The Manner and Timing with Which the Revised Regulations Were Released for Comment Causes

The manner and timing with which the revised regulations were released for comment causes the entire process to be fatally flawed for the following reasons:

• The findings of the final SGEIS should have been made available before or simultaneously with the revised regulations, with sufficient time for the public and the industry to read and understand the final SGEIS plus sufficient time to comment on the revised regulations.

• Even if the public and the industry had the benefit of a final SGEIS, thirty days during a period with two major holidays is simply insufficient time to comment properly on regulations that are based on several years’ worth of submissions and draft documents.

• Without the findings contained in the final SGEIS, neither the public nor the industry has any way of knowing what the New York State Department of Environmental Conservation (the Department) has covered in the SGEIS; what additions, deletions or changes will be made from the revised draft SGEIS (rdSGEIS); or what specific areas of the final SGEIS the Department intends to include in permitting conditions. This makes intelligent commenting on the revised regulations virtually impossible. Comments must be based on guesses about findings that may or may not be contained in the final SGEIS.

• Without having the findings of the final SGEIS, it is impossible for the public and the industry to put forth reasons for some items being codified in the regulations and not left for permit conditions.

• The draft SGEIS of 2009 and the revised draft SGEIS of 2011 had the same topicmentioned in more than one place sometimes with different wording. No one knows whether the final SGEIS will have similar areas of ambiguity. Without a final SGEIS, the public and the industry have no basis to propose clarifying some of those topics in the regulations.

• Without a final SGEIS, the public and the industry have no way to determine whether there are any gaps between the 1992 GEIS and the final SGEIS and therefore no basis to comment about how such gaps might be addressed in the revised regulations.

• By receiving comments on the revised regulations before the final SGEIS is published, the Department has given itself the opportunity to review public comments on the revised regulations, accept those that it wishes to accept, and “adjust” the final SGEIS to support those changes in the revised regulations that the department wishes to accept. Any procedure that does not protect against such manipulation is fatally flawed.

• For the foregoing reasons, the revised regulations should be withdrawn and reissued for comments after a final SGEIS has been published.

Notwithstanding the foregoing reservations, I offer the following comments on specific portions of the revised regulations.I also point out omissions from the revised regulations. Each comment should be considered as a separate individual comment, as if it had been submitted in a separate letter. The acceptance or rejection of any individual comment should not in any way affect the consideration given to any other comment. Specific recommendations are included as boldface bullets.

Comments on qualifications of owner/operators and contractors - Part 551.1(a)(1) through (7)

Each person who is a principal or acts as an agent for another in any of the following activities within the State must file an organizational report on a form the department prescribes:

(1)solution mining;

(2)drilling, deepening, plugging back or converting oil, gas, solution mining or storage well or wells, or drilling, deepening, plugging back or converting stratigraphic, geothermal or disposal well or wells greater than a true vertical depth of 500 feet;

(3)the production in the State of oil and gas;

(4)the first purchase of oil and gas produced in the State;

(5)the underground storage in the State of gas;

(6)the practice of well abandonment and salvage of oil and gas subsurface equipment; or

(7)the first transportation of oil and gas produced in the State.

That information is gathered on form 85-15-12 (6/07)-28b which requires little more than the name, address and phone number of the entity and agent, as well as names and titles of director and officers and names of persons authorized to sign submittals to the Department.

There is no requirement for such information from persons engaged in hydraulic fracturing activities.

There is no place in the revised regulations or the proposed permitting conditions of the rdSGEIS of 2011 where information is gathered on the qualifications or experience of persons or entities engaged in any of these activities.

There is no place in the revised regulations or the proposed permitting conditions of the rdSGEIS of 2011 where information is gathered by the Department on the safety record of persons or entities engaged in any of these activities.

• The Department should include drilling and hydraulic fracturing in the activities on which data is collected.
• The Department should expand the information collected so as to assure that persons or entities conducting these activities in New York State have adequate prior experience.
• The Department should require sufficient information on previous safety-related incidents to assure that persons or entities conducting these activities in New York State have not been cited for safety violations.

