Tuesday, December 4, 2012

Reading the regs: missing pieces confound NY gas policy Some happier than others with signals from Albany

With a keystone policy document still under wraps, stakeholders are having a hard time assessing merits and drawbacks of New York’s fracking regulations issued in draft form last week.

The missing piece is a compilation of environmental and health considerations that will be a primary tool for issuing permits under Gov. Andrew Cuomo’s administration. Those considerations are the focus of a 1,500-plus page document called the Generic Supplemental Environmental Impact Statement (SGEIS), which has been a work in progress since 2008. The document addresses health and environmental impacts of developing the Marcellus and Utica shale reserves as determined by the Department of Environmental Conservation and the Department of Health, and offers a plan to manage them. In response to concerns by activist late last year, the DEC commissioned an independent panel of health experts to review the DEC’s work in the SGEIS. With that review pending, the Cuomo administration has said it is still leaving the door open to shelve the entire process.

After two drafts, the final SGEIS is expected to be made public within a three month deadline the state now faces to finalize its regulatory package. The deadline to get rules in place, originally Nov. 29, was extended after the DEC issued a draft of the regulations last week, minus the pivotal environmental and health reviews in the SGEIS. In the meantime, as fracking critics continue to pore over the draft regulations issued last week, they are finding little to like. Industry proponents, on the other hand, see encouraging signs.

Anti-frackers lodged complaints regarding form, content and timing of the draft regulations, which they see as a reflection of haphazardness common to the entire process. A collection of elected officials, public health advocates, and environmental activists gathered in Albany Monday to call for transparency in developing policy. In particular, the group is concerned over the lack of explanation regarding how the state is assessing health risks. Joined by assemblywoman Barbara Lifton, Binghamton Mayor Matt Ryan, and ecologist and anti-fracking activist Sandra Steingraber, they called on Gov. Andrew Cuomo to make public the scope of the health review and schedule a public comment period and hearing to air testimony specifically dealing with health-related concerns.

In talking with representatives of some of the agencies in a position to legally challenge the DEC’s regulatory approach, I found this salient charge: The process is characterized by confusion, lack of transparency, and inaccessibility, and critics cite as a prime example the release of the regulations before the health and environmental assessment. While fracking opponents gathered for the Albany press conference, Deborah Goldberg, an attorney for EarthJustice, studied the draft regulations in her office in New York City. (Note Goldberg's first name has been corrected from the original version of this post.) She found problems from the start with organizational flaws that make the technically dense documents inscrutable. Because changes are not redlined, reviewers have to flip back and forth between existing regulations developed decades ago for conventional gas development, early drafts of proposed amendments for shale gas, and the current documents. Moreover, the changes could not be considered in context of the broader health and environmental reviews that remain unfinished. This has made the process unnecessarily cumbersome for professional and citizen reviewers who face a 30-day deadline to comment.

“It’s extremely unhelpful to issue these to the public with no references or context and with a compressed public comment period over the holidays,” Goldberg said. “You would think you would make this as easy as possible, but they’re asking us to critique the regs without key components made public, and rushing the entire process.”

The regulations deal with the how of shale gas development, from spacing units to containment measures to setbacks. They inform, for example, that pads and discharges are not allowed within 500 feet of a primary aquifer or within 2000 feet of primary municipal water supplies. But they don’t address the qualitative issues – purportedly addressed in the SGEIS -- that have been at the center of the fracking debate. What will the cumulative impacts be? What rights do local governments have? How can this affect public health” And who will bare the cost of enforcement?

Some representatives of environmental agencies told me they were disappointed that the new regs apparently did little to sanction environmental safeguards expressed by DEC staff members during meetings earlier this year. The safeguards include green completion -- a process to minimize pressurized releases of methane and other pollution by banning development of wells before infrastructure is in place to capture, contain and transport gas; and wells to monitor ground water conditions around gas operations. It was unclear whether these types of safeguards would be detailed in the SGEIS and stipulated under permitting conditions.

“It’s bizarre that we are being asked to comment on something without seeing the compendium of its meaning,” said Roger Downs, executive director of the Atlantic Chapter of the Sierra Club.

Not everybody was unhappy about the regs, however. Drilling proponents were encouraged that the DEC met the deadline to allow the process to move forward rather than expire. Gas drilling proponents have pointed to the four-and-a-half year review process, with multiple comment periods and hearings reflected in previous drafts of the SGEIS, as a sufficient effort to publically air concerns and develop policy. Proponents feel that, by meeting the deadline last week, the agency continues a good faith effort to allow the review to proceed.

