said today she believes the DEC will not seek an extension, because that would require releasing regulations that have not taken into account recommendations from the health panel. And that would be acting in bad faith.

“The anger they would provoke (among environmental groups and ant-fracking activists) would be very significant,” Sinding said. “The agency has taken the position that is not going to be subject to pressure or rush this through, and I don’t expect that to change.”

Cuomo, meanwhile, has already provoked the anger of industry supporters by conceding the Nov. 29 deadline. Drilling proponents and industry groups, including the Joint Landowners Coalition of New York and the Independent Oil and Gas Association of New York, have been urging the administration to finalize regulations to open access to New York’s portion of the Marcellus and Utica shales – two of the largest shale gas reserves in the world -- sooner, rather than later. Today Dan Fitzsimmons, head of the Join Landowners Coalition, wrote in an open letter to the governor that the state has already considered 80,000 comments, and delay beyond the Nov. 29, deadline "is a breach of faith in our government and flies in the face of the promise that New York is beyond its dysfunction and truly open for new business investment.”

Sunday, November 18, 2012

As health panel reviews NY fracking policy, what’s next? Timing, scope, personnel signal Cuomo’s ambivalence

After being leaked to the press last week, the names of a blue-ribbon panel commissioned to evaluate the soundness of the state’s policy on shale gas are finally public. And with that, Governor Andrew Cuomo continues the appearance of moving his policy on fracking forward while remaining fundamentally uncommitted. (See previous post about his ambivalence here.)

At stake is exploitation of the Utica and Marcellus shales, world class carbon reserves extending under the Southern part of New York. Joe Martens, Commissioner of the state’s Department of Environmental Conservation, announced in mid-September that he was calling on the Department of Health to review public health risks associated with high volume hydraulic fracturing, in part to fend off possible law suits seeking to challenge the integrity of the state’s controversial policy development, now in its fifth year. The health review is headed by DOH Commissioner Nirav Shah, who is overseeing the work of an ad hoc panel of independent experts to advise the state.

The names and qualifications of the panel have been a matter of speculation since the review was announced in September until this past week, when an anonymous state official leaked the names to the Associated Press. Now we know panelists are John Adgate, chairman of the Environmental and Occupational Health Department at the Colorado School of Public Health; Lynn Goldman, dean of George Washington University’s School of Public Health and Health Services; and Richard Jackson, chairman of the Department of Environmental Health Sciences at the University of California Los Angeles’ Fielding School of Public Health.

The credentials and integrity of the group were lauded by fracking critics, fearful Cuomo would use the panel to rubber stamp questionable policy. Drilling proponents criticized the choices. That reaction, like the reaction of partisan parities to the appointment of a judge, in itself gives clues regarding the panel members’ professional predisposition and sympathies. More on that in a moment.

Who they are is important. But equally important is the task to which they have been assigned, the time they have been given to do it, and the influence they could bring to bear on the process. The governor’s office is sharing none of this publically, leaving reporters to piece together possible scenarios.

Technically, the state faces a November 29th deadline to finalize the regulatory framework for shale gas development in New York. If it misses the deadline, the rulemaking process will expire and officials will have to revamp proposals and reopen the public hearings that have become a lightening rod for well-organized public opposition. But it most certainly will take longer than 12 days to put New York’s regulatory house in order. How much longer depends on a collection of unresolved administrative and legislative issues. Economic pressures tied to the price of natural gas, now very low, may also come into play.

Here are some possible outcomes:

Meeting the Nov. 29 deadline: The state issues its regulations later this week or early the following week, narrowly sidestepping the mandate to restart the contentious and time-consuming public process. For this to happen, the advisory panel would have to fast-track a complicated and controversial review, exposing the administration to more criticism from activists that the panel was never intended as anything more than political window dressing. The state could also issue the new rules before the health review is complete without technically violating the law. That would come with a political cost to Cuomo because Martens has told influential environmental groups that the state would not proceed until health issues were taken into account.

Seeking an extension: The administration could file paperwork this week or early next week for a 90-day extension. That would require submitting updated drafts of the proposed rules and allowing 30-days for written public comment. This would open the door for more criticism and delays, but to a lesser degree than would public hearings. As reported by Jon Campbell of Gannett’s Albany Bureau, panelists expect their work to be finished in mid February, timing that would fit with a possible extension. Moreover, the extension would allow Cuomo to test the political water of the new Legislature. Control of the Senate still remains up in the air weeks after the election. Legislation that will influence shale gas policy in New York on issues ranging from moratoria to health studies to home rule depends on the outcome. Regardless, waiting for the Legislature to pick up the political hot potato may deflect some pressure from Cuomo. Or not.

