The last piece to New York’s four and a half year policy review of fracking will be completed in “a couple of weeks,” the state’s top regulator told lawmakers this week. And then what?
DEC Commissioner Joseph Martens gave a few clues but no clear answers as he responded to questions in a legislative budget hearing Monday in Albany after delivering a 14-minute summary of the Department of Environmental Conseravation’s notable activities in 2012. Speaking in front of legislators and a gallery filled with hundreds of anti-fracking activists who drew repeated admonishments from finance committee Chair John DeFrancisco to pipe down or face a prolonged recess, Martens read a prepared statement covering issues ranging from restoring coastal frontage after hurricane Sandy to land acquisition and outdoor recreation. Remarkably, his statement lacked any reference to the most controversial environmental issue facing the state: whether, when, or how to allow shale gas development to proceed. Martens left it to lawmakers to bring that subject up during the question and answer period. Although Martens answers tended to be vague, nearly two hours of questioning yielded these informational nuggets:
• The Supplemental Generic Environmental Impact Statement (SGEIS), the exhaustive policy overhaul aimed at regulating high volume hydraulic fracturing, cost “several million” dollars.
• Before finalizing the SGEIS, officials are awaiting an amendment from the Department of Health Commissioner Nirav Shah that assesses whether the DEC’s policy sufficiently covers health impacts. More information will be available after that piece is completed in “a couple of weeks,” Martens said.
• Martens said he has no idea what the Health Department amendment says, to what degree it will influence the final outcome of the DEC’s policy proposal, or whether the state will even proceed with the plan it has been working on for nearly five years.
• There are no funds in Cuomo's proposed budget for the fiscal year that starts in April to deal with fracking or the increased regulatory burden of permitting and overseeing shale gas wells.
• There has been broad anticipation that the state will release the SGEIS next week to meet a Feb. 27 deadline to finalize a set of regulations that are being developed concurrently with the SGEIS. Martens did not know whether the state would meet the deadline.
This is where the sequence of events gets unwieldy. The regs cannot be finalized without the SGEIS. And the SGEIS cannot be complete without the health department’s assessment of the risks. The health review -- added to the overall process late last year on an ad-hoc basis in an attempt to satisfy criticism -- now takes on critical importance and political complexity.
If anything was clear in Martens testimony, it was the importance of the Department of Health in deciding the fate of New York’s fracking policy. Responding to questions about why nothing had been budgeted this year to oversee fracking, Martens again referred to the pending health department amendment: “It is really up in the air,” he said. “It was premature to include funds when we weren’t at the end of the process.” Other answers to other questions repeatedly lead him back to the health review “… It all depends on what the health review says. If it recommends additional measures, it will be difficult to get the regs finalized … We’ll have it in a few weeks and then decide where we’ll go from there ... I have to get the health report before we make any decisions about whether we move forward or not…”
But what exactly is the health review? It lacks a public scoping component, procedural outline, and any clear definition of its objective that has been publically vetted. This is a sore spot for activists. An hour and 45 minutes into the hearing, Assemblywoman Barbara Lifton complained that the scope and contents of the health study were being kept secret, and she inquired whether it would be open to public hearings before it was finalized with the SGEIS.
Lifton: .. Is the public going to have an opportunity for public comment and review..?
Martens: (smiling and repeating an earlier quip): I’m sure the public will comment on this...
Lifton: ... I’m asking you a serious question … Is there going to be legal, formal public comment on this document ..?
Martens: “I don’t know at this stage. I haven’t seen the report yet. The report could include a whole range of things. From one end of the spectrum, -- no we’re not convinced you’ve done enough [to mitigate health risks]. They could be convinced that you’ve done enough and conclude it shouldn’t happen in New York. That’s one possibility. Until I’ve seen that I’m not drawing any conclusions. There may be no need for public comment, depending on what Dr. Shah says.“
An audio file of this exchange, edited by Matt Richmond of WSKG Radio, is below.
Martens vagueness – along with his remarkable claim that he has no idea what the report might say after earlier testifying he has been working with the Department of Health on these questions for years – reflects a more general opaqueness from the Cuomo administration about the fate of fracking in New York. It is an approach that has frustrated and angered people on both sides of the issue, but anti-fracking activist have reacted most visibly.