Comments regarding the pace of HVHF development – Not Addressed in The Revised Regulations

The revised draft SGEIS of 2011 (the latest version available at the time of these comments) states, “Through its permitting process, the Department will monitor the pace and concentration of development throughout the state to mitigate adverse impacts at the local and regional levels. The Department will consult with local jurisdictions, as well as applicants, to reconcile the timing of development with the needs of the communities. Where appropriate the Department would impose specific construction windows within well construction permits in order to ensure that drilling activity and its cumulative adverse socioeconomic effects are not unduly concentrated in a specific geographic area.” (Revised Draft SGEIS 2011Section 7.8, Pages 7-120/121)

This is a critical part in avoiding some of the most egregious environmental and socioeconomic impacts of drilling and related activities. Without ensuring that such activities are not unduly concentrated simultaneously in a specific geographic area, communities in New York State could be overwhelmed by a sudden influx of drilling and related projects such as pipelines and processing plants. There is nothing in the revised regulations that addresses the Department’s role in the “pace and concentration of development”, or that would provide the Department with the information necessary to implement this much-needed protection.

The Department’s permitting procedure requires an application for one well at a time. There is no process established in the revised regulations; in the Proposed Environmental Assessment Form Addendum I Appendix 6 of the 2011 rdSGEIS; or in the Proposed Supplementary Permit Conditions for High-Volume Hydraulic Fracturing in Appendix 10 of the rdSGEIS of 2011, whereby the department can obtain the information necessary to assure that cumulative adverse environmental and socioeconomic effects are not unduly concentrated in a specific geographic area within a short period of time.

There is nothing in the revised regulations or the rdSGEIS to require owner/operators to provide any information on what other wells and or infrastructure are contemplated in the same time frame as the individual well that is the subject of a permit application. Furthermore, there is no procedure for the Department to gather information from other owner/operators who might be planning wells in the same area at the same time as a well that is the subject of a permit application, nor is there is any procedure to gather information on infrastructure, including pipelines, processing plants and compression stations, that might be planned in the same time period.

The Department needs to build into its permitting process the gathering of enough information to assure that the objectives of section 7.8 of the rdSGEIS are met. This should include clear requirements in the regulations and in the Proposed Environmental Assessment Form Addendum that owner/operators must provide:

• A listing for the following two years of all its planned wells within 25 miles of the permit application well;
• A listing of all access roads, water impoundments, gathering systems, pipelines, treatment plants, compression stations, laydown yards, man camps, etc. that are planned (whether to be owned and/or operated by the owner/operator of the well or by others) in association with the planned wells. This should include copies of any application or submission to the Public Service Commission with regard to such infrastructure.
• A listing of any facilities that the owner/operator plans to own, operate or use in conjunction with other owner/operators within 25 miles of the permit application well.

• The Department should develop a procedure to assure that all owners/operators who plan to operate in the same or overlapping geographic areas provide the Department with enough information about the timing and extent of their forward plans to enable the Department to implement the intent of Section 7.8 of the rdSGEIS.
• The Department should also develop procedures for rejecting or requiring modification of plans to ensure that drilling activity and its cumulative adverse socioeconomic effects are not unduly concentrated in a specific geographic area.

Comments regarding setbacks from dwellings,water wells or springs for residential or livestock use, and places of assembly- Part 560.4(a)(1) and (2) and Part 560.4(c)

The revised regulations specify a setback distance of 500 feet from inhabited dwellings. Numerous localities in other states require greater setbacks, and some setbacks have been increased since oil and gas drilling using high volume hydraulic fracturing in shale began. The following are a few examples taken from readily available public information.

Places of

Houses Assembly Others

Flower Mound, TX 1500’ 1500’ 750’ from property line

Midland, TX 1320’ 1320’

Southlake, TX 1000’ 1000’ 1000’ from property line

Colleyville, TX 1000’ 1000’

Lewisville, TX 800’ 800’

Santa Fe County, NM 750’ 750’ 600’ from property line

Rio Arriba County, NM 650’ 1000’

Common sense alone says that 500 feet from an inhabited dwelling to a well pad is totally inadequate. The revised draft SGEIS of 2011 describes in detail many of the industrial activities that occur at a well pad, including the large numbers of trucks required for each well; the noise and light pollution; the handling of many chemical additives; and the use of high pressure equipment. All or portions of these activities may continue for long periods of time. The Department’s attempts to mitigate these and other dangers may not be successful in all cases. Substantial setback distances are required to assure the health and safety of those who must live near a well pad. The people of New York State deserve as much protection as people who live in other states.

• The Department should significantly increase the setbacks of well pads from inhabited dwellings to at least 1,000 feet. 1,500 feet would be better.

The revised regulations also specify a setback distance of “500 feet from a residential water well, a domestic supply spring or water well or a water well or spring used as a water supply for livestock or crops”. Such water supplies in proximity to a well pad are subject to the impact of all of the industrial activities that occur at a well pad, including the large numbers of trucks required for each well, the handling of many chemical additives, and emissions of volatile hydrocarbons and other gasses. Again, all or some of these activities may continue for long periods of time. Consequently, substantial setback distances are critical, both for persons living in a dwelling served by a domestic water supply and for the protection of the ultimate consumers of meat or produce from the area served by a well or spring used as a water supply for livestock and crops.