“They kept the regulations alive, which was a surprise,” said Tom West, an industry lawyer. “It’s a light at the end of the tunnel. It’s good to see we are nearing the end.” West added that drilling proponents had reservations of a different sort. Specifically, he found rules that ban drilling in watersheds that feed New York City, Syracuse and other major aquifers to be too restrictive. “It raises questions about access to the resource,” he said.

If regulations are completed in three months, West estimated that it may take a half a year or more after that for permits to work their way through the new regulatory system.

Assuming the other pieces fall in place before the 90-day extension for the draft regs expires, and assuming the governor then gives a green light to permitting, there are several wild cards that cannot be accounted for, including possible legislative initiatives and legal challenges that could still delay or derail the process.


  1. From Tom's post above:
    "They inform, for example, that pads and discharges are not allowed within 500 feet of a primary aquifer or within 2000 feet of primary municipal water supplies."

    ...which cited the following regs: "750-3.10 Denial, Suspension or Revocation of HVHF SPDES permits"

    Here's my problem with the SGEIS - there's little clarity. I'm assuming, for example that a pad or operations discharge can't be within 500 feet of a primary aquifer - meaning depth?? - since an aquifer is planer in geometry with respect to the ground surface.

    I still believe the fly in the ointment is subsurface discharge associated with vertical or rogue fractures. Since the SGEIS entails the entire "operation" - should gas or liquids migrate away from the fracture zone (as apposed to well collection) - impacting the air, groundwater or surface water - it would be - by discharge definition - non-compliant. The discharge point of a rogue fracture could easily be within 500 feet of an aquifer given the shallow production depths of the NYS Marcellus. The Utica is probably a different story - however, the interest is mostly in liquids.

    Put the onus on the NYS-DEC to demonstrate this - since they already are doing policy and preparatory work for operators.

    Anyway, great work Tom.

  2. Thanks for raising this point, Michael. The drilling industry in general is very unlike manufacturing operations that occur above the ground in a fixed point. In addition to considerations about surface use, you have all this activity underground that impossible to observe directly. Additionally, you have substances such as methane, arsenic, chlorides, metals, NORM etc. that might not technically be injected into the ground or “discharged” by the operators, but are still moving around as a result of drilling. It’s possible to gauge all this indirectly with modeling and analysis, but to applying those tools comprehensively is something else.

    The precision of the regs is critical. Without exacting regs, definitions, baselines, and reference points that will guide enforcement will be a matter of interpretation. In this, the regs are supposed to go beyond the permitting guidelines in the GEIS that leave much up to the discretion of permitting officials

  3. As those who have read my previous comments probably know, I'm opposed to shale gas extraction: I do not think it can be done with a reasonable measure of safety using current technology. However, I also think that anyone who is in favor of shale gas extraction--and especially anyone who intends to live in the midst of shale gas extraction operations--should be very much in favor of a careful, reasoned, transparent, and prudent regulatory process. And so far, the regulatory process in New York has not been careful, reasoned, transparent, or prudent.

    To take just one example, after more than four years of this process, NY has evidently decided that instead of having a ludicrous 100-foot setback from homes, there should be a somewhat less ludicrous 500-foot setback. Even this small change would probably not have occurred had the public not asked, over and over again, for larger setbacks. Who in their right mind believes that a 100-foot setback would be adequate? Why did it take the DEC more than four years to attempt to address this issue and why have they still not addressed it in any sort of rational manner (where is the science supporting the proposed 500-foot setback)? When the DEC acts like this, they do not inspire confidence, and we are being asked, literally, to put our health, our property--even our lives--in the DEC's hands.

    Shale gas extraction is an extremely complex issue with many, many aspects to consider, and anyone who thinks that all of those aspects can be properly considered in a short time is dreaming. As Michael and Tom have pointed out, it is extremely important to write precise, comprehensive, clear regulations. It's difficult to be precise, comprehensive, and clear when you're rushing. If/when permits are issued, the devil will be in the details. If NY residents want to reduce the chances that the gas industry will ruin their property or their lives, then they need solid regulations in place, the regulations need to have teeth, and the DEC needs to be a reliable organization with sufficient funding to enforce the regulations. Right now, in my opinion, we don't have any of that.