Letting the proposed rules expire: This would essentially send the rank and file policy makers, who have already spent years attempting to evaluate and account for environmental risks of shale gas development, back to the drawing board. Updated policy would have to be re-introduced and subject to more public hearings, which have proven to be an effective tool for fracking opponents to derail or slow shale gas development. The process has already been delayed for years by 80,000 comments submitted in previous hearings and comment periods by critics on both sides of the issue.

Cuomo’s selection of panelists, when finally revealed last week, was met with approval from fracking critics and disapproval from supporters.

Energy in Depth, a gas-industry-funded group, questioned the integrity of previous work by Adgate, co-author of a Colorado School of Public Health study in March implicating shale gas development as a public health threat. As reported by Campbell: “It’s simply hard to imagine how a panel including the author of the most controversial health impact study in the nation ... will produce anything that resembles an objective review,” said Energy in Depth spokesman John Krohn. The Joint Landowners Coalition of New York, a pro-fracking group, issued a statement along similar lines: “We … are concerned that one member of the committee is the author of a Colorado study which has been widely criticized.”

Public health experts and anti-frackers, meanwhile, praised the panel’s qualifications. Sandra Steingraber, an ecologist and founder of New Yorkers Against Fracking, characterized panel members as “luminaries” in the field of public health, and well equipped to fully assess the risks of fracking. But, she added, the limited scope and timeframe of their charter does not appear to allow that. “The people are luminaries,” she said. “The process is a dismal fog. There is no transparency whatsoever.”

Lack of more detailed information about the scope and mechanics of the process also drew criticism from other quarters. On Thursday, more than 90 medical professionals publically called for a more independent thorough and transparent process. “New York’s community of medical professionals reiterate our call for an independent, comprehensive health impact assessment of these risks and their attendant costs,” Andrew Coates, a physician at Albany Medical College, said in a statement.

So we approach the holidays with state agencies spread thin with Hurricane Sandy recovery efforts, the shale gas dilemma far from resolved, political stakes higher than ever, and an important deadline looming.

Sunday, November 11, 2012

After 5 years, water remains focus of drilling debate Transparency issues still hamper knowledge base

When Marcellus production ramped up in Pennsylvania five years ago, questions arose about the volume, contents, and endpoint of the waste it produced and its impact on water supplies.

If we knew then, what we know now….

We still wouldn’t have known much. Despite advances in public awareness of the risks and rewards of drilling, what a land play looks like, the sums of money at stake, the role of shale gas in domestic energy production, and technical aspects of high volume hydraulic fracturing, precisely tracking the shale gas waste stream and determining its impact on water supplies remains a politically complicated task. And it’s a task hampered by an inconclusive, and often conflicting body of science and policy initiatives.

So the work continues. Last week, news on several fronts demonstrated both the level of commitment to assess and address problems, and the amount of work still to be done by scientists and policy makers. Here’s a summary:

BROMIDES IN THE WATERSHED: High concentrations of bromides, one of the many constituents of drilling waste, are often a signal of larger water quality problems related to Total Dissolved Solids (TDS), a unit that generically quantifies concentrations of all soluble material in a given water sample. These include various constituents of drilling waste, including brines and metals.

With the onset of the Pennsylvania Shale Gas Boom from 2008 through 2010, TDS levels spiked in major Pennsylvania watersheds, including the Monongahela and Allegheny river systems. The spikes coincided with the disposal of drilling waste to municipal treatment plants that were not equipped to treat it. After TDS levels hit crises levels in the Mon, the Pennsylvania DEP drafted new rules, under Chapter 95 of Pennsylvania’s Clean Streams Laws, to discourage the disposal of drilling waste at treatment plants by setting TDS ceilings for incoming shipments. But many plants ended up grandfathered into the old standard, and the industry found other ways around the new rule, and the problem persisted.(More on tha here) After repeated calls for the industry to voluntarily stop taking drilling waste to plants ill equipped to handle it, TDS levels have recently dropped dramatically in the Mon River. (See Friday's Associated Press report here.) But they remain a problem in the Alleghany. See the Trib Live report here. The picture is complicated by other factors – including mine drainage -- that influence TDS pollution.

