THE ASSEMBLY STATE OF NEW YORK

CHAIR Assembly Steering Committee

COMMITTEES

ALBANY
BARBARA LIFTON Member of Assembly th 125 District

Agriculture Election Law Environmental Conservation Higher Education Mental Health Legislative Commission on Rural Resources

January 11, 2012 Attn: dSGEIS Comments New York State Department of Environmental Conservation 625 Broadway Albany, NY 12233-6510

Dear Commissioner Martens:

Please consider the following comments on the New York State Draft Supplemental Generic Environmental Impact Statement (dSGEIS). I am submitting these comments on behalf of concerned constituents of my district in Tompkins and Cortland counties. Since 2008, the NYS Department of Environmental Conservation (DEC) has been working on an update to the 1992 Generic Environmental Impact Statement governing the state Oil, Gas and Solution Mining Regulatory Program. New York plans to issue its final High-Volume Hydraulic Fracturing (HVHF) permit guidelines and regulations pending review of all public comments submitted by January 11, 2012. However, there are numerous shortcomings in the current draft SGEIS, which warrant an immediate injunction on DECs rule-making to gather information required by the State Environmental Quality Review Act (SEQRA) and to correct existing flaws in the document which, in my view, are not supported by the record and in-depth research. The September 2011 dSGEIS fails to adequately address HVHF concerns which are already occurring in New York and ignores concerns from other states due to use of the same HVHF shale gas extraction technology. Broadly, hydraulic fracturing has been linked to the following adverse impacts which do not receive adequate attention by the NYDEC or other relevant agencies: 1) potential health impacts, 2) wastewater treatment and disposal, 3) the effect of gas drilling on the mortgage and real estate markets, 4) a balanced socio-economic assessment, and 5) climate change.

Each one of these potential impacts could cause great harm to the lives and interests of New Yorkers, and I urge that the precautionary principle guide all decisionmaking about hydraulic fracturing in New York State. Accordingly, the DEC, in this document, had the obligation to undertake a comprehensive review as required by SEQRA and Governor Patersons Executive Order #41, continued by Governor Cuomo. Thus, I submit these comments on the Draft Supplemental Generic Environmental Impact Statement.

I.

The DEC must exercise its management authority over the environment of New York State to conserve, improve and protect its natural resources and to ensure the health, safety and welfare of all New Yorkers. A. The DEC has a duty to first and foremost protect the states environmental resources as required by the Environmental Conservation Law (ECL) and to adequately follow the State Environmental Quality Review Act (SEQRA) process.

Under ECL Article 1 1-1010(1), the DEC is obligated to conserve, improve and protect its natural resources and environment and to prevent, abate and control water, land and air pollution, in order to enhance the health, safety and welfare of the people of the state. 1 In fact, the dSGEIS recognizes this fact, noting on page 1-3 that the Departments broad authority mandates both protection and prevention of waste of resources.2 ECL 1-0101(3) clarifies that: It shall further be the policy of the state to foster, promote, create and maintain conditions under which man and nature can thrive in harmony with each other, and achieve social, economic and technological progress for present and future generations.3 This imposes a duty to craft policy that is forwardlooking, ensuring the existence of high quality natural resources and economic opportunities that are not detrimental in the long term for this generation and all future generations. HVHF, using current technology, is violative of this critical balance between health, safety, the sanctity of our natural world (which also brings in billions of tourism dollars across NY), and a stable, growing, economic sector which can be relied upon by New Yorkers for gainful employment in perpetuity. HVHF achieves none of these overarching state policy objectives. Without adequate assurance that the risks are not too great, and the economic opportunity is not short-lived and outweighed by costs to local