That anger reached a boiling point just prior to Martens’ testimony. As hundreds of activists filed into the assembly hall, and officials, law makers, staffers, and media milled around the floor, Sandra Steingraber, an Ithaca College biologist, environmental health specialist, and high-profile leader of the anti-fracking movement, sought out Martens and began pressing him for information. Martens turned away and one of his staff stepped in, prompting Steingraber to raise her voice to an oratory pitch echoing through the auditorium. “We are going to open this process up because secrecy cannot protect public health. I have tried to have a conversation with you, but you don’t answer any letters, so I’m using my voice, in front of the people of New York to say we are not standing for a secret health study…” Steingraber’s continued her impromptu stumping for a full minute with no signs of stopping before she was cut short by a burly official who demanded she take a seat or be arrested. Steingraber stood her ground, continuing her castigation long enough to illustrate the organization, gumption, and leadership of a grass roots network that will surely be challenging the DEC if fracking is allowed. (Video, posted by Colleen Boland on You Tube, is embeded below)
Beyond that, anybody trying to pull any definitive information about fracking from this scene or the ensuing hearings had slim pickings. Where does this leave residents evenly divided for and against fracking (according to a recent poll), and the 20 percent who haven’t made up their mind?
First, it’s important to remember that the decision to proceed with fracking, or not, extends well beyond the bureaucratic mechanism of the review process. Ultimately, it will be made above Martens and Shah and probably by Cuomo himself, given the governor’s political stake in the game. I have written before about Cuomo’s ambivalence about fracking, and Monday’s hearing once again shows, if anything, his contimued lack of commitment.
Missing the Feb. 13 deadlines suggests the DEC will not be issuing the regs by the end of the month and the agency will have to reopen that process while enduring the groundswell of protests that go along with each hearing. But it’s critical to remember that the permitting process can begin once the SGEIS is finished, even without the regs finalized.
This gives Cuomo a lot of options. Depending on which way the political winds blow (and the status of natural gas prices) New York could release the SGEIS before or after Wednesday’s deadline. Because permitting can begin without regulations, the release of the SGEIS, whenever it comes, would technically open the path of shale gas development in New York, although it would be a rocky, narrow path along the northern Marcellus frontier. This path will be fraught with strident anti-drilling resistance, protests, legal challenges, and a bottleneck of applications handled by an understaffed agency. For established operators, it certainly would be a much less attractive route than the permitting boulevard that has accelerated drilling and fracking in Pennsylvania. But it very well could appeal to a certain breed of prospectors, speculators, innovators, and exploration companies working with relatively large swaths of unleased land and willing to take the chances to stake out and prove up new territory.
Cuomo can also hold off, given the low prices of natural gas, the lack of the political push from the pro-gassers to offset the uprising from the antis, split poles, etc. With the SGEIS pieces pretty much in place, his lack of commitment is hard to read. Certainly, as a politician, he is inclined to weigh monumental political issues against other monumental political issues, and looking at the state’s energy needs goes beyond fracking. In action and rhetoric, the governor has supported closing Indian Point and discouraging coal-burning plants. Can he place himself to the left of President Obama on energy and still maintain mainstream presidential aspirations?
At the end of Martens’ testimony Monday, the protesters stood and chanted "Not one well!" before heading to the Capitol for a rally with Steingraber and celebrities that included actor Mark Rufalo and film-maker Josh Fox. They were also joined by Arun Gandhi, grandson of Mahatma Gandhi, who sign a "pledge of resistance" to fracking and is training protesters in civil disobedience if shale gas development is permitted.
That story is taking shape and we will soon know whether or how it will unfold.
Showing posts with label regs. Show all posts
Showing posts with label regs. Show all posts
Friday, February 8, 2013
Friday, January 11, 2013
Activists attack fracking plan with DEC’s own red tape 200K comments on final day puts pressure on NY agency
With one deadline past and another imminent, staffers at New York’s Department of Environmental Conservation attempting to resolve New York’s fracking conundrum find themselves in a familiar position: under pressure.
On the final day for public comment on draft regulations for development of shale gas reserves under upstate New York, members of a well-organized anti-fracking campaign delivered more than 200,000 written comments. Activists carted boxes into the agency’s headquarters in Albany hours before the 5 p.m. deadline. DEC staffers now have 50 days to process and respond to this latest deluge of criticism before they can finalize a plan.
Following the direction of New York Governor Andrew Cuomo and DEC Commissioner Joseph Martens, officials have been attempting to complete policy for shale gas development in New York. The focus is on high volume hydraulic fracturing, known commonly as fracking – a process to shatter subterranean mantels of bedrock with pressurized chemical solution to release oil and gas. Advances in fracking technology are enabling exploitation of reserves that were previously inaccessible, and also raising concerns about social and environmental impacts from a new era of mineral extraction on a scale previously unseen. Until New York’s policy is complete, permits to develop the Utica and Marcellus shales extending under upstate New York are on hold.
As of Monday, the DEC had received 1,373 comments, said Emily DeSantis, a spokeswoman for the agency. Today’s special delivery capped off a week of protests that served as a political show of force by both grass roots and institutional fracking opponents, lead by activists well versed in the procedural, political, and scientific aspects of the hotly debated issue. On Monday, Climate Change headliner Bill McKibben spoke on the hazards of fossil fuel extraction and consumption and global warming in front of a sold-out crowd in The Egg, a 1,500-seat performing arts venue in Rockefeller Plaza. On Wednesday, more than 1,500 chanting protesters with signs and banners crammed a quarter-mile stretch of the plaza’s underground concourse, which connects the state Capitol and Legislative Office Building to the convention center where governor Cuomo delivered his State of the State address. The demonstration included an appearance and performance by 93-year-old folk legend Pete Seeger.
