Friday, September 28, 2012

BREAKING NEWS: NY fracking policy faces do-over... DEC likely to reopen rulemaking process to public

New York officials crafting policy to regulate shale gas drilling amid unanswered health concerns will likely re-open the process to public hearings, essentially guaranteeing more momentum for the movement that has effectively stalled the industry’s advancement into the Empire State for more than four years.

Emily DeSantis, a spokeswoman for the Department of Environmental Conservation, said late this afternoon that agency officials expect to begin a new rulemaking process rather than try to meet a Nov. 29 deadline to complete a regulatory overhaul. The news comes a week after DEC Commissioner Joseph Martens announced that the agency will turn part of the review over to the Department of Health Commissioner Nirav Shah to address persistent questions about how shale gas development and high volume hydraulic fracturing will affect public health in communities where it is allowed.

“Given that DEC has said no regulations or final decision will be issued until the completion of Dr. Shah's review, should high-volume hydraulic fracturing move forward, it is expected that a new rulemaking process would be undertaken,” DEC spokeswoman Emily DeSantis said. That process would include at least one public hearing although DeSantis said no timeframes had been made.

DeSantis was responding to my question about whether the DEC would meet a deadline of Nov. 29 to issue policy that would allow permitting to begin. The deadline, outlined in the State Administrative Procedures Act, mandates that new rules must be finalized within 365 days after the final public hearing, or the state must file for an extension.

The rulemaking process was folded into hearings held last year to assess the environmental impacts of shale gas development. Drafts of that report, called the Supplemental Environmental Impact Statement (SGEIS), have undergone several revisions amid intense public criticism. Since the review began in the summer of 2008, more than 80,000 comments have been submitted.

Technically, the rulemaking process, which will produce regulations to govern shale gas development, is different from the SGEIS, designed as a guideline for permitting. While permitting conditions are ultimately left up to the discretion of DEC officials, regulations are set in black and white, and therefore carry more clout for enforcement.

While the SGEIS has been evolving since 2008 along with the state’s position on shale gas, the rulemaking process began only last year. The public hearings held for the SGEIS also applied to the rulemaking process, which made it subject to the SAPA deadline.

Update added 10:35 p.m.

Attorneys from environmental groups pushing for a more comprehensive review of health impacts were encouraged by the latest indication that the DEC will not begin permitting wells before more vetting and evaluation of concerns. Industry representative, meanwhile, were hopeful that the process would not cause long delays.

Deborah Goldberg, an attorney with Earthjustice, said news that the DEC was considering a new rule making process was “hugely important” to the overall debate. Because of the focus on the environmental review, “the rulemaking didn’t get the attention it needed,” she said. Ideally, she added, the state wouldn’t restart the rulemaking process until the SGIES had been finalized. “Then the public would have the benefit of DEC’s environmental analysis before it offers comment on the regulations designed to prevent and mitigate impacts. DEC would know what should be put into regulations and might save itself some litigation.”

Kate Sinding, a senior attorney with the NRDC, had a similar response. “This is reassuring, suggesting that DOH is not going to rush its review… This also provides the opportunity for the agencies to solicit the input of concerned stakeholders in the particular context of health impacts.”

Both NRDC and Earthjustice are among well-heeled environmental agencies that have taken up the policy debate over fracking in New York as signature environmental campaigns with national ramifications. The issue of fracking and renewed interest in onshore drilling in general have raised the profile of domestic energy use and production, along with unanswered questions about air and water pollution, and skepticism related to industry’s exemptions from federal clean water and clean air regulation and hazardous waste disposal laws. Fracking has enabled large scale energy extraction in places where it has never traditionally occurred. Even in Texas, the Fort Worth area is experiencing drilling-related tensions as the build out of the industry encompasses urban settings.

Martens has left no doubt that his DEC is working under the threat of lawsuits. The health department review was a recently-added component, in part “to ensure the strongest possible legal position for the Department given the near certainty of litigation,” Martens said in a statement last week.

The process will not get any easier. If the debate is reopened for public hearings, the state would be required again to formally respond to comments – an exhaustive process that has previously overwhelmed DEC staff due to the sheer number of responses. Public hearings have also been draws for activists with placards, props, and enthusiasm befitting pep rallies and political conventions.

Given the health and environmental stakes, Goldberg and Sinding are encouraged. “Democracy takes time – and that’s a good thing,” Goldberg said. “The more careful we are, the more information we have, the better chance we have to protect our air, water, and quality of life.”

Several Industry representatives expressed varying degrees of confidence that the process would not be delayed much longer. “The failure to complete the rule-making in a time or starting a new one should not be an impediment to moving forward in New York if and when—hopefully sometime in my lifetime—they finally finish the process,” industry attorney Tom West told GNS reporter Jon Campell today.

The news didn't shake the faith of New York State Petroleum Council Executive Director Karen Moreau that the Cuomo administration was competently handling the review. “Certainly any hint at delay is something that doesn’t help the state’s economic picture, but as far as whether or not this is going to affect the ultimate outcome, I can’t say that,” Moreau told Campbell. “We feel very confident that the process is going to unfold as it should, the health review will be done and a determination will be made at that point.”