1 2

N.Y. ENVTL. CONSERV. LAW 1-1010(1) (1970) N.Y. DEPT ENVTL. CONSERV., Draft Supplemental Generic Environmental Impact Statement (dSGEIS) at 1-3 (proposed Sept. 2011), available at http://www.dec.ny.gov/energy/75370.html 3 N.Y. ENVTL. CONSERV. LAW 1-1010(3) (1970)

governments, reduction in property values and technical mortgage violations, HVHF should not go forward in NYS. Naturally, any effort to determine whether HVHF can be done safely and is economically beneficial requires the most up to date research and information. In its current form, the dSGEIS uses old, inaccurate, and often one-sided data, which leads the reader to have a positive opinion of shale gas drilling, despite numerous studies and reporting of some very serious, unresolved issues surrounding almost every aspect of HVHF. Indeed, under SEQRA 617.9(a)(7)(i)(b), a supplemental EIS may be undertaken, in part, to cover the specific significant adverse environmental impacts not addressed or inadequately addressed in the EIS that arise from newly discovered information4 Unfortunately, to date, the dSGEIS has ignored much of the newly discovered information and has relied on projections and reports which are no longer credible in 2012. Based on information from 2008, the initial scope of the SGEIS is now woefully outdated.5 At the time, many issues related to the possibility of hydraulic fracturing in NY were simply not known, and are still not well understood. Governor Patersons Executive Order #41, issued on December 13, 2010, reiterates that the DEC must perform its analysis comprehensively and ensure to protect public health and the environment, in an apparent recognition that these basic duties required by ECL 11010 and SEQRA were missing from the dSGEIS.6 The basic foundation of the dSGEIS has a lack of independent scientific data from government sources or respected academic studies. On page 1-5, the dSGEIS states that the DEC looked to only two sources for its initial review: permit requests filed by companies seeking the right to hydrofracture in NY, and data supplied by the Independent Oil and Gas Association of New York (IOGANY).7 This limited and onesided approach to crafting a regulatory framework which significantly impacts the health and livelihood of New Yorkers is unacceptable. Relying extensively on information supplied by groups with a direct conflict of interest and who stand to profit the most from gas drilling in New York, and the exclusion of recent academic studies and hard data from nearby Marcellus shale operations, indicates a deep flaw in the methodology employed by the DEC. More details on outdated information will appear throughout these comments. Additionally, the decision to ask for concurrent public review of the dSGEIS and the proposed DEC regulations created undue hardship for all citizens who wished to thoroughly review and assess how major industrial scale gas drilling could impact their daily lives. It is especially problematic for residents of the Southern Tier who faced
4

State Envtl. Quality Review Act (SEQRA) 617.9(a)(7)(i)(b), available at http://www.dec.ny.gov/regs/4490.html#18102 5 dSEGIS at 1-4. 6 Exec. Order No. 41 (Dec. 13, 2010), available at http://www.governor.ny.gov/archive/paterson/executiveorders/EO41.html 7 dSEGIS at 1-5.

devastating floods this summer and are just now beginning to reclaim their lives. While not in conflict with SEQRA law, consolidation of the review time does not instill confidence in a transparent process over the highly-divisive issue of HVHF in NY. Per SEQRA implementing regulations, the DEC is using a generic EIS process to assess the environmental impacts of separate actions having similar types of impacts.8 Yet, in the Departments own document, it is frequently cited that the unknown pace, scale, and location of drilling make calculation of cumulative impacts impossible, and that the uncertainty of specific geologic characteristics make it unclear what types of impacts will occur at any given well pad. Are these impacts similar enough to warrant the application of a generic EIS? Based on language in the dSGEIS, it appears that insufficient data is available to validly make that determination. I strongly question whether it is appropriate to issue permits under a generic impact assessment that allows for drilling in a region that is geologically prone to methane migration, other contamination, or environmental degradation.

B. The Draft Supplemental Generic Environmental Impact Statement must adequately protect state water resources at risk of contamination from fracking fluid chemicals, while minimizing the impact to drinking water supplies and ecologically-important surface waters.