• The Department should increase the setbacks of well pads from a residential water well, domestic supply spring or water well, or spring used as a water supply for livestock or crops to at least 1,000 feet. 1,500 feet would be better.

The variances in Part 560.4(c) would apply to setback distances from domestic water supplies and water supplies for livestock and crops; and to setback distances from inhabited dwellings (or places of assembly, which I intend to cover in a separate comment letter). It is critical that safe distances be maintained between these places and all activities associated with site preparation through partial reclamation after drilling. The Department, in the revised regulations, proposes to allow the landowner of such places (with the consent of all tenants in a dwelling) to agree to a waiver reducing the setback distances. The landowner’s consent to a waiver is likely to be obtained through monetary inducements from the well owner/operator.

For an occupied dwelling and its domestic water supplies, a waiver of the setback distance could subject persons who are not owners or tenants, including other family members, long-term guests, minor children, or persons who are not competent to make decisions in such matters, to increased risks through exposure to drilling-related activities.

• The Department should specify that waivers of setback distances for dwellings that will remain inhabited will be allowed only if all inhabitants, whether or not they are owners or tenants, are competent and of legal age and agree to the waiver in writing.

• For of domestic water supplies to dwellings that will remain inhabited, the Department should specify that waivers of setback distances will be allowed only if all inhabitants are competent and of legal age and agree to the waiver in writing.

For water supplies for livestock and crops, there is no way for the ultimate consumer of meat, dairy products or produce from the livestock or crops to deny consent to a waiver of the setback distance which would expose the food they consume to the impacts of drilling related activities.

• The Department should remove from the revised regulations the provision for waivers of setbacks from water wells or springs used as a water supply for livestock or crops.

In the case of places of assembly, most occupants, visitors and users are not the landowner. They may be patients in hospitals; occupants of nursing homes; children in school or on playgrounds and sports fields; families using parks; visitors to libraries; parishioners in churches; workers in factories, offices, public buildings and stores; customers in stores or at farmer’s markets; visitors to public buildings; or people in many similar places.

• The Department should clarify that “places of assembly” includes all locations, whether privately or publicly owned, whether indoors or outdoors, at which people assemble for any reason.

The revised regulations specify a setback distance of 500 feet from a place of assembly. As shown above, readily available public information indicates thatlocalities in other states require greater setbacks, and some have been increased since fracturing in shale began. Given the industrial nature of drilling operations and the lack of choice that many people have in places of public assembly,500 feet from a place of assembly to a gas well pad is totally inadequate. The people of New York State deserve as much protection as people who live in other states.

• The Department should increase the setbacks of well pads from places of public assembly to at least 1,000 feet. 1,500 feet would be better.

In Part 560.4(c), the Department proposes to allow the landowner of places of assembly to agree to a waiver reducing the setback distance. The landowner’s consent to a waiver is likely to be obtained through monetary inducements from the owner/operator of a proposed oil or gas well. In many cases the occupants or visitors to places of assembly (a few of which are noted above) have little or no choice about the location or time of their presence. Under the proposed regulations, none of the people who use the many different types of places of assembly, except for the landowner, would have an opportunity to deny consent to the additional exposure to drilling and hydro-fracturing-related activities to which a waiver of the setback distance might subject them.

• The Department should remove from the revised regulations the provision for waivers of setbacks of well pads from places of assembly.

Comments regarding setbacks from floodplains- Part 560.4(a)(4) and Part 750-3.3(a)(3)

Part 560.4(a)(4) and Part 750-3.3(a)(3) of the draft regulations prohibits the location of a well pad within a 100-year floodplain. This provision is inadequate for several reasons.The 100-year flood standard has been breached three times in upstate New York over the last five years, indicating that currently designated floodplain maps are sorely out of date. This clear trend toward more flooding and extreme flooding events in watersheds of the Delaware River and Susquehanna River poses an enormous risk if drilling is allowed. Without accurate floodplain maps, the DEC could permit drilling in areas that are now effectively floodplains, based on the 2006, 2010, and 2011 events. The DEC even notes in the 2011 rdSGEIS that the 100-year floodplain maps need to be updated. By failing to require that this happen before drilling is authorized, the DEC is consciously condoning the use of bad data and thus putting people, the environment, land, and livelihood in serious jeopardy. (More accurate maps have been prepared for Broome County, but this has not yet occurred in other potential drilling areas.)