‘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?

Steingraber

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

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.