Pa. regulators seek public comment on shale development Seven years into the play, hearings intended to shape regs

We will soon know how passion and reason of stakeholders and the general public might shape regulations of shale gas development in Pennsylvania.

The state Department of Environmental Protection is holding a series of public meetings on provisions of Act 13, a bill intended to upgrade the state’s Oil & Gas law to accommodate unconventional gas extraction. The DEP is charged with taking into account public sentiment as it draws up specifics to implement the bill, which Governor Tom Corbett signed into law last year. Issues range from impacts on parks and wildlife areas to managing waste disposal and spills. The draft rulemaking also includes standards affecting the construction of pits, gathering lines, and temporary pipelines, provisions for identifying and monitoring abandoned wells (and related hazards of drilling through them) and the industry practice of spreading brine, which can include radio-active material and other well waste, on roads.

These and other highlights are summarized on the DEP website. But the overview does not mention key elements of Act 13 that have spawned controversy and law suits, and which are bound to also come up at the hearings. One is a provision regulating physicians who treat patients suffering from exposure to drilling and fracking chemicals. Commonly known as “the gag rule,” the regulation prohibits doctors’ access to information about chemicals in exposure cases. To get this information, physicians must sign a legal contract that prevents them from sharing it with anybody, including other health care providers.  In October, a U.S. District Court threw out a doctor's claim that the rule violates First Amendment rights. The ruling was made only because the doctor, Alfonso Rodriguez, brought the case before the court as a hypothetical situation, and therefore did not have standing. It did, however, leave the door open for claims based on actual events. (More on that here.)

Another touchy provision of Act 13 limits the power of municipalities to influence or ban development within their borders, while allowing drill rigs, waste pits, and pipelines in residential districts. The matter is now before Pennsylvania’s high court after municipalities -- including South Fayette in Allegheny County; and Peters, Cecil, Mt. Pleasant and Robinson in Washington County – successfully argued before the Commonwealth Court that the law was unconstitutional.

UPDATE: On Dec. 19th, the Pennsylvania Supreme Court ruled that part of Act 13 restricting local jurisdiction over gas wells was unconstitutional.

The Oil and Gas industry is exempt from both local and national regulations that apply to other business, ranging from zoning to the handling and disposal of hazardous waste. The justification for this (as I discuss in previous posts): cheap fossil fuel cannot be pulled from the earth with an overabundance of nit–picking inspectors and onerous regulatory burdens.

The degree to which shale gas operations should be regulated, and under which jurisdiction, is one thing. Banning them altogether is something different. The Environmental Quality Board, chaired by the Secretary of DEP, is responsible for adopting regulations and considering petitions to change them, and it will be interesting to see how much of a platform the hearings will become for stakeholders who want no regulation, some regulation, or an outright ban.

A 60-day comment period on the rule-making process began Sunday. The first of seven public hearings across the state is scheduled for Jan. 7 in Wyoming County. Officials have also scheduled informational webinars on Dec. 19, from 2:30 p.m. to 3:30 p.m., and Friday, Jan. 3, from 9:30 to 10:30 a.m. For information about schedules and how to submit testimony, click here.

Since the Marcellus drilling boom began in 2006, more than 6,500 shale wells have been drilled in Pennsylvania – making the Marcellus the number one natural gas play in the country. With the encouragement of pro-drilling governors, first Ed Rendell and now Tom Corbett, the DEP approach has been regulate-as-you-go. That’s a striking contrast to New York state, where officials suspended permitting for high volume hydraulic fracturing in 2008 pending an environmental review and policy overhaul, now in its sixth year and still absent resolution to questions about health impacts. As I have written in Under the Surface, contrasting political cultures and histories in New York and Pennsylvania have shaped the states’ respective approaches to shale gas development. The delay in New York has encouraged anti-fracking activists – bolstered by governor Andrew Cuomo’s liberal base advocating renewable energy - to organize campaigns against the industry, and use public meetings to showcase their opposition.

Will the forthcoming hearings in Pennsylvania also become a showcase for anti-frackers? Perhaps, but it is unlikely they will follow the pattern in New York. The organizational challenge to tip the balance away from the status quo is daunting, especially in this late stage of the game. For anti-frackers to simply show up is part of it, but influencing the process requires comments that are on point and informed. This is a strong suit for industry professionals, who make a living out of mastering policy and related practical, legal, economic, and regulatory intricacies.  And there are thousands of these details with far-reaching consequences encompassing a spectrum of issues, ranging from exemptions to burden of proof to liability to enforcement to bonding to well construction standards to impact fees and taxes… Etc, etc.

Doug Shields, an outspoken industry critic who was instrumental in passing a fracking ban when he was a Pittsburgh councilman in 2010, was later featured in Josh Fox’s Gasland II as a person on the front line of the anti-fracking movement in Pennsylvania. He told me that he expects activists to attend the DEP hearings to exert political pressure, but it will take more than that to significantly alter the course of fracking in Pennsylvania. “A big turnout sends a message to the elected,” he said. “But the meat and potatoes on regulations will be on the technical points.”  He added that he also expected some of the large environmental NGOs to take the lead in assessing and critiquing chapter and verse of the state’s proposal. ‘We will need to get some technical expertise to look at the proposed regulations and determine where the weaknesses are.”

