Monday, December 17, 2012

‘30-days of fracking regs’ deconstructs New York policy NY, Pa differ in assessing blame when things go wrong

For those reflecting on the prospects of shale gas development in New York State, Governor Andrew Cuomo and his staff have this holiday message for you:

See: High Volume Hydraulic Fracturing Proposed Regulations 6 NYCRR, Parts 52, 190, 550-556, 560, and 750.

Happy New Year!

Last week, a 30-day countdown began toward the Jan. 11 deadline for public-comment on New York’s draft regulations to oversee shale gas development. The timing of the process drew complaints from activists that the Cuomo administration is railroading the regs under cover of holiday bustle and without meaningful context. Still missing is a full accounting of environmental and health considerations in a document yet to be released in final form. This document, called the Supplemental Generic Environmental Impact Statement (SGEIS), is designed to provide the foundation on which the regulations are based.

The regulatory package in question is intended to provide rules to settle key questions. How close can a well bore be drilled to a water supply or dwelling, and how is accountability assessed when things go wrong?

Anti-fracking activist Sandra Steingraber has offered to help those finding it difficult to squeeze in this extra fracking homework amid the holiday rush. She has produced “30-days of fracking regs,” an exercise she described as a “fun-yet-deadly-serious approach to commenting” on New York’s policy prior to the Jan. 11 deadline. Steingraber – an author and ecology professor at Ithaca College – uses this Advent-calendar approach in an attempt to demystifying issues such as set-backs, well construction specifications, spacing requirements, and abandonment policy. As an example, I have opened Steingraber’s Dec. 13th advent box: NYCRR Subchapter B, Part 560, Operations Associated with High-Volume Hydraulic Fracturing, Section 560.4, Setbacks. In the interest of balancing Steingraber’s informed but one-sided analysis, I have also asked experts in the pro-fracking camp to comment. In this post, Terry Engelder, a geologist at Penn State University who specializes in shale formations, provides a counterweight.

Here is Steingraber’s Dec. 13th assessment:

Today, day 2 of the regs comment calendar, falls in the second week of Advent. In the Christian calendar, Advent is a season of waiting, alertness, and reflection on the myriad injustices of the Roman occupation. In that spirit, and continuing yesterday's focus on setbacks, let's reflect on the proposed allowable distances between fracking wells and our drinking water. Take a close look at Section 560.4(a)(1 and 3-5):

Section 560, subdivision 560.4 -- Setbacks

(a) No well pad or portion of a well pad may be located:
(1) within 500 feet from a residential water well, domestic supply spring or water well or spring used as a water supply for livestock or crops;
(2) within 500 feet from an inhabited dwelling or place of assembly;
(3) within a primary aquifer and a 500-foot buffer from the boundary of a primary aquifer
(4) within a 100-year floodplain; and
(5) within 2,000 feet of any public water supply municipal or otherwise, or the boundaries of any public water supply reservoir, natural lake or man-made impoundment (except engineered impoundments constructed for fresh water storage associated with fracturing operations).

Primary aquifers are underground pools of water that supply drinking water to major municipalities. There are 18 of them in our state. Principal aquifers, by contrast, provide drinking water to smaller communities and to families with private wells. Note that setback protections for principal aquifers do not exist at all. Thus, people living in large municipalities are afforded more protection than citizens in rural communities. Also, setbacks apply only to the well pads on the surface, not to the underground wellbores: horizontal drilling underneath both kinds of aquifers is allowed. Drilling under lakes and rivers is also allowed. No consideration is given to natural faults in the bedrock, which can act as pathways for the migration of methane and other chemicals.

