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

Steingraber at press conference with anti-fracking activists in Albany
PHOTO PROVIDED

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.