EPA STUDY: With the presidential election decided and the future leadership and direction of the EPA no longer an uncertainty, a leading agency official provided an update Friday on a critical federal study to assess the impact of fracking on groundwater. EPA Science Advisor Glenn Paulson reported that a progress report on the study would be released on schedule by the end of this year (within seven weeks). The final study will be submitted for peer review in 2014.

The EPA endeavor includes analysis of data from 21 research projects in several drilling states to determine if and how the country’s natural gas boom and fracking in particular is affecting drinking water. Paulson gave the update at the University of Pittsburgh’s annual conference on the health effects of shale drilling. Trib Live’s Timothy Puko reported that Paulson told a crowd of about 150 people that the EPA effort “has the promise to be pretty close to definitive on the drinking water/fracturing issue ... as anything else that’s going on.”

AP’s Kevin Begos also covered the conference, where Paulson built high expectations for the study’s significance. Begos reports:

Paulson said the study of fracking and drinking water “is one of the most aggressive public outreach programs in EPA history.” He said the progress report will show the “range and depth” of what EPA is looking at, and will be open to public comment.

“It will really be a lot for experts to chew on in their particular fields,” Paulson said, noting that EPA is reaching out to geologists, academic experts, the industry, environmental groups, and even Indian tribes.

The EPA study was commissioned in 2010 by members of Congress, who challenged the industry’s exemption from the Safe Drinking Water Act. The exemption, known as the Halliburton Loophole, was granted under the Bush/Cheney administration to help encourage shale gas development.

While the EPA”s work is reportedly progressing on schedule, the agency may not be able to complete its wish list of objectives, according to Puko’s report. Specifically, Paulson told the Pittsburgh audience that officials have been unable to get industry cooperation for access to well fields in Washington County or other areas to conduct a series of controlled tests to gather localized water quality data before and after drilling.

DEP TESTING PROTOCOL: Earlier this month, Pennsylvania State Rep. Jesse White called on state and local authorities to investigate the DEP for fraud and misconduct – charges stemming from allegations that the agency manipulated water quality data in reports to residents in drilling districts.

The DEP has a long-standing policy of releasing results that are filtered through agency officials rather than a complete set of raw data, according to agency Secretary Michael Krancer. Officials have defended this practice as a tool to screen relevant data from noise.

White sees the practice as an easy and convenient tool to manipulate data. He cited an example stemming from testimony of a state official in a lawsuit brought by homeowners against Range Resources and the DEP. DEP Bureau of Laboratories technical director Taru Upadhyay testified that agency employees use a ‘Suite Code’ that limits information coming back from the lab to the field office, and ultimately to the property owner. For example,. Suite Code 942 reports results for only eight of 24 metals in the test: barium, calcium, iron, potassium, magnesium, manganese, sodium and strontium. It doesn’t report results for silver, aluminum, beryllium, cadium, cobalt, chromium, copper, nickel, silicon, lithium, molybdenum, tin, titanium, vandium, zinc and boron.

Authorities defend the practice as a long-standing and sound method to filter noise from relevant data. Although metals excluded from the report might be byproducts of drilling, the DEP does not consider them to be prevalent and typical markers of a drilling-related problem. According to Krancer, “Professional staff, trained in evaluating water complaints, utilize the relevant data and information to inform their conclusions. Although other results are generated by the lab tests, such results would not contribute to answering the question at hand--determining whether there is a connection between the gas well activities and the water supply.

Critics argue that the fields blocked by the suite code are useful indicators of drilling contamination and other problems. Moreover, homeowners have a right to all results of water quality tests that can flag health risks.

Looking for a non-partisan voice in this, I will offer the reflections of John Hanger. Hanger is the former DEP Secretary who often comes to the defense of shale gas development and the DEP’s handling of regulations. But not this time. He has called on the agency to release comprehensive test results as a matter of policy. He told Rachel Morgan of Time On Line:

My view is that the (DEP) should release all the test results of any substances found,” he said. “It’s just better to release all the substances to the owner of where the water was taken, whether or not the pollutant of substances (found) are relevant to an investigatory purpose. It would concern me if the department found a high (concentration) of a substance that posed a threat to the health of the owner and would not release it.

The questions of bromide levels in rivers, the status of the EPA study, and the controversy over the DEP testing protocol represent just a few of the dynamics in the matrix of developing science/policy/politics that will shape long-term viability and economics of shale gas development. It’s been a long and grueling process. Don’t expect it to end anytime soon.

