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.


  1. Tom, one of the most clear and concise sentences I've ever read:

    "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."

    My take away is that the entire industry of fracking shale for gas recovery is based on obfuscation and muddling environmental impact accountability. The SGEIS was written by a whole host of authors - some in the business of well field operations and maintenance (URS), while others are straddling both authorship and review (E&E) through a former employee and current president of New York State Energy Research and Development Authority, Francis Murray. The O&G developers corporations and investors are like a house of mirrors, with much of the money coming from overseas. And indemnified to some extent from liability for environmental impact. A good example of this is that ExxonMobil is lagging in shale gas development in the US, while leading development in other countries. Its not because of geology.

    Guidelines are simply that - guidelines or suggestions. Regulations, as cumbersome as they can be, are what keeps people safe, healthy and alive. And provide a method for environmental mitigation and remediation cost recovery.

  2. Thanks for this Tom. I find your reports tend to have a high degree of accuracy, so I (and many others) come here looking for the lowdown...

    I will tell you the listservs have been buzzing on this last few days... seems to be a lot of confusion about a few points. I won't reiterate them here, because after studying this all day, I believe the facts you have here are correct.

    Help me understand this: What Emily Desantis doesn't seem to make sense to me if we're talking about SAPA/Regs. Why file for an extension on the Regs (which is not really connected to the SGEIS) to allow Dr. Shah's panel to review the health impacts -- which IS part of the SGEIS?

    Or does the SGEIS drive the Regs?
    (No SGEIS, No regs)

    Thanks for your work, Tom.

  3. The EIS drives the Regs. Usually, SAPA is applied after the EIS. In this instance, they ran rulemaking concurrently with the last round of EIS review. Technically there is nothing that prevents this, but some advocates are saying this violates the spirit of the process. Gas proponents say the issues have been fairly aired. So as with everything, there is much left to interpretation and I imagine that more than a few lawyers and administrators are busy with this.