On a final note, the policy decisions and industry reaction must be considered in the context of a glut in the natural gas market that has reduced prices, lowered the amounts of lease payments and royalties to landowners, and eased political pressure to move quickly in New York. Natural gas prices move in cycles with demand, so that could change.

Thursday, September 27, 2012

November 29 deadline looms for final NY fracking policy Cuomo administration may file for 90-day extension

While Governor Andrew Cuomo refuses to say when or whether New York will begin permitting shale gas wells, the answer lies in a little-known fact: his administration faces a Nov. 29 legal deadline to finalize a decision.

An obscure provision of a technically-dense law provides the most concrete clues about when the public can expect Shale Gas policy in New York. The law is called the State Administrative Procedures Act (SAPA). Several lawyers have called my attention to Section 202, which spells out how administrative agencies are required to go about rulemaking. Specifically, the provision states that regulations have to be finalized one year from the last public hearing on the issue under review unless an extension is filed.

It’s a fact that has gained little attention beyond the circle of lawyers who have been following the issue closely as they develop strategy in support or against fracking in New York.

Helen Slottje, an attorney with the Community Environmental Defense Council, told me she is expecting the policy to be released on or about Nov. 29. This is precisely one year from the date of the last public hearing on the state’s review of fracking policy and, in Slottje’s view, a politically opportune time to release a controversial policy decision, because it’s “a time when most people have a ton of other things to do, the elections are over, and the legislature is not in session.”

The DEC also has the option of filing for a 90-day extension. That would make the deadline March 1, or thereabouts.

The DEC began its formal review of shale gas policy under the David Paterson administration in summer of 2008 through a document called the Supplemental Generic Environmental Impact Statement (or SGEIS). Originally, the SGEIS was a vehicle to update permitting guidelines for shale gas wells and an amendment to regulations dating to 1992 governing conventional well development. But Cuomo’s administration, wary of legal challenges to derail the shale gas industry’s advancement into New York, began a formal rulemaking process – folded into the environmental review -- to update regulations. Public hearings scheduled for the SGEIS also satisfied the requirements for the rulemaking process, thereby subjecting the entire policy package to the SAPA deadline. If the DEC misses the Nov. 29 deadline without filing an extension, the agency could face a do-over of the review --- including the public hearings that have produced more than 80,000 public comments and critiques that have already delayed the process for years.

The scope of the review was originally environmental, but health advocates have also gotten involved by posing questions about the short and long-term impact on public health from all aspects of shale gas development – not just fracking. Fear of law suits is thematic in the agency’s response. Last week, DEC Commissioner Joseph Martens announced that, because of those questions, the policy proposal will now be evaluated by the Health Department, which will assemble an independent panel, to “ensure the strongest possible legal position for the Department given the near certainty of litigation, whether the Department permits hydrofracking or not.”

Several lawyers questioned whether the state can complete the health review with due diligence before the Nov. 29 deadline.

“They have, of course, been clear that they won’t issue the final regulations until the health review is complete,” said Kate Sinding, a senior attorney for the National Resources Defense Council – one of the agencies that pushed for the health review. “Whether they try to shoehorn that in between now and November 29th … or opt to extend the deadline by 90 days, which they can legally do, we don’t know.” She doubted the agency could make the Nov. 29th deadline while acting in good faith to complete the health review. “It seems unlikely that they could do what needs to be done to accomplish the objectives of a real Health Impact Assessment in such an abbreviated timeframe.”

Tom West, a lawyer and lobbyist who represents the industry, said he didn’t expect the review to be complete before the first of the year. In that case, West said the agency “can let it (the rulemaking application) lapse, republish with a 30 day public comment period that gets them a 90 day extension, or re-propose the rulemaking if there have been substantive changes, which effectively starts the process over.”

Chris Denton, a lease attorney in Elmira, predicted the policy review was drawing to a close after more than four years. Denton said he believes the Cuomo administration has quietly factored the Nov. 29 deadline into its overall strategy. “Cuomo’s not going to miss this deadline,” Denton said. “It sends the wrong message.”

While the pending policy package is a central component to a tactical fight to delay or expedite shale gas development in New York, there are other factors. The price of gas has fallen with a market glut. With that, political pressure has eased along with the pace of aggressive prospecting, exploration, and lucrative lease offers that marked the 2008 land rush.

Cuomo also faces the uncertainty of whether Democrats, who have generally opposed a rush to begin permitting gas wells in favor of more study, will control the Legislature after elections, or whether it will remain split. The anti-fracking movement has been keeping pressure high by effectively challenging the credibility of the DEC, and specifically the agency’s claim that it has a spotless record regulating the gas industry. This week, Walter Hang brought to light more records of spills and abandonment – ample evidence, he says, that the DEC is ill-equipped to handle conventional shale gas development, much less the more intense and wide-spread operations of a shale gas play and the legacy it may leave the next generation.

As president of a data base firm called Toxic Targeting and formerly a community organizer with New York Public Interest Research Group, Hang is a long-time government watchdog and industry antagonist. The story with his relationship with the DEC is told in Under the Surface, and this week’s developments are a continuation of that battle. Hang’s company tracks corporate pollution through government records, and this week he released annual reports and other information that show 4,800 known abandoned wells, and a like number yet to be discovered in woods, backyards, playgrounds and under buildings. Unplugged or improperly plugged wells can cause explosions and risks to water supplies by providing a pathway for methane to move into enclosed spaces and for hydrocarbons and other toxic pollutants to migrate into the water table.