One of the biggest risks of hydraulic fracturing -- involving the injection of hundreds of thousands of gallons of chemicals, many known to be harmful to human health, and many as-yet-unresearched is the potential to contaminate New Yorks water supplies. Indeed, Governor Cuomo recognized how critical a threat to water really is in his 2010 campaign book, Power NY: The New NY Agenda vol. 2, stating: existing watersheds are sacrosanct and Andrew Cuomo would not support any drilling that would threaten the States major sources of drinking water.9 Accordingly, in order to reduce risk, the SGEIS and proposed regulation 750-3.3(b)(1) calls for a complete prohibition on HVHF in the New York City and Skaneateles Lake watersheds.10 Due to their water purity, these watersheds have a Filtration Avoidance Determination (FAD), granted by the EPA, eliminating the need for water treatment plants for New York City and Syracuse. For its rationale, the SGEIS states: even with all of the criteria and conditions identified in the revised draft SGEIS, a risk remains that significant high-volume hydraulic fracturing activities in these areas could result in a degradation of drinking water from accidents, surface spills, etc.11 Tellingly, this language shows that serious risks to drinking water remain, despite efforts to properly regulate the industry.
8 9

Id. at 3-1; SEQRA 617.10(a). ANDREW CUOMO, POWER NY: THE NEW NY AGENDA VOL. 2 92 (2010), available at http://www.andrewcuomo.com/system/storage/6/89/e/798/andrew_cuomo_power_ny.pdf 10 dSGEIS at 7-5 ; 6 NYCRR 750-3.3(b)(1) (proposed Oct. 2011), available at http://www.dec.ny.gov/regulations/77383.html 11 dSGEIS at 6-52.

After this recognition that HVHF poses enough of a risk to prohibit drilling in a buffer zone extending 4,000 feet from these key NY watersheds, clearly the rest of New York deserves the same protection for its surface and groundwater. In fact, SGEIS policy emphasizes: [t]he protection of drinking water sources and supplies is extremely important for the maintenance of public health, and the protection of this water-use type is important.12 Accordingly, contamination of unfiltered private well water across NY faces the same risks as the FAD watersheds, and surface waters can suffer severe degradation from uncontained blowouts. The severe impacts of contamination can lead to health problems and tremendous diminution of property value.13 While the health risk may be understood in general by the DEC, in relation to fracturing fluid the SGEIS states:
[t]oxicity testing data is quite limited for some chemicals, and less is known about their potential adverse effects. there is little meaningful information one way or the other about the potential impact on human health of chronic low level exposures to many of these chemicals, as could occur if an aquifer were to be contaminated as the result of a spill or release that is undetected and/or unremediated. 14

The lack of health data simply requires New Yorkers to bear an unacceptable level of risk. There must be a comprehensive health study of methane, lead, barium and other heavy metals, excessive chloride, radionuclides, as well as possible fracturing fluid chemicals and their effects on human health. Numerous cases of barium poisoning have been reported in Pennsylvania, and despite the PADEPs denial that drilling was the cause of the sickness, lawsuits are ongoing. In addition, recent articles have brought to light the inadequacy of Pennsylvanias enforcement and data collection, so their conclusions bear further review.15 Until we know more about the very serious occurrence of barium in drinking water and its relation to HVHF, or other possible negative health effects, New York should not put its residents at risk of major health problems. Note the occurrence in 2005 of several wells in western New York which may have been polluted by nearby gas well drilling operations. Several homeowners experienced diminished water quality shortly after commencement of drilling in the region, and referred their complaints to the local health department. A letter from the Chautauqua County Water Resource Specialist, referring the case to the NYDEC, stated: "[t]his is a well-documented case showing drinking water impacts that are seemingly related to gas well development. the Chautauqua County Department of Health requests that your Division thoroughly investigate to identify the cause of
12 13

Id. at 2-13 Eliza Griswold, The Fracturing of PA, N.Y. TIMES, Nov. 17, 2011. available at http://www.nytimes.com/2011/11/20/magazine/fracking-amwell-township.html 14 dSGEIS at 5-75. 15 Laura Legere, DEP: Cabot Drilling Caused Methane in Lenox Water Wells, SCRANTON TIMES-TRIBUNE, Jan 9 2012, available at http://thetimes-tribune.com/news/dep-cabot-drilling-caused-methane-in-lenoxwater-wells-1.1255056#axzz1iWVRk5ly Report: PA Data MissingNearly 500 Gas Wells, ITHACA J., Jan 9 2012 , available at http://www.theithacajournal.com/apps/pbcs.dll/article?AID=2012120109021