Wednesday, November 7, 2012

Election analysis: Who gained an edge in fracking war?

President Barack Obama’s successful campaign against Mitt Romney may have some anti-fracking activists exhaling, but don’t expect any plans from the White House to discourage on-shore drilling in the near future.

Based on the GOP’s campaign platform, a Romney administration would have done everything within its power to keep federal drilling regulations minimal to non-existent. Obama, gearing his campaign almost exclusively to voters in the swing states, promised to encourage blue-collar jobs through an “all of the above” energy strategy that embraced shale gas development “as a priority.” With the election behind him, Obama will of course be subject to pressures within his own party to immediately broaden his focus beyond his pitch to woo swing states hopeful of mineral extraction jobs.

As I recount in Under the Surface, Obama provided plenty of encouragement for shale gas development in his first term. In 2011, he issued Blue Print for a Secure Energy Future, a plan that recognized the importance of shale gas development, including a component to support global efforts to displace oil with natural gas. Now comes the big question for his second term: Will Obama feel the political urge to federally regulate shale gas development given concerns over its impact on water and air? More specifically, will the Obama EPA provide the groundwork necessary to undo federal regulatory exemptions, known as the Haliburton Loophole, passed under the Bush/Cheney administration?

As I have written in a previous post, that process would begin with a study examining fracking cases now underway by the EPA. Even if the agency were to confirm and quantify fracking risks that are now – due to a lack of study -- mostly a collection of disparate reports, repealing the Haliburton Loophole would take an act of Congress. That is a long shot, at least within the next two years, with Republican control of the House of Representatives. But a final draft of the EPA study is due for public comment and peer review in 2014 and could become fodder for a midterm election battle.

States have regulatory control over shale gas, and New York state, which sits over promising sections of the Marcellus and Utica Shales, is worth tracking for those following shale gas politics. New York is the centerpiece for the grass roots anti-fracking movement and the only state with potentially worldclass gas reserves that has held back on issuing permits due to environmental and health concerns. It’s also led by a governor frequently cited as a potential presidential candidate in 2016.

Despite the oft-heard rhetoric that “science will decide” the future of shale gas development in the Empire State under Gov. Andrew Cuomo’s administration, politics will play a large role, and at the moment New York’s political picture is murky. Candidates for and against shale gas development running in districts over some of the most promising reserves had mixed results yesterday, likely influenced more by their campaign war chests than their positions. Two examples: Senate Deputy Majority Leader and drilling proponent Tom Libous handily defeated Democratic challenger John Orzel to keep his 52nd District Seat. In the Assembly’s 123rd District, incumbent Donna Lupado easily defeated Julie Lewis, a drilling proponent and leader of the Joint Landowners Coalition of New York. Lupardo, a senior Democrat and member of the Assembly’s Environmental Conservation Committee, favors a full scale health study of fracking risks.

Lupardo is part of a house that has been reluctant to allow drilling to proceed in New York without more assurances of its safety, but unable to get bills through the Republican-controlled Senate. Although it looks as though yesterday’s election gave Democrats control of the Senate, it’s unclear how the numbers will influence Senate leadership. There are many dynamics in play, including races that are too close to call, and the direction of a group of independently minded Democrats who have sided with the Republican majority in the past and have been duly rewarded with various perks. Albany reporter Jimmy Vielkind breaks down these and others factors that will play out in coming weeks and months in this excellent post for Capital Confidential. (It’s worth noting here that fracking issues also played into some Congressional races. In New York, two noteworthy challengers running on anti-fracking platforms lost to Republican incumbents. Dan Lamb lost to Richard Hanna in New York’s 22nd District and Nate Shinagawa lost to Tom Reed in the 23rd District.)

So what have we learned at the end of the day after the 2012 elections? The political circumstances that will determine the long-term prospects of shale gas development are still unfolding among a divided electorate and political gamesmanship.

Tuesday, November 6, 2012

New York fracking health study takes back seat to Sandy “All hands on deck” for officials coping with housing crises

Details of a pending evaluation by health experts to gauge the soundness of New York’s state policy on fracking will be delayed as officials deal with a health crisis in the wake of tropical storm Sandy.

Bill Schwarz, director of Public Affairs for the state Health Department, gave me a brief status report today from the New York City metropolitan area, where local, state, and national government agencies continued storm relief efforts. Officials from the state Department of Health were overseeing the evacuation of several nursing homes and other health facilities without power in anticipation of more bad weather and cold temperatures this week.