Today, the comments were delivered to the DEC with a delegation that included Sandra Steingraber, a biologist, activist and author who has been tutoring followers on the technical aspects of the regulations and encouraging them to respond, and Yoko Ono and Sean Lennon, who are among celebrities who have served as figureheads for the movement.
While there is bound to be a percentage of comments that are redundant or irrelevant, the agency will still have to read them, sort them, and respond appropriately by Feb. 27. That means that staffers will have to read and sort some 4,000 comments a day. That’s 400 an hour, more than six a minute, or one every 10 seconds. That's assuming 70-hour workweeks with no breaks to answer the phone, eat, or go to the bathroom. Of course, one person will not be processing all the requests. But it’s a daunting challenge even for a qualified team of officials, and it raises the questions of what kind of resources the DEC will be able to summon to meet the deadline. Within this mass of paperworks will be comments that require extra thoughtful analysis and perhaps, if taken in good faith, warrant change to the draft document. In addition to the boxes of comments, the agency will have to respond to “some very detailed technical comments” from environmental groups, including the National Resource Defense Council, Earthjustice, Riverkeeper, Catskill Mountainkeeper, and Sierra Club being submitted this afternoon, said Deborah Goldberg, an attorney with Earth Justice.
“Failure to comply with these requirements is grounds for legal challenge,” Goldberg said.
The sheer volume of responses will pose a significant logistical problem for the agency, which has to respond to all of them before finalizing regulations. The agency issued the draft regulations on Nov. 29 to qualify for a 90-day extension to keep the rule making process from expiring. By law, the agency also had to allow a 30-day period -- from Dec. 12 until today -- for public comment. If the regulations are not finalized by Feb. 27, the agency will have to restart the rule making process and reopen it for public comment.
The regulations, however, are just one piece of New York’s monumental and unprecedented policy overhaul to try to come to terms with shale gas development. The regulations represent the battle of today. A larger and more critical piece, and surely to become the battle of tomorrow, is a review of environmental and health impacts on which the regulations are based. That review, called the Supplemental Generic Environmental Impact Statement (SGEIS), has been in draft form since 2008 and there is no deadline for its completion. In theory, the state could begin issuing permits for shale development after the final version of the SGEIS is released, even if the regulations are not finalized.
That also would provoke an all out effort, including law suits, by the coalition of groups leading the anti-fracking campaign who have faulted the process every step of the way. A salient complaint is that the regulations were issued prior to the final SGEIS on which they were based, forcing the public to evaluate regulations without access to the SGEIS and relevant health and environmental considerations.
In response to a request from leaders of environmental groups, and in anticipation of law suits, Martens announced last fall that the state was hiring outside consultants to review the work of the DEC to ensure that it had sufficiently accounted for public health impacts of fracking. Like the final SGEIS, the scope and results of that review have not been made public.
Even as the regulations are being developed, Cuomo’s administration has indicated through prepared statements that it is undecided on whether it will allow shale gas development. It is a subject that Cuomo rarely addresses publically. He did not mention it in this week’s State of the State address, even though fracking represents the biggest environmental policy fight in the state’s recent history.
Update: John Campbell, Gannett’s Albany reporter, reported today that if DEC officials intend to finalize the regulations by Feb. 27, administrative law requires them to release the final SGEIS (which includes a summary of the health assessment) at least 10 days prior. A mid-February release of the SGEIS would be a clear sign that the agency intends to push forward against the resistance with its plan to open New York of shale gas development. That would be a victory for those who have been supporting development for economic reasons. If the agency lets that window pass, it would signal the opposite.
On the final day for public comment on draft regulations for development of shale gas reserves under upstate New York, members of a well-organized anti-fracking campaign delivered more than 200,000 written comments. Activists carted boxes into the agency’s headquarters in Albany hours before the 5 p.m. deadline. DEC staffers now have 50 days to process and respond to this latest deluge of criticism before they can finalize a plan.
Following the direction of New York Governor Andrew Cuomo and DEC Commissioner Joseph Martens, officials have been attempting to complete policy for shale gas development in New York. The focus is on high volume hydraulic fracturing, known commonly as fracking – a process to shatter subterranean mantels of bedrock with pressurized chemical solution to release oil and gas. Advances in fracking technology are enabling exploitation of reserves that were previously inaccessible, and also raising concerns about social and environmental impacts from a new era of mineral extraction on a scale previously unseen. Until New York’s policy is complete, permits to develop the Utica and Marcellus shales extending under upstate New York are on hold.