One peer-reviewed study found elevated levels of methane in drinking water wells that were located up to a kilometer away from a gas well. The regs do not require monitoring wells. (Mandated for other industries, a monitoring well is used to obtain samples of groundwater to periodically test for the presence of pollutants.) Thus, New Yorkers who rely on groundwater - and there are nearly five million of us - would only know we have a problem when we develop rashes after showering or discover that our tap water is flammable. In essence, under these regulations, the kitchen faucets of homeowners would serve as monitoring wells for the gas industry. And last: as recent weather patterns show us, the 100-year-floods that define 100-year floodplains are now arriving with much greater frequency than once per century.
Engelder offers a response to the question of setbacks in the context of Pennsylvania laws developed with recommendations by an advisory committee set up by Governor Tom Corbett:

The Commission recognized that there will always be some inherent risk to gas drilling regardless of the setback distance. Because setbacks are arbitrary, the Commission felt that a greatly expanded radius of liability was appropriate when it came to exploitation of Marcellus gas. [‘Radius of liability’ is the area within a given distance of a gas well where drillers must accept accountability for problems unless they can prove otherwise.]

Engelder explained that Corbett’ administration passed laws that increased the minimum setback from a private water well from 200 feet to 500 feet, and from a public water supply (water well, surface water intake or reservoir) to 1,000 feet, unless waived in writing by the water works administrator. Moreover, the laws also expanded an operator’s “presumed liability” for water pollution to within 2,500 feet of a gas well. Previously, the distance was 1,000 feet. In other words, when water wells suddenly go bad within 2,500 feet of an oil and gas drilling or fracking operation, the burden falls to operators to prove that drilling did not cause the problem, rather than to the homeowner to prove that drillers did it. The time frame for “presumed liability” on drilling companies was increased from 6 months to 12 months of completion or alteration of the well. He expains:

Even in rural portions of Pennsylvania, the Commission recognized that increasing setback distances beyond, say, 500 feet could potentially limit resource recovery. Because the true risk can never be known ahead of time, any setback distance is arbitrary. So, rather than greatly limit or even stop resource recovery because of some perceived risk, the Commission greatly expanded the explicit presumption of liability.

Now, the State presumes operator liability if anything goes wrong with, for example, private water wells within an area that covers the better fraction of a square mile centered on a well pad. Assuming that the full development of the Marcellus requires about one well pad per square mile, this means that presumed liability may extend over virtually all surface area under which the Marcellus is to be extracted in Pennsylvania. In other words, the Commission resolved the contentious issue of expanding setbacks because of some perceived risk in favor of placing the onus of liability on industry through an expanded radius of presumed liability should something unpredictable happen that adversely affected public health and safety.

The Commission recognized that problems were greatest in the top 500-1000 feet penetrated by the vertical portion of Marcellus well. This is the zone of fresh drinking water. The Commission also recognized the geological factors reduced the risk from horizontal portions of wells to near zero, with the exception of encountering abandoned wells. Because the risk of encountering abandoned wells is not zero, the operators are developing protocols for dealing with this situation in a way that assures public safety. The expanded radius of presumed liability covers situations in which unknown, abandoned wells are caused to flow by stimulation of horizontal wells.

Tied to the issue of presumed liability is baseline testing. That is, testing to assess ground water conditions before, during, and after drilling. Shifting the burden of proof onto operators in Pennsylvania encourages them to thoroughly document water quality data throughout the process as a defense against claims.

The New York regulations do not by default hold gas drillers responsible for problems within set distances to wells. But they would require baseline testing of aquifers within 1,000 feet. If there are no private water wells within 1,000 feet, they require baseline testing up to 2,000 feet. The thinking here is that data sets collected under the state’s protocol will provide proof of guilt or innocence of charges of water pollution.

The regulations regarding set backs and testing involve just a few pages of a regulatory process that takes up volumes in New York alone. They deal with questions about air pollution, public land use, record keeping protocol, spacing, waste management, disclosure requirements, and many other issues. I have asked other stakeholders to highlight points that they see as critical, and I hope to return to the issue in future posts.

In the meantime, Happy Holidays, and happy reading.


  1. Professor Engelder says that setbacks are "arbitrary." That would indeed seem to be the case in New York, where there has been little or no scientific justification for the proposed setbacks. Setbacks may BE arbitrary, but that doesn't mean that they SHOULD be arbitrary. They should be based on solid science, not on guesswork.