“It’s all hands on deck,” Schwarz said. He added that administrators are still working to finalize contracts with independent consultants to evaluate whether the state DEC’s pending shale gas policy is sufficient to evaluate and mitigate associated health risks. As reported in a previous post, the contracts were originally expected to be completed by today.

DEC Commissioner Joseph Martens announced the plan for additional review two months 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 state faces a Nov. 29th – -- a year after the last public hearing -- to finalize regulations for the industry, or restart the process. The rulemaking process is being conducted simultaneously with an environmental review, called the Supplemental Generic Environmental Impact Statement. Martens has not said whether the state expects to meet the Nov. 29th deadline.

New York State remains battleground in fracking fight Industry’s political pull tied to outcome of today’s races

While New York State is expected to be uncompetitive in today's presidential election, it remains a battleground in the political battle that will influence the future of shale gas development. The outcome of local, state, and Congressional races today will play an important role in testing public appetite for the industry in the Empire State, where fracking is on hold pending further review. Will districts in New York’s Southern Tier -- over one of the worlds most promising shale gas reserves --- muster the political will to advance or delay shale gas development? Here are several key races in Marcellus Shale Country that will begin to answer that question. I will be posting results of these races at they becomes available on my Facebook Page.

New York State Assembly 123RD District: Incumbent Donna Lupardo, a senior Democrat, versus Republican challenger Julie Lewis, a leader of the Joint Landowners Coalition of New York. Lupardo, a proponent of more thorough, regulation, study and health reviews, is advocating a “wait and see” approach to shale gas development, while Lewis is a “drill here drill now” advocate.

New York State Senate 52nd District: Tom Libous, Deputy Majority Leader, is a drilling supporter. Working with Majority Leader Dean Skelos, Libous has held a key position in ensuring that anti-fracking measures don’t gain traction in the Senate. If he is defeated, or if his party loses control of the Senate, the state is more likely to pass legislation that will ban or delay fracking. Democratic challenger John Orzel has criticized Libous for being too cozy with the industry, although Orzel has not taken a position for or against fracking.

U.S. 22nd Congressional District: This newly redrawn district is one of three districts that sit over potentially productive parts of the Marcellus Shale (including Broom and Tioga Counties). Dan Lamb, a Democrat and former aid to retiring U.S. Rep. Maurice Hinchey, is against fracking. Richard Hanna, a Republican incumbent, is open to it, although it has been a lower profile issue for Hanna than for Lamb.

U.S. 23rd Congressional District: Pro-drilling incumbent Tom Reed, a Republican from Corning, is facing Democratic challenger Nate Shinagawa in the race for a district that stretches over reserves in the south western part of the state. Reed is for fracking. Shinagawa is against it.

Broome County Executive: Broome County -- a hot spot for prospective development of both the Marcellus and Utica Shales, as well as for build out of regional and interstate pipelines -- is heavily staked to the outcome of New York’s shale gas policy. Incumbent Republican Debbie Preston supports development, while challenger Tarik Abdelazim, a Democrat, feels fracking is unsafe without considerable policy reforms.

Candidates endorsed by fracking opponents can be found at the New York Residents Against Drilling website. Those endorsed by drilling supporters can be found at the Joint Landowners Coalition of New York website

Friday, November 2, 2012

“Friends of court” hope to sway NY Home Rule case

Early next year, lawyers representing two municipalities, a drilling company, and a landowner will argue a case in the New York’s Appellate Division that will broadly influence shale gas development in the Empire State. The case is a collective appeal of two separate lower court decisions that upheld the authority of local governments to ban drilling over the state’s authority to permit it: Norse Energy v. the Town of Dryden and Cooperstown Holstein (a corporate landowner) v. the Town of Middlefield.

On the surface, it seems a simple matter. Do local zoning laws apply to state-regulated drilling? But as soon as you begin to break it down, it gets complicated. The question embodies critical Constitutional principles: The extent government can control private land use, and people’s rights to seek government protection from harm inflicted by another party. The issues are sticky because the answers have long been defined by ideological boundaries. Can parties who oppose the federal government’s involvement in regulating affairs of the state fairly support the state’s exclusive control of drilling in self-governing local jurisdictions, for example? How are individual rights best preserved while serving the greater public good?

In New York, as in most states, state officials permit petroleum wells through a generic process based on industry’s needs, without regard to the character, planning, and land-use preferences of local communities. Because, drilling -- a minor part of the New York’s large and diverse economy – has never progressed much beyond remote and comparatively limited areas, the state’s generic style of permitting has never been challenged...