As of Monday, the DEC had received 1,373 comments, said Emily DeSantis, a spokeswoman for the agency. Today’s special delivery capped off a week of protests that served as a political show of force by both grass roots and institutional fracking opponents, lead by activists well versed in the procedural, political, and scientific aspects of the hotly debated issue. On Monday, Climate Change headliner Bill McKibben spoke on the hazards of fossil fuel extraction and consumption and global warming in front of a sold-out crowd in The Egg, a 1,500-seat performing arts venue in Rockefeller Plaza. On Wednesday, more than 1,500 chanting protesters with signs and banners crammed a quarter-mile stretch of the plaza’s underground concourse, which connects the state Capitol and Legislative Office Building to the convention center where governor Cuomo delivered his State of the State address. The demonstration included an appearance and performance by 93-year-old folk legend Pete Seeger.
Today, the comments were delivered to the DEC with a delegation that included Sandra Steingraber, a biologist, activist and author who has been tutoring followers on the technical aspects of the regulations and encouraging them to respond, and Yoko Ono and Sean Lennon, who are among celebrities who have served as figureheads for the movement.
While there is bound to be a percentage of comments that are redundant or irrelevant, the agency will still have to read them, sort them, and respond appropriately by Feb. 27. That means that staffers will have to read and sort some 4,000 comments a day. That’s 400 an hour, more than six a minute, or one every 10 seconds. That's assuming 70-hour workweeks with no breaks to answer the phone, eat, or go to the bathroom. Of course, one person will not be processing all the requests. But it’s a daunting challenge even for a qualified team of officials, and it raises the questions of what kind of resources the DEC will be able to summon to meet the deadline. Within this mass of paperworks will be comments that require extra thoughtful analysis and perhaps, if taken in good faith, warrant change to the draft document. In addition to the boxes of comments, the agency will have to respond to “some very detailed technical comments” from environmental groups, including the National Resource Defense Council, Earthjustice, Riverkeeper, Catskill Mountainkeeper, and Sierra Club being submitted this afternoon, said Deborah Goldberg, an attorney with Earth Justice.
“Failure to comply with these requirements is grounds for legal challenge,” Goldberg said.
The sheer volume of responses will pose a significant logistical problem for the agency, which has to respond to all of them before finalizing regulations. The agency issued the draft regulations on Nov. 29 to qualify for a 90-day extension to keep the rule making process from expiring. By law, the agency also had to allow a 30-day period -- from Dec. 12 until today -- for public comment. If the regulations are not finalized by Feb. 27, the agency will have to restart the rule making process and reopen it for public comment.
The regulations, however, are just one piece of New York’s monumental and unprecedented policy overhaul to try to come to terms with shale gas development. The regulations represent the battle of today. A larger and more critical piece, and surely to become the battle of tomorrow, is a review of environmental and health impacts on which the regulations are based. That review, called the Supplemental Generic Environmental Impact Statement (SGEIS), has been in draft form since 2008 and there is no deadline for its completion. In theory, the state could begin issuing permits for shale development after the final version of the SGEIS is released, even if the regulations are not finalized.
That also would provoke an all out effort, including law suits, by the coalition of groups leading the anti-fracking campaign who have faulted the process every step of the way. A salient complaint is that the regulations were issued prior to the final SGEIS on which they were based, forcing the public to evaluate regulations without access to the SGEIS and relevant health and environmental considerations.
In response to a request from leaders of environmental groups, and in anticipation of law suits, Martens announced last fall that the state was hiring outside consultants to review the work of the DEC to ensure that it had sufficiently accounted for public health impacts of fracking. Like the final SGEIS, the scope and results of that review have not been made public.
Even as the regulations are being developed, Cuomo’s administration has indicated through prepared statements that it is undecided on whether it will allow shale gas development. It is a subject that Cuomo rarely addresses publically. He did not mention it in this week’s State of the State address, even though fracking represents the biggest environmental policy fight in the state’s recent history.
Update: John Campbell, Gannett’s Albany reporter, reported today that if DEC officials intend to finalize the regulations by Feb. 27, administrative law requires them to release the final SGEIS (which includes a summary of the health assessment) at least 10 days prior. A mid-February release of the SGEIS would be a clear sign that the agency intends to push forward against the resistance with its plan to open New York of shale gas development. That would be a victory for those who have been supporting development for economic reasons. If the agency lets that window pass, it would signal the opposite.
Monday, December 17, 2012
‘30-days of fracking regs’ deconstructs New York policy NY, Pa differ in assessing blame when things go wrong
For those reflecting on the prospects of shale gas development in New York State, Governor Andrew Cuomo and his staff have this holiday message for you:
Last week, a 30-day countdown began toward the Jan. 11 deadline for public-comment on New York’s draft regulations to oversee shale gas development. The timing of the process drew complaints from activists that the Cuomo administration is railroading the regs under cover of holiday bustle and without meaningful context. Still missing is a full accounting of environmental and health considerations in a document yet to be released in final form. This document, called the Supplemental Generic Environmental Impact Statement (SGEIS), is designed to provide the foundation on which the regulations are based.