    I recently had the surreal experience of trying to explain to NY state, in one of my comments on the proposed regulations, why it might not be a great idea to drill, frack, and then vent or flare a well that is just 500 feet from someone's home. I noted that if the vent stack is 30 feet high and there is a two-story home just 500 feet away from the gas well and downwind of the gas well, whatever is coming out of the vent stack is likely to blow right into the windows of the upper story of the home. I said that if NY is going to engage in the questionable practice of allowing venting and flaring of gas wells (which is the case for wells that are not near pipelines), they should at least require a site-specific analysis to determine reasonably safe setbacks for individual locations using factors such as the distance to nearby homes, the local terrain, and the likely weather conditions (e.g. prevailing winds, possibility of inversions, etc.)

    By the time I completed the comment I felt as if I had been trying to carefully explain to a three-year-old a set of facts that any adult would grasp immediately. I'm not being sarcastic--that's exactly how it felt. What have we come to when we have to explain to the officials who are supposed to be protecting our health and our property that it is probably not a great idea to flare a gas well right next to a home or homes? This isn't shale country: it's the Twilight Zone made real.

  2. Re baseline testing: How much good will the baseline data really do? The pattern in other areas has been for the industry to deny any responsibility for contamination. If the data indicate a change, the gas industry will say that the change is due to natural processes, or that the lab made a mistake, or that some other industry is to blame. And what if there is more than one gas company operating in the area? Each company is going to point its finger at another company. I foresee a lot of work for lawyers.

    Also, the 1000-foot radius for baseline testing is a good example of an arbitrary number that is not based in science. The Duke study found evidence of methane contamination at 3000 feet, so why has NY set the radius at just 1000 feet?

  3. yes, Mary , I have felt and stated that what is happening here in Pa. and in our county of Susquehanna is the Twilight Zone --- and as you put it -- "Twilight Zone made real."

    The arbitrary setbacks and the area of presumed liability need to be lengthened beyond even 6,000 feet since we now have areas contaminated within a mile or more.

  4. Hi Vera. As you point out, damage can extend well beyond 2500 feet. It seems to me that there's a certain amount of slipperiness in Dr. Engelder's comment that: "Assuming that the full development of the Marcellus requires about one well pad per square mile, this means that presumed liability may extend over virtually all surface area under which the Marcellus is to be extracted in Pennsylvania." For one thing, before "full development" has occurred, a family could find that its water well has been gassed even though there is no gas well within 2500 feet, in which case, the family is going to have to hire a lawyer and try to recover damages in court. It also seems to me that after "full development" has occurred, unless there is only one gas company operating within the area, it may be difficult to tell which company should be held responsible for damages.

    I apologize to everyone for posting so much here within such a short span of time, but the reason I got back online (before I saw Vera's comment) was to say that I cannot stop thinking about the following paragraph of Dr. Engelder's reply:

    "Even in rural portions of Pennsylvania, the Commission recognized that increasing setback distances beyond, say, 500 feet could potentially limit resource recovery. Because the true risk can never be known ahead of time, any setback distance is arbitrary. So, rather than greatly limit or even stop resource recovery because of some perceived risk, the Commission greatly expanded the explicit presumption of liability."

    One would think that Dr. Engelder were talking about damage to fence posts or lawns or some such thing. But the "liability" in this case includes liability for damage not just to property, but to human health! Even IF the gas industry is held liable for damaging someone's health, how much does that help the people who are harmed? If you're sick, it's nice to have money to pay the medical bills, but that doesn't turn back the clock and prevent the illness. And if anyone is killed by industry negligence, then there is obviously no way to undo that!

    The gas industry is faced with this very inconvenient fact: there are a LOT of people living above the Marcellus and Utica Shales. Trying to pretend that shale gas extraction is not dangerous when it really is dangerous is not going to prevent damage to property and injury to human beings. If "resource recovery" has become more important than human rights, then this country has some very serious problems that go far beyond the problems presented by energy policy.

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  6. Let us please ask Mr. Engelder,
    "Sir, if one is sufficiently insured against liability is it alright to run down a pedestrian?"

    Efficacy of maximum "extraction of resources" for the corporations is NOT the mandate of these regulations.