The problem is obscured by lack of reporting requirements and enforcement. When claims of water contamination are reported, the DEC Mineral Resources Division, the lead investigative agency, often leaves it up to the industry to settle with property owners who face a high burden of proof and experienced industry legal teams. Claims of liability from explosions face the same problem. Some of these cases were picked up by local health officials frustrated with the DEC’s denial of problems. As previously reported in this blog and in Under the Surface, William T. Boria, a water resources specialist at the Chautauqua County Health Department, tracked more than 140 complaints related to water pollution or gas migration associated with a boom in nearby conventional drilling operations (prior to shale gas development). In a 2004 memo summarizing the issue, he concluded “Those complaints that were recorded are probably just a fraction of the actual problems that occurred.” County health officials tabulated information on 53 of the cases from 1983 to 2008 on a spreadsheet, including methane migration, brine pollution, and at least one in which a home had to be evacuated after the water well exploded. “A representative I spoke with from the Division of Minerals [of the DEC] insists that the potential for drinking water contamination by oil and gas drilling is almost non-existent,” Boria wrote in his memo to a party whose name was redacted. “However, this department has investigated numerous complaints of potential contamination problems resulting from oil and gas drilling.” (Pennsylvania has similar problems. According to a briefing by the Department of Environmental Protection to Pennsylvania state’s Oil and Gas Technical Advisory Board, a group of state government–appointed industry representatives that advises the agency on technical and policy matters, methane migration from gas drilling, had “caused or contributed to” at least six explosions that killed four people and injured three others over the course of the decade preceding full-scale Marcellus development. The threat of explosions had forced 20 families from their homes, sometimes for months. At least 25 other families have had to deal with the shut-off of utility service or the installation of venting systems in their homes. At least 60 water wells -- including three municipal supplies-- had been contaminated.)

In addition to the orphan wells in New York, Hang most recently uncovered agency documentation that showed vegetation killed by leaking waste pits, brine leaking from rusted storage tanks, and crude oil contaminating residential wells and streams.

“Governor Cuomo can talk all he wants about good science,” Hang said. “This data shows that the DEC does not enforce the law.”

Questions persist whether the agency has the manpower to enforce regulations once they are drafted. In 2010, DEC Commissioner Peter Grannis was fired by Larry Schwartz, Paterson’s secretary (and now Cuomo’s secretary) after a memo by Grannis was leaked that suggested the DEC, decimated by cuts, would lack the ability to effectively regulate.

Monday, September 24, 2012

Brain power to explore science of fracking at Cornell U

We’ve heard it many times: Let the science decide whether fracking is safe. This is a knee-jerk rhetorical response to a deeper question that is not so clear: Do the benefits of fracking outweigh risks? There are various ways to quantify and analyze this problem, and they all start on subjective ground of postulates, definitions, and hypotheses. One primary supposition is that natural gas burns cleaner than coal.

Andrew Revkin, an accomplished science writer who specializes in climate change, has been studying this from all angles, and today he will pull apart some of the complexity in a talk streamed from Cornell University. (CHECK HERE FOR LINK TO STREAM.) It’s an appropriate venue. Cornell is in the thick of the fracking debate, with faculty members who have published papers both in support and against the argument that natural gas is a desirable alternative to coal. Principals in this controversy include Lawrence M. Cathles, a professor of geological sciences (for), and Robert Howarth, an ecosystems scientist (against). Each academician has a cast of supporters and detractors.

Revkin, an author and senior fellow at Pace University, writes for the New York Times Dot Earth. Assessing emissions is one of many aspects of the fracking debate that he has been following. Revkin’s talk, “Important Science in an Urgent Age,” will begin at 4:30 today as part of a program sponsored by Cornell’s Atkinson Center for a Sustainable Future.

Friday, September 21, 2012

On the road and out of the mainstream

Just returned from a busy week on the road with Under the Surface: 1,022 miles, four states, three universities, six talks, two radio shows, and a geology convention. Thanks to my hosts at University of Pittsburgh’s Graduate School of Public and International Affairs, The Social Science CafĂ© sponsored by West Virginia University’s Department of Anthropology, Kent State’s East Liverpool Campus, the Buffalo Association of Professional Geologist, WESA Essential Pittsburgh, and Susan Arbetter’s Capitol Press Room. And thanks to the faculty, students, community members, and professionals who came out to meet me, hear my talk and share your own information and views on shale gas development. There is no end to the learning in this story.

Thursday, September 20, 2012

NY fracking policy hinges on Health Department decision Evaluation on public health to come, timeline indefinite

The course of the contentious and unsettled policy debate on fracking in New York has just taken another twist. With shale gas permits on hold pending an environmental review now in its fifth year, Department of Environmental Conservation Commissioner Joseph Martens has asked the state’s health commissioner to assess whether the state has sufficiently covered the potential for health problems.

Martens cited two reasons: One has to do with health. The other is about lawyers:

Martens explained in a statement: “I want to make sure that we have done the most thorough review possible, especially when it comes to public health concerns. In addition, I want to ensure that the Department has the most legally defensible review so that when the Department issues its final determination on this matter, protracted litigation is avoided, whatever the outcome.”