In New York, the anti-fracking movement was able to draw on active chapters of groups such as the Sierra Club and the National Resources Defense Council, combined with  decisive technical help from figures such as Sandra Steingraber and Walter Hang, who each led sophisticated and ultimately effective critiques of New York’s draft guidelines and regulations. Advancing grass roots opposition early in the process on technical rather than ideological grounds, Hang marshaled letter writing campaigns and list serves to educate followers on the nuts and bolts of proposed permitting guidelines – called the Supplemental Generic Environmental Impact Statement -- and to guide responses that favored the movement. Steingraber adopted a similar approach – an online guide called the 30-Days of Fracking Regs – to encourage technically relevant comments first on fracking regulations and later on infrastructure projects. The efforts of both Hang and Steingraber have encouraged a flood comments that stalled the process.

Hang and Steingraber are among activists intent on blocking, rather than regulating the industry. Compared to Pennsylvania, the political ethos and history of New York has favored land preservation more than mineral extraction. Geology is also undoubtedly a factor. Pennsylvania’s extemporaneous approach to establishing rules for the shale gas industry (more than five years into the play) reflects a political tolerance tied to a storied history of extraction, including coal, oil and natural gas, in the state for better and worse. The forthcoming hearings and public comment period on Act 13 will be a grass roots test of how moved the electorate is to change the status quo of carbon dependency. A small response will reflect a willingness to defer to regulators and the state, while the opposite will provide critics with potentially potent raw material for change.

NY to file 90-day extension to finalize fracking rules

With a deadline imminent, New York State environmental officials will file for an extension to allow fracking regulations to be finalized while officials finish evaluating health risks associated with the controversial practice to extract gas from bedrock.

DEC spokeswoman Emily DeSantis conveyed the information in an email late this afternoon. The plan to file for an extension comes as an alternative to letting the rulemaking application expire and starting again – an option that would require reopening the process to public hearings that have become a lightening rod for dissention.

The deadline is Thursday, a year after the last public hearing on the issue. Filing for an extension seems logical from an administrative standpoint, but it comes with a key requirement: releasing a draft of the regulations for public comment. That requirement is at the center of a new upwelling of protests by environmental groups who don’t want any regulations released – even in draft form-- before a panel of independent experts have assessed how effectively the state has addressed health risks associated with high volume hydraulic fracturing.

Kate Sinding, senior attorney for the National Resources Defense Council, responded in a post on the agency’s blog, the Switchboard, that the decision to move forward rather than step back from the deadline

would also make the governor the Grinch who stole yet another Christmas from New Yorkers by delivering a set of unfinished revised rules – ones that don’t reflect the results of the on-going health and environmental reviews – and asking the public to weigh in on them over the holidays. This means fewer people are likely to be able to voice their concerns in time for the state to consider them as it finalizes the rules.

The choice will be welcomed by industry proponents eager for shale gas development to begin in New York because it sends a signal that the Cuomo administration is determined to push ahead with a plan to finalize regulations by the end of February – timing that corresponds with the completion of the health review. The Join Land Coalition of New York, a group of property owners lead by Broome County Landowner Dan Fitzsimmons who are eager to secure gas leases, issued a statement that the group is “cautiously optimistic” that the four and a half year process is nearing an end, and that “We are encouraged that the Governor and DEC have a plan to avoid expiration of the regulatory review.”

The process to adopt regulations – governed under the State Administrative Procedures Act – has progressed concurrently with an environmental review of fracking, called a Supplemental Generic Environmental Impact Statement (SGEIS). But unlike the SGIES, the SAPA rulemaking process must be completed within a year or restarted. The SGEIS, which is used to establish permitting guidelines in the absence of regulations as well as a tool to inform policy makers who are drafting regulations for a new industry, has been revised multiple times since 2008 after contentious public hearings and comment periods. Permitting remains on hold until the SGEIS is complete. That also could be in February, depending on the assessment and recommendations issued by the panel of health experts.

“DEC will file a notice for a 90-day extension allowed by state law to continue to work as [Department of Health Commissioner] Dr. Shah’s health review of the SGEIS comes to completion,” Emily DeSantis said in an email this afternoon.

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

Protestor Susan Walker is charged with trespass Watkins Glenn
PHOTO WILLIAM HOUSTON/ SHALE SHOCK MEDIA

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.

Breaking News: NY officials consider plan to begin fracking Cuomo’s approach squares with NRDC advice

New York state environmental regulators are considering a plan to begin shale gas development – and the controversial process of fracking – in certain locations within the Marcellus Shale drilling fairway on a trial basis.

A proposal to allow fracking in some parts of the state but not others was spelled out in a Jan. 11 memo to state environmental regulators from attorneys with the National Resources Defense Council. The memo urged officials to consider keeping “special places off limits” to fracking, due to risks to the water supply, while allowing it in other areas. The special places include the New York City and Syracuse watersheds, Catskill parks, the Finger Lakes regions, and “primary” aquifers.