The regulatory package in question is intended to provide rules to settle key questions. How close can a well bore be drilled to a water supply or dwelling, and how is accountability assessed when things go wrong?
Anti-fracking activist Sandra Steingraber has offered to help those finding it difficult to squeeze in this extra fracking homework amid the holiday rush. She has produced “30-days of fracking regs,” an exercise she described as a “fun-yet-deadly-serious approach to commenting” on New York’s policy prior to the Jan. 11 deadline. Steingraber – an author and ecology professor at Ithaca College – uses this Advent-calendar approach in an attempt to demystifying issues such as set-backs, well construction specifications, spacing requirements, and abandonment policy. As an example, I have opened Steingraber’s Dec. 13th advent box: NYCRR Subchapter B, Part 560, Operations Associated with High-Volume Hydraulic Fracturing, Section 560.4, Setbacks. In the interest of balancing Steingraber’s informed but one-sided analysis, I have also asked experts in the pro-fracking camp to comment. In this post, Terry Engelder, a geologist at Penn State University who specializes in shale formations, provides a counterweight.
Here is Steingraber’s Dec. 13th assessment:
Engelder explained that Corbett’ administration passed laws that increased the minimum setback from a private water well from 200 feet to 500 feet, and from a public water supply (water well, surface water intake or reservoir) to 1,000 feet, unless waived in writing by the water works administrator. Moreover, the laws also expanded an operator’s “presumed liability” for water pollution to within 2,500 feet of a gas well. Previously, the distance was 1,000 feet. In other words, when water wells suddenly go bad within 2,500 feet of an oil and gas drilling or fracking operation, the burden falls to operators to prove that drilling did not cause the problem, rather than to the homeowner to prove that drillers did it. The time frame for “presumed liability” on drilling companies was increased from 6 months to 12 months of completion or alteration of the well. He expains:
Tied to the issue of presumed liability is baseline testing. That is, testing to assess ground water conditions before, during, and after drilling. Shifting the burden of proof onto operators in Pennsylvania encourages them to thoroughly document water quality data throughout the process as a defense against claims.
The New York regulations do not by default hold gas drillers responsible for problems within set distances to wells. But they would require baseline testing of aquifers within 1,000 feet. If there are no private water wells within 1,000 feet, they require baseline testing up to 2,000 feet. The thinking here is that data sets collected under the state’s protocol will provide proof of guilt or innocence of charges of water pollution.
The regulations regarding set backs and testing involve just a few pages of a regulatory process that takes up volumes in New York alone. They deal with questions about air pollution, public land use, record keeping protocol, spacing, waste management, disclosure requirements, and many other issues. I have asked other stakeholders to highlight points that they see as critical, and I hope to return to the issue in future posts.
In the meantime, Happy Holidays, and happy reading.
See: High Volume Hydraulic Fracturing Proposed Regulations 6 NYCRR, Parts 52, 190, 550-556, 560, and 750.
Happy New Year!
Last week, a 30-day countdown began toward the Jan. 11 deadline for public-comment on New York’s draft regulations to oversee shale gas development. The timing of the process drew complaints from activists that the Cuomo administration is railroading the regs under cover of holiday bustle and without meaningful context. Still missing is a full accounting of environmental and health considerations in a document yet to be released in final form. This document, called the Supplemental Generic Environmental Impact Statement (SGEIS), is designed to provide the foundation on which the regulations are based.
The regulatory package in question is intended to provide rules to settle key questions. How close can a well bore be drilled to a water supply or dwelling, and how is accountability assessed when things go wrong?
Anti-fracking activist Sandra Steingraber has offered to help those finding it difficult to squeeze in this extra fracking homework amid the holiday rush. She has produced “30-days of fracking regs,” an exercise she described as a “fun-yet-deadly-serious approach to commenting” on New York’s policy prior to the Jan. 11 deadline. Steingraber – an author and ecology professor at Ithaca College – uses this Advent-calendar approach in an attempt to demystifying issues such as set-backs, well construction specifications, spacing requirements, and abandonment policy. As an example, I have opened Steingraber’s Dec. 13th advent box: NYCRR Subchapter B, Part 560, Operations Associated with High-Volume Hydraulic Fracturing, Section 560.4, Setbacks. In the interest of balancing Steingraber’s informed but one-sided analysis, I have also asked experts in the pro-fracking camp to comment. In this post, Terry Engelder, a geologist at Penn State University who specializes in shale formations, provides a counterweight.