New York state -- which sits over the Marcellus and Utica shale gas reserves -- has become the showcase of the national debate over the risks and merits of hydraulic fracturing and a related on-shore drilling boom. Martens and his predecessor at the DEC, Pete Grannis, have been in the thick of it. Now eyes will turn to New York State Health Commissioner Nirav Shah.

Permitting for shale gas was put on hold in the summer of 2008 so officials could better assess the environmental impact of the controversial process to extract natural gas from rock. The policy review, through a document called the Supplemental Generic Environmental Impact Statement, was expected to take a year, but it dragged on. During public hearings and sessions, the public, including industry, activists, landowners, unions, and local and national government officials, submitted more than 80,000 comments, which DEC officials must address before the document is finalized.

The scope of the review was originally environmental, but health advocates have questions regarding the short and long-term impact on public health from all aspects of shale gas development – not just fracking. Those questions, according to Martens, need to be evaluated by the Health Department to “ensure the strongest possible legal position for the Department given the near certainty of litigation, whether the Department permits hydrofracking or not.”

Regardless of the decision to frack or not to frack, the state is girding itself for lawsuits. Landowners, supported by the industry, have threatened to challenge the state if the policy prohibits them from developing their mineral rights. Others are expected to sue if they feel the policy puts their health and safety at risk. Lawsuits have already been filed on other grounds, with local municipalities challenging the state and the industry’s exclusive control over citing of wells – an issue known as Home Rule.

The decision by Governor Andrew Cuomo’s administration now puts Shah’s health department, which so far has taken a low-profile role in the state’s fracking review, in the hot seat. A diverse collection of mainstream medical and health agencies have supported the continuation of New York’s fracking moratorium until health impacts can be documented. The groups include New York State Association of County Health Officials, the American Academy of Pediatrics, the New York State Nurses Association, and the Medical Society of the State of New York. Just before Labor Day, Martens and Shah granted an audience to representatives of several influential environmental groups, including the Sierra Club, Environmental Advocates, the National Resources Defense Council, the Environmental Defense Fund, and Riverkeepers. They asked for an independent Health Impact Assessment that could potentially take into account chemical exposure risks from air and water emissions, industrial accidents, community stresses related to noise, traffic, housing, and population changes, as well as considering the resources necessary to manage them.

In his statement today, Martens made it clear that the state would be making the evaluation, not a third party as requested by the delegation of environmental groups:

I believe deferring to an outside group or entity would be an inappropriate delegation of a governmental responsibility. Government is the public's independent reviewer: that is the essence of the current process. To suggest private interests or academic experts bring more independence to the process than government is exactly wrong. Many experts in this field have an opinion – pro or con- which could influence the process. Nor could one ever be sure that there weren't potential conflicts of interest with outside consultants if they were to actually direct the outcome. It is the government's responsibility to ensure objectivity and a review directed by DEC and the Department of Health is without bias.

Update added Sept. 21, 12:15 p.m.
Not surprisingly, reaction to the news was divided.

Kate Sinding, a senior attorney for the National Resources Defense Council, was part of the group that met with Shah and Martens before Labor Day. Sinding was “cautiously happy” about Marten’s announcement, and the news that Shah would set up an independent panel to advise the agency. Sinding said she expected that stakeholders will be consulted on the makeup of the panel, which will play a critical role. “There are some leading names in the field,” she said. “We’ll have to see what Dr. Shah sets up.”

Leaders of some of the grass roots environmental groups were less happy with the decision to keep the review in Cuomo’s administrative house. Sandra Steingraber, co-founder New Yorkers Against Fracking, said the Health Department’s involvement has been lacking since the DEC’s review began in 2008, and she suspects the DOH has now been called on to “rubber stamp” the DEC’s findings. “Nothing has roused the DOH from its unconcerned slumber,” she said. “The gas-industry-entangled DEC and its silent brother, the DOH do not inspire confidence.”

Responses from the industry were also mixed. Tom West, an industry lawyer, said a health review was unnecessary, because the state would effectively regulate emissions and releases into the environment. “You don’t have a public health concern because there is no impact,” he said. Brad Gill, executive director of the Independent Oil and Gas Association of New York, said the agency supports the commissioner’s decision to keep the process under the rubric of the DEC rather than granting the demands for an independent study. “Environmental regulations, properly enforced and adhered to, protect human health, as well as all natural resources.”

Sunday, September 16, 2012

If push comes to shove, anti-frackers pledge not to budge

If fracking comes to New York, opposition groups are pledging to take the fight beyond traditional political channels and employ tactics used in the 1960s Civil Right’s movement. This would include passive “civil disobedience” such as human block-aides and sit-ins, to call attention to their cause and show their resolve to fight for it.

There is bitterness and vitriol on both sides of the debate over the risks and merits of high volume hydraulic fracturing – a controversial method of extracting gas from rock that has enabled a new era of on-shore drilling. Proponents see on shore drilling as a positive step to increase domestic energy supplies and national independence while phasing out coal. Critics see it as a reckless and unregulated corporate land grab that comes at the risk of the environment and public health. And there is plenty of visible protesting, street theater, and campaigning that illustrate the deepening entrenchment of positions over shale gas in New York state. Too much, in fact, for one journalist to cover, much less assign relevance to.