Until now. The scale and logistics of shale gas development are entirely different from conventional drilling, and they are raising correspondingly monumental jurisdictional questions in towns sitting over some of the world’s most promising carbon reserves. If President Barack Obama and his challenger, Mitt Romney, are as keen on tapping domestic reserves as they appeared to be in their recent debate, your home town, and many others throughout the country that sit over black shale, may become a global petroleum producer, for better or worse.

The prospect of widespread and intensive unconventional drilling operations by outside companies has some local town boards fearing an assault on the characters of their communities, while the sums of money on the line and the promise of jobs and cheap energy have industry supporters fearing local bans that could interfere with full-scale development. And that’s why the Dryden and Middlefield cases have come to represent something much more than zoning issues affecting particular communities. (Details on the cases and links to decisions and appeals can be FOUND HERE).

To help the court weigh the case and the far reaching ramifications of its eventual decision, attorneys on both sides are sheduled to file briefs next week on behalf of at least 64 interested parties – (known in legal terms as amici curiae or “friends of the court”). The parties include more than 50 towns and villages within New York state, and a host of organizations representing planners, mayors, businesses, landowners, farmers, and industry. In general, the business groups and industry are against recognizing Home Rule authority over shale gas development. That’s because effective shale gas development, according to industry supporters, needs regulatory predictability and uniformity to control large contiguous land tracts in a way that encourages the most cost effective and complete placement and build-out of drilling rigs and infrastructure. This can run counter to planning goals of towns and villages making land use decisions based on local standards, political preferences, and community character.

Industry attorney Tom West said he expects “considerable amicus support for both sides” which should send “the right message to the Appellate Division that these cases are very important to the future of oil and gas development in New York State.” Attorney Deborah Goldberg, representing towns seeking to preserve the application of Home Rule to shale gas development, agreed that the number and range of parties listed in amici briefs “shows the significance the decision will have on a wide range of interests.” According to John Henry, an attorney who filed briefs on behalf of parties that support Home Rule, his clients are fighting for something that transcends the fracking debate: “They are not taking sides for or against fracking,” he said. “All they want to do is make sure that Home Rule prevails.”

It’s hard to discount partisan interest over the outcome of shale gas development from all parties filing briefs. The American Petroleum Institute, the Independent Oil & Gas Association, and parties advocating exclusive control of shale gas development through the state have interests and positions diametrically opposed to those of the City of Ithaca and other municipalities with large and active citizenry backing the anti-fracking movement.

West anticipates the case – before an intermediate appellate court -- will be heard in February, with a decision 6 to 8 weeks after the oral argument. But there is the possibility that the case may continue on after that. The loser can seek an appeal before New York’s highest court, the New York Court of Appeals.

Parties in support of lower court decision upholding Home Rule drilling bans:

Town of Ulysses
City of Ithaca
City of Oneonta
Town of Alfred
Town of Ancram
Town of Camillus
Town of Carlisle
Town of Caroline
Town of Catham
Town of Claverack
Town of Copake,
Town of Danby
Town of Dewitt
Town of Elbridge
Town of Enfield
Town of Geneva
Town of Gorham
Town of Highland
Town of Ithaca
Town of Jerusalem
Town of Kirkland
Town of Lansing
Town of Livingston
Town of Lumberland,
Town of Marcellus
Town of Meredith
Town of Middlesex
Town of Middletown
Town of Milo
Town of New Hartford
Town of Mendon
Town of Otisco
Town of Otsego
Town of Owasco
Town of Potsdam
Town of Rush
Town of Sennett
Town of Skaneateles
Town of Springfield
Town of Summit
Town of Tusten
Town of Wales
Town of Westmoreland
Town of Woodstock
Village of Cayuga Heights,
Village of Dundee
Village of Freeville
Village of Honeoye Falls
Village of Prospect
Village of Saugerties,
Village of Sharon Springs
Village of Trumansburg
The Associated Towns of New York State
The New York Conference of Mayors
The New York Planning Federation

Parties seeking to overturn lower court decision on Home Rule drilling ban

American Petroleum Institute
The Chamber of Commerce of the United States
The Independent Oil and Gas Association of New York
Business Council of New York State
Clean Growth Now
National Association of Royalty Owners
The Joint Landowners Coalition of New York
The New York Farm Bureau