Here is Steingraber’s Dec. 13th assessment:
Today, day 2 of the regs comment calendar, falls in the second week of Advent. In the Christian calendar, Advent is a season of waiting, alertness, and reflection on the myriad injustices of the Roman occupation. In that spirit, and continuing yesterday's focus on setbacks, let's reflect on the proposed allowable distances between fracking wells and our drinking water. Take a close look at Section 560.4(a)(1 and 3-5):Engelder offers a response to the question of setbacks in the context of Pennsylvania laws developed with recommendations by an advisory committee set up by Governor Tom Corbett:
Section 560, subdivision 560.4 -- Setbacks
(a) No well pad or portion of a well pad may be located:
(1) within 500 feet from a residential water well, domestic supply spring or water well or spring used as a water supply for livestock or crops;
(2) within 500 feet from an inhabited dwelling or place of assembly;
(3) within a primary aquifer and a 500-foot buffer from the boundary of a primary aquifer
(4) within a 100-year floodplain; and
(5) within 2,000 feet of any public water supply municipal or otherwise, or the boundaries of any public water supply reservoir, natural lake or man-made impoundment (except engineered impoundments constructed for fresh water storage associated with fracturing operations).
Primary aquifers are underground pools of water that supply drinking water to major municipalities. There are 18 of them in our state. Principal aquifers, by contrast, provide drinking water to smaller communities and to families with private wells. Note that setback protections for principal aquifers do not exist at all. Thus, people living in large municipalities are afforded more protection than citizens in rural communities. Also, setbacks apply only to the well pads on the surface, not to the underground wellbores: horizontal drilling underneath both kinds of aquifers is allowed. Drilling under lakes and rivers is also allowed. No consideration is given to natural faults in the bedrock, which can act as pathways for the migration of methane and other chemicals.
One peer-reviewed study found elevated levels of methane in drinking water wells that were located up to a kilometer away from a gas well. The regs do not require monitoring wells. (Mandated for other industries, a monitoring well is used to obtain samples of groundwater to periodically test for the presence of pollutants.) Thus, New Yorkers who rely on groundwater - and there are nearly five million of us - would only know we have a problem when we develop rashes after showering or discover that our tap water is flammable. In essence, under these regulations, the kitchen faucets of homeowners would serve as monitoring wells for the gas industry. And last: as recent weather patterns show us, the 100-year-floods that define 100-year floodplains are now arriving with much greater frequency than once per century.
The Commission recognized that there will always be some inherent risk to gas drilling regardless of the setback distance. Because setbacks are arbitrary, the Commission felt that a greatly expanded radius of liability was appropriate when it came to exploitation of Marcellus gas. [‘Radius of liability’ is the area within a given distance of a gas well where drillers must accept accountability for problems unless they can prove otherwise.]
Engelder explained that Corbett’ administration passed laws that increased the minimum setback from a private water well from 200 feet to 500 feet, and from a public water supply (water well, surface water intake or reservoir) to 1,000 feet, unless waived in writing by the water works administrator. Moreover, the laws also expanded an operator’s “presumed liability” for water pollution to within 2,500 feet of a gas well. Previously, the distance was 1,000 feet. In other words, when water wells suddenly go bad within 2,500 feet of an oil and gas drilling or fracking operation, the burden falls to operators to prove that drilling did not cause the problem, rather than to the homeowner to prove that drillers did it. The time frame for “presumed liability” on drilling companies was increased from 6 months to 12 months of completion or alteration of the well. He expains:
Even in rural portions of Pennsylvania, the Commission recognized that increasing setback distances beyond, say, 500 feet could potentially limit resource recovery. Because the true risk can never be known ahead of time, any setback distance is arbitrary. So, rather than greatly limit or even stop resource recovery because of some perceived risk, the Commission greatly expanded the explicit presumption of liability.
Now, the State presumes operator liability if anything goes wrong with, for example, private water wells within an area that covers the better fraction of a square mile centered on a well pad. Assuming that the full development of the Marcellus requires about one well pad per square mile, this means that presumed liability may extend over virtually all surface area under which the Marcellus is to be extracted in Pennsylvania. In other words, the Commission resolved the contentious issue of expanding setbacks because of some perceived risk in favor of placing the onus of liability on industry through an expanded radius of presumed liability should something unpredictable happen that adversely affected public health and safety.
The Commission recognized that problems were greatest in the top 500-1000 feet penetrated by the vertical portion of Marcellus well. This is the zone of fresh drinking water. The Commission also recognized the geological factors reduced the risk from horizontal portions of wells to near zero, with the exception of encountering abandoned wells. Because the risk of encountering abandoned wells is not zero, the operators are developing protocols for dealing with this situation in a way that assures public safety. The expanded radius of presumed liability covers situations in which unknown, abandoned wells are caused to flow by stimulation of horizontal wells.
Tied to the issue of presumed liability is baseline testing. That is, testing to assess ground water conditions before, during, and after drilling. Shifting the burden of proof onto operators in Pennsylvania encourages them to thoroughly document water quality data throughout the process as a defense against claims.