    I think NY has added to the frustration of drilling proponents by repeatedly acting as if it was almost prepared to issue drilling permits, when in fact it had shortchanged or skipped many of the necessary steps in a prudent process of preparation. From the start, NY should have admitted that the development of permitting guidelines and regulations would be a lengthy process. Given how much gas extraction technology has changed in recent years, the DEC should have written a separate GEIS for shale gas extraction (as opposed to a supplementary GEIS). It should not have rushed out a revised SGEIS when it had not even digested or responded to the public comments on the first draft of the SGEIS. Regulations should not have been issued until the SGEIS was finalized. The public should not have had to beg and plead for adequate time to review lengthy, technical documents. Studies of the cumulative impacts, the health impacts, and the economic costs (as well as the benefits) should all have been included in the first draft of any environmental impact statement produced by the DEC. Instead, over and over again, the DEC has tried to rush the process, and ended up wasting some of its (and the public's) own time by producing documents that, while containing some good information, were also full of holes. Since most of this rushing has occurred while the price of gas has been quite low, it's difficult not to conclude that the rushing is more for the benefit of the gas industry than for the benefit of the people of NY state.

  4. Thanks for your thoughts. Mary.

    The following reassurances came from Brad Field, head of DEC’s Mineral Resources Division, in response to questions raised in 2008 about risks associated with shale gas development:

    “Industry has used horizontal well drilling in New York since the late 1980s. Hydraulic fracturing has been commonly and safely used in New York state for decades. Marcellus Shale fracing operations use fresh water, sand, nitrogen and a diluted soapy solution to fracture the shale. These frac [sic] fluids do not contain benzene, toluene or xylene … The industry is regulated, and the lack of contamination events is evidence that the laws and rules are effectively protecting the environment.”

    Did the agency not know the differences between conventional and unconventional development, or was trying to fool people? Whether you are for against shale gas development, this approach hurt public trust in the DEC as people found out the differences on their own. This is a theme in Under the Surface, and readers can also find more at this Shale Gas Review post: http://tomwilber.blogspot.com/2012/07/is-decs-top-regulator-too-close-to-big.html

    1. This is very interesting. I spent most of my environmental biz career as a remediation contractor rather then as an environmental consultant (IQ or inability to sit in an office, whichever is lowest OR highest I'm not sure). So it was in our interest to actually read the regulations and try to understand the craziness of individual State or Federal laws, as addenda to musings by consultants or regulators.

      Here's a scenario, as best as I can remember, of the byzantine regulatory process for groundwater remediation. Gasoline as it sits in a tank and pumps into your car is "product" so not a "waste." The subsurface impacted by spilled gasoline is a "special waste" - regardless of individual components. After dealing with the "special waste or gross product" and depending on the State or driving regulation, groundwater remediation upon gasoline impact is typically driven by individual components or euphemistically "chemicals of concern" like benzene and a bit less so by toluene, xylene(s) etc in a dissolved state. Benzene an aromatic hydrocarbon and "potential" carcinogen and component of gasoline is also a "listed" chemical. In other words, cleanup is determined upon reduction in concentration of individual components dissolved in groundwater to prescribed or "risked based" levels of specific chemicals. Prescribed could be Maximum Concentration Levels (MCLs) for drinking water. Risk Based levels could be calculated based on site specific exposure routes, e.g. groundwater being used as a primary drinking aquifer by local "receptors" (receptors are water drinkers). Now I have to breathe.

      I'm not sure if or how the gasoline scenario compares to either the injection fluid for hydraulic fracturing or hydrocarbon release from rogue fractures. My gut says there seems to have maybe been a work around at some point in time at either the federal or state levels.

    2. Interesting comparison, Michael. The primary "workaround" is exemption to the federal Safe Drinking Water Act and the Resource Conservation and Recovery Act. Those makes it illegal to discharge gasoline and its various hazrdous components into the ground, whether by accident or not, but OK for drilling fluids.

  5. Gov. Cuomo and DEC Commissioner Martens are playing a dirty political game with our clean water and air. Their eleventh hour extension of this proceeding, the posting of revised regulations with no context, a public comment period scheduled during the holiday season, and a lack of any health assessment and public comment, are all meant to impede the public's ability to provide meaningful input. They're hoping they can ram hydrofracking down everyone's throat before the people can speak. Cuomo has already reneged on his promise for New York to take the lead in dealing with climate change in the wake of Superstorm Sandy. That's got to be a new record in backtracking on a political promise.

  6. Hi. Do you mean Deborah Goldberg? I wanted to email you this question but couldn't find an address. Feel free to delete the comment.

    1. Thanks for calling that to my attention, Beth. I do mean Deborah Goldberg. I have corrected. Deborah has been a source of mine for years, so I'm not sure where I got Barbara.