So why am I writing about a particular series of events that took place in upstate New York yesterday? Signers – 5,000 to date -- of the “Pledge of Resistance” represent a commitment that seems to extend beyond an ill-defined crowd that can be written off as reactionaries, hellions, ideologues, and band-wagon riders. Alliances within the group cut across demographics, with heavy representation from baby-boomers, some with a history in the Civil Rights movement that defined 1960s-era activism. As with pro-drilling groups, anti-fracking campaigners are represented by credentialed leadership including politicians, academics, and professionals with family and jobs. And they appear ready to push their comfort zone.

Three protesters were arrested earlier this month for blocking the entrance to an Inergy LLC facility near Watkins Glen, New York. Inergy plans to build a $40 million storage and transfer station for natural gas and liquid petroleum in underground salt caverns on the western side of Seneca Lake. The project is part of a build-out of infrastructure that would increase New York’s role in shale gas development. Those arrested included Gary Judson, a 72-year-old retired Methodist Minister.

The pledge of resistance is purportedly signed by people willing to go down that same path. They include political figures such as Binghamton Matt Ryan, and non-political figures such as Sue Rapp, a psychotherapist with a private practice in Vestal, New York. Rapp, a first-time demonstration speaker, considers herself an “accidental activist,” compelled to protest because of the prospects of shale gas development in her hometown, which sits over a lucrative part of the Marcellus Shale
A principal in the upstate New York movement is biologist and author Sandra Steingraber, distinguished scholar in residence at Ithaca College, and a mother of two children, ages 13 and 11. At rallies yesterday in Horseheads, Binghamton, and the Onondaga Nation, Steingraber promised more resistance to come. “I will be in the streets with you, and if the day comes that I will be a better parent in jail than out of jail, then I will be that parent,” she told a crowd of cheering followers at a rally in Otsiningo Park. “We stand ready to fill the streets in peaceful non-violent protests.”

A threat, of course, is different from action. And if push comes to shove, it remains to be seen whether the signatories will live up to their commitment in show-stopping numbers, or whether the effort will become an underwhelming side show in the ongoing national debate.

And so the story continues.

Saturday, September 8, 2012

DEC meeting with enviros suggests SGEIS unfinished Cuomo's staff wrestles with fracking health questions

Governor Andrew Cuomo’s top health and environmental administrators invited members of five environmental groups to Albany recently to discuss the state’s developing policy on fracking. In contrast to a raucous demonstration by grass roots groups a day prior, the meeting on August 28 at the state capitol between heads of state and members of the country’s most influential environmental groups was held quietly and privately, minus media or press statements. A delegation representing the Sierra Club, Environmental Advocates, the National Resources Defense Council, the Environmental Defense Fund, and Riverkeepers met with DEC Commissioner Joseph Martens and Department of Health Commissioner Nirav R. Shah, and their aides. There was no formal agenda, according to those who attended the meeting. Rather, the commissioners were seeking the groups’ input on health considerations in the state’s regulatory overhaul on which the future of shale gas development in New York is pending.

For those wondering about the status of shale gas development in New York, the meeting is the latest sign that the Cuomo administration is not yet ready to finalize its policy, despite reports to the contrary in the mainstream press.

Members of the groups told Shah and Martens that the most recent draft of the state’s policy – the Supplemental Generic Environmental Impact Statement – falls short of adequately addressing public health considerations that should be taken into account with full-scale gas development. While the SGEIS details economic gains that communities can expect from shale gas development, critics feel it has not delved far enough into liabilities – many of them related to public health –that a gas drilling region can expect over time. In addition to environmental groups, a diverse collection of mainstream medical and health agencies are seeking the continuation of New York’s moratorium on high volume hydraulic fracturing until both impacts of health and environment can be better documented. The groups include New York State Association of County Health Officials, the American Academy of Pediatrics, the New York State Nurses Association, and the Medical Society of the State of New York.

The simple fact that the environmental delegation was summoned to meet with the commissioners of the state’s health and environmental agencies is another sign of the governor’s ambivalence (discussed in a previous post) amid growing pressure on the administration. Grass roots groups have been protesting routinely in the halls of the Capitol, and a bevy of protestors have also flanked Cuomo during his public appearances in recent months, including a visit to the state fair on Labor Day, and an event in August called a Yogurt Summit to promote upstate dairy interests. Pro drilling groups have also been active, but not as visibly or as routinely as the opposition. More about that in a bit.

Unlike the grass roots groups, which are seeking a ban, the mainstream environmental interests are generally pushing for a moratorium to allow time to construct a more comprehensive regulatory framework to handle fracking – the controversial process to extract gas from bedrock which has enabled shale gas development. Groups such as the Sierra Club, NRDC, and EDF have met with environmental regulators in briefings about specific policy points, including proposals to mandate water monitoring wells at each gas well site, and to outlaw gas well completion prior to pipeline construction. It’s worth noting here that some drillers have already slowed their rate of expansion in Pennsylvania amid a market glut and storage limitations, and that requirements along these lines would discourage companies to aggressively expand operations into New York without a significant rise in demand and corresponding prices.