The New York regulations do not by default hold gas drillers responsible for problems within set distances to wells. But they would require baseline testing of aquifers within 1,000 feet. If there are no private water wells within 1,000 feet, they require baseline testing up to 2,000 feet. The thinking here is that data sets collected under the state’s protocol will provide proof of guilt or innocence of charges of water pollution.
The regulations regarding set backs and testing involve just a few pages of a regulatory process that takes up volumes in New York alone. They deal with questions about air pollution, public land use, record keeping protocol, spacing, waste management, disclosure requirements, and many other issues. I have asked other stakeholders to highlight points that they see as critical, and I hope to return to the issue in future posts.
In the meantime, Happy Holidays, and happy reading.
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.
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.
Saturday, December 1, 2012
Cuomo buys more time for New York fracking decision DEC: draft regs do not signal commitment to shale gas
It’s been another frenzied week on the fracking front in Albany – with much sound and fury signifying nothing.
Or not?
Another deadline came and went amid confusion and contention about the timing and protocol of issuing draft regulations for shale gas development in New York. To clear things up, Governor Andrew Cuomo’s administration issued a statement Friday saying everything is still up in the air.
We learned, after the administration filed draft regs to avoid a deadline that would have derailed the epic policy process, that the Governor is still undecided. The draft regulations over which officials at state Department of Environmental Conservation have toiled for the past year are not a reflection of the governor’s intentions to embrace or reject shale gas.
“If DEC decides that hydraulic fracturing cannot be safely done in New York, these regulations will not have any practical effect and the process will not go forward,” read the statement from DEC spokeswoman Emily DeSantis. “If DEC decides that the process can be done safely, these regulations would be adjusted in accordance with the health and safety requirements and issues addressed in the Supplemental Generic Environmental Impact Statement.”
The statement came two days after the administration kept alive the prospect of shale gas development by quietly issuing the pending regulations – still a work in progress -- to meet a Nov. 29th administrative deadline. Failure to meet the deadline would mean the rulemaking process would expire. That would be a relief to fracking opponents, because it would send the administration back to the drawing board and re-open the process to the contentious public hearings that have built momentum for a well organized and motivated anti-fracking movement. The movement has gone nationwide, and New York occupies center stage. For that same reason, missing the deadline would have been a blow to fracking proponents – including groups of landowners eager to lease their land, backed by conservative business interests and the industry’s advertising and lobbying muscle. (Proponents see high volume hydraulic fracturing – a process to extract natural gas from bedrock by injecting large volumes of pressured chemical solution -- as vital to economic development and energy independence. Opponents see it as environmental ruin and building dependence on fossil fuels.)
Nobody knew right up to and following the final hour of the deadline what course Cuomo’s DEC would take, and when the hour came and went, not everybody was even sure whether the state had filed the regs because no official notice was given. While there was no attempt by the governor’s office to defuse the matter, I know from sources close to this that their was a frenzied push by DEC staff to meet the deadline even as representatives from influential environmental groups made last ditch calls to urge them to hold off, at least until the agency could receive analysis of a panel of independent health experts commissioned to review DEC’s policy.
So why didn’t the DEC issue a statement to clear things up in advance of all this rather than switch to damage control amid protest that followed?
An obvious read of the situation is that meeting the deadline represents a step toward rather than a step away from shale gas development. Why would the agency be sweating the details over thousands pages of dense policy – flawed in the eyes of some and sound in the eyes of others and certain to meet legal challenges from many angles -- if officials were ready to shelve the entire regulatory project that has been under fire for more than four years?
The answer is that Cuomo himself -- two years away from a gubernatorial election and/or possibly four years away from a presidential bid -- is buying as much time as he can while attempting to manage the political forces at work that will influence his career and shale gas development in particular. Regardless of the outcome, he will have to answer two critical political constituencies. Well-healed and internationally renown environmental groups such as the National Resources Defense Council (among others) and Big Oil and the business lobby. Both of these institutional forces are backed by impassioned grass roots bases. Adding to the complications: Cuomo cannot yet gauge Legislative positions, as control of the Senate remains undecided.
The action of the last week tells us, if anything, that Cuomo is taking the fracking conundrum day-by-day if not hour-by-hour. The decision to meet the deadline by issuing a draft of the regs sends a signal to industry supporters that the administration is moving forward in good faith to get policy in place that would allow shale gas development. The statement that came retroactively to explain the decision was clearly intended to calm an uprising with the anti-fracking movement by suggesting that the administration has not passed the point of no return.
Here is the entire statement from the DEC:
Or not?
Another deadline came and went amid confusion and contention about the timing and protocol of issuing draft regulations for shale gas development in New York. To clear things up, Governor Andrew Cuomo’s administration issued a statement Friday saying everything is still up in the air.