contamination16 However, the push for more investigation was fruitless, and the DEC doubted the connection to gas drilling, despite urging by county officials.17 Such a response to claims of water contamination belies the deference and authority granted to local health agencies in the 1992 GEIS, again referenced in the September 2011 dSGEIS, which clarifies: [t]he initial response to water supply complaints is best handled by the appropriate local health office, which has expertise in dealing with water supply problems.18 After the first response and assessment by the local authorities, any complaint which is referred to the DEC must, per SGEIS policy, undergo [s]ampling and analysis to verify and evaluate the problem according to protocols that are satisfactory to the county health department, with advice from NYSDOH as necessary.19 It does not boost confidence in state regulatory oversight if investigations into serious health concerns are not conducted according to appropriate standards, as with the case in Chautauqua County Concerns over groundwater and surface water contamination from HVHF abound. The award-winning documentary, Gasland, highlights shocking and disastrous consequences to water supplies in communities across the nation where HVHF has occurred. Just across state lines, in Pennsylvania, the community of Dimock has been shattered by contaminated groundwater, which the state Department of Environmental Protection has not adequately monitored or responded to. Industry repeatedly claims that HVHF can be done safely, but when Josh Fox, the director of Gasland, asked those same industry officials where he might go, anywhere in the country, where there werent serious problems with water or health, they offered him no places for him to film. We must not allow for the same violations of our precious water resources in New York. Methane migration resulting in contaminated water has been proven in Dimock, PA, but due to the lack of pre-drilling well water testing, the exact source of the gas in drinking water has been difficult to pinpoint.20 Can methane contamination occur naturally? Yes, although an April 2011 study published by Duke University documents systematic evidence for methane contamination of drinking water associated with shale gas extraction [i]n active gas extraction areas (one or more gas wells within 1 km), average and maximum methane concentrations in drinking-water wells increased with proximity to the nearest gas well.21 Unfortunately, the NYDEC makes light of the Duke report in the SGEIS, seeking to quell concerns with the following general statement: Methane contamination of groundwater is often mistakenly attributed to or blamed on
16

Liz Lawyer, Residents Fault DEC Over Claims of Gas Drilling Impact on Water Wells, ITHACA J., Nov 2, 2011, available at http://www.theithacajournal.com/article/20111102/NEWS01/111020368/Residentsfault-DEC-over-claims-gas-drilling-impact-water-wells 17 Id. 18 dSGEIS at 7-48. 19 Id. 20 Susan Philips, Flaming Taps: Methane Migration and The Fracking Debate, STATE IMPACTS, Dec. 19, 2011, available at http://stateimpact.npr.org/pennsylvania/2011/12/19/flaming-taps-methane-migrationand-the-fracking-debate/ 21 Stephen G. Osborn, Avner Vengosh, Nathaniel R. Warner, and Robert B. Jackson, Methane Contamination of Drinking Water Accompanying Gas-well Drilling and Hydraulic Fracturing, 108 PROC. NATL ACAD. SCI. U.S. 8172 (2011), available at http://www.nicholas.duke.edu/cgc/pnas2011.pdf

natural gas well drilling and hydraulic fracturing [t]here are a number of other, more common, reasons that well water can display sudden changes in quality and quantity. Seasonal variations in recharge, stress on the aquifer from usage demand, and mechanical failures are some factors that could lead to degradation of well water.22 The document then cites two anecdotal cases in the towns of Elmira and Collins, which have never seen HVHF, showing that methane existed in water supplies before drilling operations began in the vicinity.23 But this assessment wholly misses the relevancy of the study. Of course, individual areas are going to have different geological characteristics, different levels of naturally occurring methane, and different reasons for possible contamination (such as faulty well construction). However, the Duke studys conclusion remains relevant regardless of its applicability to every occurrence. Federal regulation over HVHF is minimal, at best, as the industry enjoys exemption from hazardous waste classification under the Resource Conservation and Recovery Act (RCRA) and fracturing wells are not subject to the Safe Drinking Water Act (SDWA).24 There is an obvious need to understand the prevalence of methane contamination from gas drilling operations; anecdotal evidence from one situation to another is unacceptable. As the health effects of such contamination are not well understood, there also must be greater emphasis on a comprehensive health study. It is the citizens of New York who will pay the costs with their health, with their livelihood, and with the destruction of their property value -- for many their main life-long investment should contamination occur. Also of great concern to New Yorkers, is the release of the EPAs Draft Research Report: Investigation of Ground Water Contamination near Pavillion, Wyoming on December 5, 2011.25 This study is the culmination of three years of groundwater sampling and research in Pavillion, performed by the EPA under authority of the Comprehensive Environmental Response, Compensation, and Liability Act (CERCLA), otherwise known as Superfund law.26 The study began in early 2008 at the request of local residents, who found their water quality to be compromised with foul odor and taste following HVHF in the area, and wanted information.27 Preliminary data from deep monitoring wells indicates detection of synthetic chemicals, like glycols and alcohols consistent with gas production and hydraulic fracturing fluids, benzene concentrations well above Safe Drinking Water Act standards and high methane levels. And further, [g]iven the areas complex geology and the proximity of drinking water wells to ground water contamination, EPA is concerned about the movement of contaminants within the aquifer and the safety of drinking water wells over time.28 For public and private water
22 23