The Marcellus drilling fairway -- the area with the greatest potential for shale gas development – extends from northern Pennsylvania into south central New York, including Tioga, Broom Counties, Delaware, and Chemung Counties. Beneath the Marcellus is the Utica Shale, which encompasses the same area, but extends much further north and west. Permits allowing for shale gas development in New York are on hold pending a review by the state Department of Environmental Conservation on the environmental impacts. The review, called the Supplemental Generic Environmental Impact Statement (SGEIS), is expected to be finalized later this year

As part of that review, the NRDC memo asked regulators to consider a three-year demonstration project in several “geographically limited areas.” Depending on the outcome, the state could then decide whether to “advance further a broader HVHF (High Volume Hydraulic Fracturing) program.” The memo was signed by NRDC senior attorneys Eric Goldstein and Kate Sinding, and consultant Craig Michaels.

According to an article by Danny Hakim in this morning’s New York Times, Gov. Andrew Cuomo’s administration is considering issuing permits in specific areas after the SGEIS is finalized. Hakim reported that “Cuomo’s administration is now trying to acknowledge the economic needs of the rural upstate area, while also honoring the opposition expressed in some communities, and limiting the ire of environmentalists, who worry that hydrofracking could contaminate groundwater and lead to other hazards.” Hakim’s story did not specifically link Cuomo’s approach to the NRDC proposal, although Cuomo’s plan appears to square with the NRDC recommendations, and activists are disappointed with the environmental organization for putting it on the table to begin with. Robert Kennedy Jr. serves as a senior attorney for the NRDC and sits on a panel that advices the DEC on it’s approach to shale gas.

Sinding said that the comments on the SGEIS were not an endorsement of plans to move ahead with shale gas, but a product of legal due diligence in evaluating all options. “We were clear that we were neither specifically endorsing any of these alternatives nor were we presupposing that any level of development should be approved – simply that the state cannot fully evaluate fracking here without an in-depth analysis of any and all scenarios that could take place here.” Sinding added: “We regret that these comments have created concern and confusion. We stand with our partners across New York State in calling for a continued moratorium on new fracking until the environmental and health risks are fully and properly considered.”

Nevertheless, the NRDC recommendation for regulators to consider a demonstration project in the context of the state's broader review has drawn criticism from activists, who argue that if drilling is unsafe in one watershed, it’s unsafe in others. Sandra Steingraber, founder of New Yorkers Against Fracking, characterizes the places where drilling would be permitted on a trial basis as “sacrifice zones.” Areas likely to see the first permits for fracking include Broome and Tioga counties, which sit in the center of the fairway, where shale gas development has been promoted as the foundation of an economic renaissance for impoverished communities.

"Partitioning our state into frack and no-frack zones based on economic desperation is a shameful idea, and we will actively oppose its implementation," Steingraber said.

The DEC suspended shale gas permitting in 2008 due to concerns over the safety of fracking, short for high volume hydraulic fracturing. The process involves injecting millions of gallons of proprietary chemical solution into the ground under high pressure to fracture bedrock and stimulate gas productions from a given well. Fracking has raised questions about the potential drain on water resources, the toxicity of the chemicals used, and the handling and disposal of waste --called flowback -- by an industry exempt from state and federal laws governing hazardous waste.

The governor’s office has been under pressure both from landowners groups and businesses pressing for shale gas development, and environmental groups opposed to it.

Steingraber, author of several books about toxic exposure relating to children, accused the NRDC of a compromise that would concede the development of shale gas in some communities to spare others. “Instead of defending these communities, which is NRDC's self-appointed charge, the organization provided to the DEC in great detail a plan that sounds a lot like the very plan that is today being floated by the Cuomo administration: partitioning the state into frack and no frack zones in a way that will, if implemented, place the Southern Tier on the far side of the shale gas curtain.”

Others welcomed signs that shale gas permitting could move forward in the Southern Tier. Jim Worden is a dairy farmer, drilling proponent and leader of the Windsor Landowners Coalition, which he helped organize to leverage bargaining power with shale gas companies seeking land leaes for gas development. Worden lives in an area of Broome County where several municipalities have passed resolutions asking the governor to begin issuing permits. “I agree, if it (fracking) is unsafe in one watershed, it is unsafe in others,” Worden said. “But this is not about safety. It’s about politics. I think it’s safe. This deal (to exclude some areas and include others) was made just to appease the people who don’t want it. Hopefully, this will get things going.”

The NRDC, with 1.3 million members and annual donations approaching $100 million, is one of the country’s most influential environmental institutions. It has international offices, but with its headquarters in New York City, it has a special stake in the shale gas controversy in New York state. NRDC Founding Director John Adams is a life-long resident of the Catskills, one of the areas where fracking would be prohibited.

The controversy involving the NRDC is emblematic of the problem large, mainstream environmental groups have had defining their positions on hydraulic fracturing. The Sierra Club once supported shale gas development as a clean alternative to coal and even accepted $26 million in donations from Chesapeake, one of the country’s largest gas drillers. After facing heavy criticism from local chapters, it changed its position. It now opposes shale gas development as environmentally unsound.