The state’s review of shale gas development, now in its fifth year, has focused on the environmental impacts of high volume hydraulic fracturing, ranging from water depletion to waste production. The August 28th meeting --first reported on an August 31 post by New York Times reporter Mireya Navarro on her blog, Green -- is the latest call for an independent assessment of health impacts. Prior to that, the New York State Association of County Health Officials called for an “expert, independent, and evidence-based study of potential public health impacts, preventive approaches to mitigate human health risks, and estimated related costs prior to lifting the moratorium on permits.” That request was included in a January report prepared for an advisory panel commissioned by Martens to help evaluate the resources needed to allow fracking. The report references several studies assessing impacts from shale gas development in other areas, including the Battlement Mesa Health Impact Assessment, by the Colorado School of Public Health, which takes into account issues ranging from volatile organic compounds from drilling operations posing risks of respiratory, skin and eye ailments, to potential impacts on women and children from repeated benzene exposures. The county health department assessment also references, among others, a report by Duke University’s Nicholas Institute for Environmental Policy Solutions that cites “adverse effects” on communities related to reused drilling wastewater and “the availability and quality of locally grown foods, recreational sites, and jobs.”

At the August 28th meeting in Albany, the delegation of environmental groups asked for an independently conducted health review of shale gas development along the lines of what was proposed by the association of county health officials. Although details were not discussed, it could potentially take into account chemical exposure risks from air and water emissions, industrial accidents, community stresses related to noise, traffic, housing, and population changes, as well as considering the resources necessary to manage them.

The commissioners seemed receptive to the ideas, according to participants.

“No commitments were made, but I think they heard our concerns and are taking them very seriously,” said Kate Sinding, a senior attorney with the NRDC who attended the meeting. Sinding added that she was satisfied with the review process so far. “This is already a success story. This is a policy review with a level of consideration and deliberation that we have not seen anywhere else.”

While administrators may be willing to beef up their review of health consequences of shale gas development, it’s unclear what form the review would take. A formally sanctioned review – called a Health Impact Assessment – would require a preliminary plan to outline both the scope of the initiative and the resources to pay for it. The multi-step process would be open to hearings and public review that could add years to the overall review process. The administration could also work on a less formal plan to addresses health concerns with existing tools and resources and tack them on to the SGEIS, a document that already exceeds 1,500 pages.

Regardless, the simple fact that a health review is on the table at this point suggests a final decision of fracking in New York is not imminent.

Other factors loom. The Democratic controlled Assembly has already passed a bill legislating a health impact assessment as part of the state’s review, and in the absence of considerable and unexpected change in the Assembly composition this November, it will likely have the votes to do so again next session. The bill went no where in the Senate, which is controlled by Republican’s by a thin margin. But Republican control of the Senate is more vulnerable than the Democrats’ control of the Assembly, and Cuomo might be anticipating various permutations of how the issue could play out in the next Legislature.

While Cuomo has been vague about the status of the SGEIS and noncommittal about its release date, reports in the mainstream press have fueled expectations that the document would be released by Labor Day or shortly after. The meeting between the top staff and the environmental groups is hard to reconcile with expectations reported in the mainstream press -- most recently by CBS News and Fred Lebrun of the Albany Times Union – that we could expect a final SGEIS by the end of summer to open the door for shale gas exploration in New York. Now, as mid-September approaches, advocates both for and against drilling are reporting that any decisions may be pushed off until after elections. Days after the commissioners of the DOH and DEC met with the environmental groups, the Joint Landowners Coalition of New York reported on its website that the governor was considering postponing a decision:

Despite all of the positive news about the potential release of the final SGEIS, we have been advised by credible sources that the Governor has been asked to delay the release of the SGEIS until after the November elections.

Signs of a delay also were reported by those in the anti-fracking camp.

“It seems to be on a slower track with a willingness to look at new issues,” said Rob Moore, executive director of Environmental Advocates, summing up a view that I heard from stakeholders involved with recent talks with the DEC.

Predictably, prospects of a delay have been praised in the anti-fracking camp and criticized by groups of landowners eager to lease their land to gas companies. Tim Whitesell is a landowner and supervisor of the Town of Binghamton – an area just north of the Pennsylvania border that sits over rich shale gas reserves, including the Marcellus and the Utica. Whitesell and 21 other town supervisors in this gas rich region sent a letter to Cuomo on Wednesday urging him “to direct the DEC to move forward as soon as possible with rules and regulations governing the process and to begin permitting.” Last week Whitesell told AP reporter Mary Esch “It’s very frustrating that we see this economic boom just south of us in Pennsylvania and we’re not able to take part in it.”

Some municipalities, including the Town of Binghamton, have passed resolutions favoring drilling, while others, such as the City of Binghamton, have passed resolutions opposing it. The issue playing out in local communities is legally known as Home Rule. Cuomo has said that when gas drilling begins, his administration would begin permitting in areas that want it and not in areas that oppose it; but the approach is rife with legal implications – about where and how the state can intervene to allow mineral extraction in some areas and not others -- that go well beyond the politics of the matter.