dSGEIS at 4-37 Id. at 4-38 24 Osborn at 4. 25 U.S. ENVTL PROT. AGENCY, Draft Research Report: Investigation of Ground Water Contamination Near Pavillion, Wyoming, (Dec. 2011) Available at http://www.epa.gov/region8/superfund/wy/pavillion/EPA_ReportOnPavillion_Dec-8-2011.pdf 26 Id. at 1 27 Id. 28 Press Release, U.S. ENVTL PROT. AGENCY, EPA Releases Draft Findings of Pavillion, Wyoming Ground Water Investigation for Public Comment and Independent Scientific Review, (Dec. 8, 2011), available at http://yosemite.epa.gov/opa/admpress.nsf/20ed1dfa1751192c8525735900400c30/ef35bd26a80d6ce385257 9600065c94e!OpenDocument

sampling, the EPA found that [c]hemicals detected in the most recent samples are consistent with those identified in earlier EPA samples and include methane, other petroleum hydrocarbons and other chemical compounds. And further, [t]he presence of these compounds is consistent with migration from areas of gas production [but] [d]etections in drinking water wells are generally below established health and safety standards.29 While the investigation has not been finalized, and the draft report has a public comment period running through January 27, 2012, the discovery of toxic fracking fluid chemicals in well water anywhere raises a chilling reality about the safety of HVHF. To be sure, the investigation makes clear that the findings are unique to the Pavillion area and stops well short of a blanket statement condemning HVHF across the globe, but, given the statements by the NYDEC in the dSGEIS, it is clear that despite ongoing laboratory and field experimentation, the mechanisms that limit vertical fracture growth are not completely understood and that [t]he Marcellus fairway in New York is expected to have less formation thickness, and because there has not been horizontal Marcellus drilling to date in New York the reservoir characteristics and production performance are unknown, it is reasonable to believe that significant unknowns exist about the exact nature of the NY Marcellus shale play, and what that may mean for well contamination.30 With insufficient research about the possibility of migration of both methane and fracking fluid, a reality indicated by the EPA study, there is too great a risk to the health of New Yorkers to proceed with HVHF. New York should immediately halt the rulemaking process for hydrofracking and withdraw the SGEIS, until the results of the EPA Pavillion study, the separate EPA Study of Hydraulic Fracturing and Its Potential Impact on Drinking Water Resources31, as well as ongoing investigations by NY Attorney General Eric Schneiderman32 and the federal Securities and Exchange Commission into the financial records and practices of several shale gas companies.33 Of course New York should not move closer to approving a gas drilling technique which faces so many serious state and federal investigations. Citizens across the state will be impacted if the DEC allows HVHF without final results of these critical reports. Under SEQRA provisions the DEC must analyze the significant adverse impacts and evaluate all reasonable alternatives,34 to a final agency decision (i.e. the permitting of HVHF) with a description and evaluation of the range of reasonable alternatives to
29 30