We learned, after the administration filed draft regs to avoid a deadline that would have derailed the epic policy process, that the Governor is still undecided. The draft regulations over which officials at state Department of Environmental Conservation have toiled for the past year are not a reflection of the governor’s intentions to embrace or reject shale gas.
“If DEC decides that hydraulic fracturing cannot be safely done in New York, these regulations will not have any practical effect and the process will not go forward,” read the statement from DEC spokeswoman Emily DeSantis. “If DEC decides that the process can be done safely, these regulations would be adjusted in accordance with the health and safety requirements and issues addressed in the Supplemental Generic Environmental Impact Statement.”
The statement came two days after the administration kept alive the prospect of shale gas development by quietly issuing the pending regulations – still a work in progress -- to meet a Nov. 29th administrative deadline. Failure to meet the deadline would mean the rulemaking process would expire. That would be a relief to fracking opponents, because it would send the administration back to the drawing board and re-open the process to the contentious public hearings that have built momentum for a well organized and motivated anti-fracking movement. The movement has gone nationwide, and New York occupies center stage. For that same reason, missing the deadline would have been a blow to fracking proponents – including groups of landowners eager to lease their land, backed by conservative business interests and the industry’s advertising and lobbying muscle. (Proponents see high volume hydraulic fracturing – a process to extract natural gas from bedrock by injecting large volumes of pressured chemical solution -- as vital to economic development and energy independence. Opponents see it as environmental ruin and building dependence on fossil fuels.)
Nobody knew right up to and following the final hour of the deadline what course Cuomo’s DEC would take, and when the hour came and went, not everybody was even sure whether the state had filed the regs because no official notice was given. While there was no attempt by the governor’s office to defuse the matter, I know from sources close to this that their was a frenzied push by DEC staff to meet the deadline even as representatives from influential environmental groups made last ditch calls to urge them to hold off, at least until the agency could receive analysis of a panel of independent health experts commissioned to review DEC’s policy.
So why didn’t the DEC issue a statement to clear things up in advance of all this rather than switch to damage control amid protest that followed?
An obvious read of the situation is that meeting the deadline represents a step toward rather than a step away from shale gas development. Why would the agency be sweating the details over thousands pages of dense policy – flawed in the eyes of some and sound in the eyes of others and certain to meet legal challenges from many angles -- if officials were ready to shelve the entire regulatory project that has been under fire for more than four years?
The answer is that Cuomo himself -- two years away from a gubernatorial election and/or possibly four years away from a presidential bid -- is buying as much time as he can while attempting to manage the political forces at work that will influence his career and shale gas development in particular. Regardless of the outcome, he will have to answer two critical political constituencies. Well-healed and internationally renown environmental groups such as the National Resources Defense Council (among others) and Big Oil and the business lobby. Both of these institutional forces are backed by impassioned grass roots bases. Adding to the complications: Cuomo cannot yet gauge Legislative positions, as control of the Senate remains undecided.
The action of the last week tells us, if anything, that Cuomo is taking the fracking conundrum day-by-day if not hour-by-hour. The decision to meet the deadline by issuing a draft of the regs sends a signal to industry supporters that the administration is moving forward in good faith to get policy in place that would allow shale gas development. The statement that came retroactively to explain the decision was clearly intended to calm an uprising with the anti-fracking movement by suggesting that the administration has not passed the point of no return.
Here is the entire statement from the DEC:
The New York State Department of Environmental Conservation DEC has filed a Notice of Continuation with the Department of State to extend the rulemaking process by 90 days in order to give New York State Commissioner of Health, Dr. Nirav Shah, time to complete his review of the draft Supplemental Generic Environmental Impact Statement. This extension is necessary, in part, because Commissioner Martens requested and Dr. Shah agreed to provide an additional review, in consultation with outside experts, of whether DEC has adequately addressed potential impacts to public health. This filing with the Department of State merely extends the rulemaking period to enable Dr. Shah to complete his review and DEC time to take into account the results of Dr. Shah’s review and continue to consider the potential impacts of high-volume hydraulic fracturing.
In order to receive the needed extension, DEC was required by law to refile the draft regulations along with responses to public comments received during the public comment period, and preliminary revisions, responsive to those comments. The refiled rule does not reflect current DEC policy with respect to whether or not hydraulic fracturing can be done safely in New York. That determination will be based on the findings of the environmental impact statement and Dr. Shah’s public health review of that document.
DEC will not take any final action or make any decision regarding hydraulic fracturing until after Dr. Shah’s health review is completed and DEC, through the environmental impact statement, is satisfied that this activity can be done safely in New York State.
If DEC decides that hydraulic fracturing cannot be safely done in New York, these regulations will not have any practical effect and the process will not go forward. If DEC decides that the process can be done safely, these regulations would be adjusted in accordance with the health and safety requirements and issues addressed in the Supplemental Generic Environmental Impact Statement.
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