While proponents may be discouraged by Cuomo’s lack of commitment to shale gas development, they can take heart in President Obama’s bullish attitude on natural gas development nationally, expressed most recently during the president’s Convention speech. But in the short term, at least, there are market factors at work against the industry that transcend politics. A glut has driven prices down and dampened the pace of the rush that was going full bore in 2008, when gas companies were offering between $3,000 and $5,000 dollars an acre to lease land up front, plus royalties of 15 percent of more. Now the value of the mineral resources has fallen, raising questions whether shale gas extraction in New York is even economically viable. There is important and controversial work ongoing to develop infrastructure, however, including converting salt mines on the west side of Seneca Lake into a facility to warehouse surplus gas coming on line in Pennsylvania and Ohio until prices rise. In the meantime, Obama’s speech suggests the federal government will do what it can to support expanding markets for domestic natural gas, which would drive up prices and incentives to drill. Expect nothing less from a Mitt Romney administration, and probably much more in the way of deregulating the industry to lower the cost of extraction.

Thursday, September 6, 2012

Protestors chain selves to fence to impeded NY gas project Is Watkins Glen harbinger of civil disobedience strategy?

Two anti fracking protesters – reportedly senior citizens – have chained themselves to a fence at an Inergy facility near Watkins Glen, New York to impede a gas storage project under development there. Sandra Steingraber, founder of New Yorkers Against Fracking, said the protest began as an independent act by residents frustrated with Inergy’s conversion of salt mines along the lake into gas storage facilities without public input. As of late this morning, several dozen protestors have gathered in support.

Steingraber, an author and scholar in residence at Ithaca College, leads a coalition of anti-fracking groups in New York which has become a central part of a national anti-fracking movement. Late last month, Steingraber was among a delegation of activists who delivered a “pledge of resistance” signed by 3,000 activists to the office of New York Gov. Andrew Cuomo as part of a campaign to keep gas development out of New York state.

While protesters have enthusiastically gathered for rallies in Albany, they have yet to begin an organized campaign of civil disobedience implied in their “pledge of resistance.” The Watkins Glen protest is worth keeping an eye on because it marks the first high-profile test of this approach against the gas industry in New York.

Update 6 p.m. The protest ended peacefully when Schuyler County Sheriff William Yessman arrived with state police, according to witnesses. When the protesters refused to leave after a brief warning period, the police cut their handcuffs from the fence and walked them to squad cars. The protesters were identified as Jeremy Alderson, 63, and Gary Judson, 72. A third protester, Susan Walker, 53, was not chained to the fence but also arrested for refusing to leave. All three were issued trespassing violations and released with a warning that the penalties would become harsher with repeat offenses.
The protest was aimed at plans by Inergy LLC to build a $40 million storage and transfer station for natural gas and liquid petroleum in underground salt caverns on the western side of Seneca Lake. The project is part of a build-out of infrastructure that would increase New York’s role in shale gas development. Proponents see on shore drilling – enabled by high volume hydraulic fracturing -- as a positive step to increase domestic energy supplies and national independence. Critics see it as a reckless and unregulated corporate land grab that comes at the risk of the environment and public health.

The Inergy projecg is under review by the New York State Department of Environmental Conservation.

Tuesday, September 4, 2012

Federal health officials to assess Dimock pollution risk Probe follows positive tests by EPA for hazards in aquifer

Federal health officials are assessing risks related to elevated levels of arsenic, barium, manganese, and methane in an aquifer that supplies homes in a shale gas production zone in Dimock, Pa.

The Agency for Toxic Substances and Disease Registry is following up on an EPA study that analyzed the water of 64 homes near drilling operations in the Marcellus Shale in the rural community just south of the border with New York State. After six months of testing, the EPA concluded last month that levels of pollution in five of the wells – roughly 8 percent -- were high enough to pose health risks, but those risks were mitigated by treatment systems installed in or planned for the homes.

The EPA investigation was prompted by an ATSDR analysis of previous water tests in December, 2011. The ATSDR, acting on concerns by residents, evaluated records of previous samples collected by both Cabot Oil & Gas and the Pennsylvania Department of Environmental Protection. Officials found evidence of elevated levels of various solvents, metals, and glycols that posed “a possible chronic public health threat based on prolonged use of the water” in “at least some” of the Dimock wells.

According to the report -- titled, ATSDR Record of Activity/Technical Assist UJD #: IBD7 -- agency officials

visited the Dimock homes along Carter Road and State Route 3023 on November 10, 2011 and were provided a large amount of well data. Based on the home visits and preliminary review of data, EPA and ATSDR raised the following concerns: the reliability of methane removal systems; the presence of other contaminants besides methane (metals, volatile organics and non-naturally occurring organics) for which the well treatment systems are not designed or in place to address; and homes/wells in Dimock that may have never been tested and may be contaminated. The multiple sampling efforts at this site to date were conducted by PADEP and private contractors not affiliated with EPA.

In response to the concerns, the EPA subsequently tested wells in the area between January and June. In July, the EPA press office issued a release that stated “no further action” was needed by the EPA. But the release failed to mention that the EPA results would be factored into a broader health study by the ATSDR. Accordingly, the EPA results were widely characterized by news outlets as resolution to pollution questions that have nagged the small town overlying one of the most lucrative production zones for the Marcellus shale.