Id. N.Y. DEPT ENVTL. CONSERV., Draft Supplemental Generic Environmental Impact Statement (dSGEIS) at 5-9, 5-139 31 U.S. ENVTL PROT. AGENCY, Study of Hydraulic Fracturing and Its Potential Impact on Drinking Water Resources (Nov. 2011), available at: http://www.epa.gov/hfstudy/ 32 Ian Urbina, New York Subpoenas Energy Firms, N.Y. TIMES, Aug. 18, 2011, available at http://www.nytimes.com/2011/08/19/us/19gas.html 33 Ian Urbina, Regulators Seek Records On Claims for Gas Wells, N.Y. TIMES, July 29, 2011, available at http://www.nytimes.com/2011/07/30/us/30gas.html 34 State Environmental Quality Review Act (SEQRA) 617.9(b)(1), available at http://www.dec.ny.gov/regs/4490.html#18102

the action that are feasible, including alternative technology.35 Unfortunately, the SGEIS rejects the possibility of using non-toxic chemicals in fracturing fluid, which, if done successfully (and not subject to a regrettable substitution of other harmful chemicals) could help to alleviate some of the concerns about HVHF. However, the DEC chooses not to compel world-leading entrepreneurial innovation in safer fracturing fluid, but rather waits until clearer evidence emerges that the use of green chemicals can provide reasonable alternatives as the appropriate technology36 as the manufacturers of these green alternatives point out that they are not effective under some conditions.37 So, in the dSGEIS, the state prefers to allow the use of unresearched toxic chemicals, rather than demand a higher standard of safety for the people and environment of New York. In light of the recent contamination cases, this is unacceptable. C. The DECs proposed methods to treat wastewater from HVHF operations are inadequate, and the state must issue no permits without a solution. In February of 2011, The New York Times published a revealing article on the struggle of Pennsylvania authorities to safely manage and dispose of millions of gallons of toxic and radioactive fracking wastewater.38 Sewage treatments plants are not equipped to process the radioactive material present in fracking wastewater, and with prolonged exposure, the facility equipment may corrode due to the high chloride content of flowback and produced water. Most shockingly, release of treated water into the Monongahela River in the summer of 2008 lead the EPA to require all Pittsburgh residents to drink only bottled water, as the level of radionuclides exceeded the allowable federal drinking water level.39 An internal EPA memo called this event one of the largest failures in U.S. history to supply clean drinking water to the public.40 Clearly a similar public health scandal in New York must never happen. Given this known inability of treatment plants to handle fracking flowback, why does the DEC allow for processing at Publicly Owned Treatment Works (POTWs)? The letter sent to Governor Cuomo on September 15, 2011 by the Physicians, Scientists and Engineers for Healthy Energy, signed by 59 top scientists from around the world, attests to the inability of existing water filtration systems to protect against hydraulic fracturing waste water.41 Other proposed disposal methods also cause problems. Under the 1992 GEIS, the use of disposal wells for brine in New York is regulated using a site-specific SEQRA

35 36

State Envtl. Quality Review Act (SEQRA) 617.9(b)(5)(v)(b). N.Y. DEPT ENVTL. CONSERV., Draft Supplemental Generic Environmental Impact Statement (dSGEIS) at 9-10. 37 Id. 38 Ian Urbina, Regulation Lax as Gas Wells Tainted Water Hits Rivers, N.Y. TIMES, Feb. 26, 2011, available at http://www.nytimes.com/2011/02/27/us/27gas.html 39 Id. 40 Id. 41 Letter from Physicians Scientists and Engineers for Healthy Energy, to Governor Andrew Cuomo (Sept. 15, 2011) available at http://psehealthyenergy.org/data/Sign_on_letter_Final.pdf

determination.42 Accordingly, injection is not proposed for widespread use in the 2011 generic EIS supplemental update. However, even if New York does not allow for underground injection disposal of brine and fracking waste in state, it means that another state will accept the waste, but at what cost? Underground injection wells have been problematic all across the country, with numerous states concluding that the pressurized waste underground frequently causes earthquakes. In July, the Arkansas Oil and Gas Commission voted 7-0 to shut down disposal wells and ban future disposal wells in a 1,150 square mile area in central Arkansas.43 The region experienced hundreds of small earthquakes, with the most powerful at 4.7 magnitude on February 27, 2011.44 In Oklahoma, the state faced, on average, 50 small tremors a year, until 2009 when the number spiked to over 1,000 a year with a peak magnitude of 5.6 in November of 2011.45 More recently, on December 31, 2011, a 4.0 magnitude quake shook Northeastern Ohio, leading to closure of the related injection disposal well.46 As Ohio is the closest and cheapest destination to deliver any future NY fracking wastewater for disposal, it is safe to say that injection wells in Ohio would receive some of our waste. That is, if they even allow for underground injection following the increasingly severe quakes. As states move to restrict the use of underground injection wells, it is clear that New York cannot count on use of these wells for disposal in the future. The questionable ethics of allowing transport of our wastewater to states with more lax environmental standards aside, neither underground injection wells nor POTWs can provide for adequate wastewater treatment going forward. Another disposal method for fracking brine, as allowed under the 1992 GEIS, is the spreading of this fluid on roadways to melt snow and ice in the winter.47 Thankfully, in the 2011 dSGEIS, the DEC is sufficiently concerned about the concentration of Naturally Occurring Radioactive Material (NORM) in produced brine to declare that the data available to date associated with NORM concentrations in Marcellus Shale production brine is insufficient to allow road spreading under a BUD (Beneficial Use Determination).48 Despite this caution, as recently as April 2010, DEC granted permits to allow for several upstate municipalities to spread brine from vertical wells drilled in western NY.49 Based on brine characteristics in the 1992 GEIS, it is very likely that this brine has contaminants that violate the applicable groundwater effluent limitation
42

N.Y. DEPT ENVTL. CONSERV., Draft Supplemental Generic Environmental Impact Statement (dSGEIS) at 7-65 43 Rob Moritz, Panel Bans Injection Wells in Quake Zone, ARK. NEWS, July 27, 2011, available at http://arkansasnews.com/2011/07/27/panel-bans-injection-wells-in-quake-zone/ 44 Id. 45 Associated Press, Oklahoma Still Shakin From Earthquake, NY DAILY NEWS, Nov. 7, 2011, available at http://articles.nydailynews.com/2011-11-07/news/30371543_1_magnitude-aftershocks-earthquake 46 Henry Fountain, Disposal Halted at Well After New Quake in Ohio, N.Y. TIMES, Jan. 1, 2012, available at http://www.nytimes.com/2012/01/02/science/earth/youngstown-injection-well-stays-shut-afterearthquake.html 47 dSGEIS at 5-131 48 Id. at 7-60 49 G. Jeffrey Aaron, Wastewater from Gas Drilling Being Used for Area Road Maintenance, ITHACA J., Jul. 20 2012 ,available at http://www.theithacajournal.com/article/20110720/NEWS01/107200369/Wastewater-from-gas-drillingbeing-used-area-road-maintenance

10

standards when spread on the roadside. NYS regulation 703.6(a) provides a table of applicable thresholds for effluent discharge into fresh, potable, groundwater aquifers.50 These provisions apply to a discharge from a point source or outlet or any other discharge that will or may enter the waters of the State. [u]nless a demonstration is made to the contrary, it shall be presumed that a discharge to the ground or unsaturated zone is a discharge to groundwater.51 This expansive definition appears to include brine spreading. The original 1992 draft GEIS cites in table 15-5, Chemical Characteristics of Commercial Road Salt, Shallow Oil Brine and Deep Gas Brine, approximate levels of sodium, barium, lead, and many other potential contaminants. Focusing on the levels for the Deep Gas Brine, which are likely those closest to Marcellus shale production, the contaminant levels easily exceed the 50 micrograms/liter level for lead, and the 2,000 micrograms/liter threshold for barium, amongst many others.52 Thus road spreading of brine appears to be violative of groundwater effluent standards.

II.

The DEC must expand the scoping framework of the SGEIS study to address issues that either have new, potentially-revolutionary information, or were completely unknown at the time the first HVHF analysis was begun.