The ongoing ATSDR investigation and follow-up -- cited in the Record of Activity/Technical Assist – were confirmed by Bernadette Burden, a spokeswoman for the ATSDR. According to Burden, the agency is pursuing “a fairly comprehensive review” of the Dimock water case that takes into account the EPA tests, as well as previous tests by Cabot contractors and the DEP. The ATSDR -- a branch of the Centers of Disease Control and Prevention -- will account for risks of long-term exposures to the water through showering, drinking, bathing and washing, as well as risks that might be compounded when people are exposed to multiple toxicants. There is no time frame for the completion of the report, she said.

According to the December 2011 “Record of Activity/Technical Assist”:

A full public health evaluation should be conducted on the data from the site area. Because many of these compounds (e.g. metals) affect the same organ systems, ATSDR recommends evaluating the mixture for public health impacts using computational techniques or other suitable methods to evaluate the potential for synergistic actions: The cumulative concentration of all dissolved combustible gases should be considered to protect against the buildup of explosive atmospheres in all wells in the area.

The contaminants found by the EPA – arsenic, barium, manganese, and methane -- occur naturally in the ground. They are also associated with drilling operations, which can exacerbate existing problems or introduce new ones. In the five cases where the levels were high, according to the EPA press release, the residents have or will have treatment systems to reduce chemical concentrations to levels acceptable for potable water.

Dimock has been the focal point of a national controversy over the impacts and risks associated with shale gas development and high volume hydraulic fracturing. The process, commonly known as fracking, involves injecting bedrock with millions of gallons of chemical solution to stimulate the flow of natural gas. While fracking has often been implicated when things go wrong, the migration of methane and other chemicals in the ground into aquifers can be caused by drilling in the absence of fracking. Barium, one of the problem chemicals found in Dimock, is a common constituent of drilling “mud” – a viscous solution used to lubricate the drill bit and float cuttings to the surface.

The Dimock conflict began on January 1, 2009, with the explosion of a well that supplied water to the home of Norma Fiorentino, a plumber’s widow and great grandmother. A subsequent investigation by the Pennsylvania Department of Environmental Projection found that methane was seeping from nearby drilling operations into an aquifer that supplied Norma’s well and others along the Carter Road area. Cabot contested the findings after the DEP, under Governor Ed Rendall’s administration, determined that the aquifer was permanently damaged from methane migrating from the bores of nearby gas wells. The DEP ordered Cabot to build an $11 million water pipeline to supply affected homes. That order was lifted shortly after Tom Corbett won the gubernatorial election in November, 2011.

Last month, Cabot reported that it had reached terms for a settlement with 32 of 36 Dimock families that were suing the company for water pollution. Terms of the deal were not disclosed. Not all the plaintiffs accepted the deal, and some are continuing to pursue the case.

Note: I asked EPA officials the following question through spokeswoman Terri-A White. White told me to expect a reply soon. I will update this report accordingly.

Update: Answers from EPA added below in italics, 5 p.m. September 5.

EPA’s sampling of Dimock wells shows hazardous levels of methane in six instances.

HW03z (28,000 ug/l)
HW12 (52,000)
HW25 (65,000)
HW26-P (38,000)
HW29 (77,000)
HW29z (62,000)

What steps have been taken to correct this?

EPA Response: It should be noted that five of the wells sampled, not six, presented a level of methane above the federal Office of Surface Mining’s screening level of 28 parts per million. In the list of wells you've provided, HW29z is the same well as HW29. At the time of EPA’s sampling, two of these homes were receiving alternate sources of drinking water from Cabot. All of these residents were advised of the methane results and the results were also shared with PADEP and the Susquehanna County Emergency Management Agency. All of these residents were already aware that their water contained levels of methane. Overall, we have found that the homeowners are aware of the existence of methane in their private wells and generally have installed vents to reduce the potential build-up of methane in their wells.

Pennsylvania DEP is continuing to address the issue of methane in Dimock wells under a consent order and agreement.

ATSDR Record of Activity/Technical Assist (UJD #: IBD7 Date: 12/28/2011) advises the EPA that “Additional characterization of the groundwater quality and a thorough review of any changes in concentration over time are indicated. “

Has this been done?

EPA Response: Throughout EPA's sampling of residential well water in Dimock, which now has included five separate data releases, EPA has reviewed analytical results, and the particular circumstances at each residence, to make determinations on whether the situations presented a health concern, and if a further EPA action was warranted. The cumulative result from those efforts is a review which has shown that with only a few exceptions we did not find levels of hazardous substances in well water that could present a health concern. In those cases where the levels could present a health concern, we found that the residents have now or will have their own treatment systems that can reduce concentrations of contaminants to acceptable levels at the tap. No further characterization of groundwater is planned by EPA.

In the same document, the ATSDR has also recommended that “A full public health evaluation should be conducted on the data from the site area” and “evaluating the mixture for public health impacts using computational techniques or other suitable methods to evaluate the potential for synergistic actions” and “The cumulative concentration of all dissolved combustible gases should be considered to protect against the buildup of explosive atmospheres in all wells in the area. “

Has this been done?

EPA Response: EPA’s goal was to provide the Dimock community with complete, reliable information about the presence of contaminants in their drinking water and determine whether further action was warranted to protect public health. This sampling and evaluation did not demonstrate situations that present a health concern or give EPA a reason to take further action.