A. The DEC policy towards the greenhouse gas potential of unconventional natural gas production does not use current, cutting-edge research which questions the standard thinking about how green natural gas really is and encourages further study. A report issued by the New York State Energy Research and Development Authority (NYSERDA) on November 18, 2011, called Response to Climate Change in New York State (part of the ClimAID project), discusses the costs of climate change to our state. The section titled Economics warns that [o]verall costs of impacts within the energy, transportation, and coastal zone sectors will be most significant, likely by manyfold, but impacts within each sector will be significant. This is well illustrated in the agriculture and ecosystem sectors, where particular components such as specific crops and modes of production or rare and endangered ecosystems and species could be significantly affected ...53 In issuing [k]ey policy recommendations, targeted for New York State decision-makers the ClimAID report advocates the wisdom of promulgating regulations based on up-to-date climate projections.54 Another major element of New Yorks efforts to curb global warming is based on Governor Patersons Executive Order #24, also continued by Governor Cuomo, which calls for NYS to reduce greenhouse gas

50 51

N.Y. COMP. CODES R. & REGS. tit. X, 703.6(a), available at http://www.dec.ny.gov/regs/4590.html Id. 52 N.Y. DEPT ENVTL. CONSERV., Generic Environmental Impact Statement (GEIS) (1992) Table 15-5, 158c, available at http://www.dec.ny.gov/docs/materials_minerals_pdf/dgeisv2ch15.pdf 53 NYSERDA, Response to Climate Change in NY, 457 (Nov. 18, 2011). available at http://www.nyserda.ny.gov/en/Publications/Research-and-Development/Environmental/EMEPPublications/Response-to-Climate-Change-in-New-York.aspx 54 Id.

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emissions 80 percent by the year 2050.55 Order #24 also established the New York Climate Action Council which released their Interim Report on November 9, 2010, agreeing with leading climate scientists that the effects of climate change are already upon us and immediate action is required to mitigate emissions, including methane.56 A 2010 study by Cornell professors and researchers Robert Howarth, Renee Santoro and Anthony Ingraffea, comes to the conclusion that [a] complete consideration of all emissions from using natural gas seems likely to make natural gas far less attractive than other fossil fuels in terms of the consequences for global warming.57 While this statement has come under fire as an inaccurate characterization of the global warming potential of natural gas, Howarth et al are finalizing their rebuttal, as I understand it, and will stand by their conclusions. The overall import of the study remains. Methane is an extremely potent greenhouse gas, up to 105 times more powerful per molecule than CO2 over a twenty-year timeframe. Howarth takes into account the large amounts of methane leak which occur during the HVHF extraction and transmission process, acknowledging the limitations of available data from the federal government (due to industry opposition), and calls for more research into the effects of shale gas drilling on climate change, especially if drilling increases the risk of missing the 80 by 50 target of Executive Order #24. The SGEIS must assess the effects of the DECs action to permit HVHF in New York upon other established state climate change policy. We may even need to consider whether Executive Order #24 is outdated, given the increasingly urgent warnings that global warming is advancing more rapidly than earlier estimates.

B. The SGEIS lacks any information, discussion, or resolution of the incompatibilities of gas leases with the secondary mortgage market, putting all NY homeowner lessors, and even neighboring non-lessors, in technical violation of their mortgage terms.

As detailed in a New York Times article from October of 2011, and first brought to my attention by a local residential mortgage industry expert and the Tompkins County Legislature in May of 2011, widespread gas leasing across NY is causing conflict with the mortgage and real estate industries. Setbacks of only 100 feet from residential structures, the minimum requirement under the 1992 GEIS,58 is a violation of the terms of the secondary mortgage market, where most U.S. mortgage interests are concentrated after sale from a smaller lending institution. Additionally, the residential secondary mortgage market prohibits commercial and industrial activities on mortgaged residential
55

Exec. Order No. 24 (Aug. 6, 2009), available at http://www.nyclimatechange.us/ewebeditpro/items/O109F22395.PDF 56 NYSERDA, NY State Climate Action Plan Interim Report, 457 (Nov. 9, 2010), available at http://nyclimatechange.us/InterimReport.cfm 57 Robert Howarth, PRELIMINARY ASSESSMENT OF THE GREENHOUSE GAS EMISSIONS FROM NATURAL GAS OBTAINED BY HYDRAULIC FRACTURING at 1, available at http://www.technologyreview.com/blog/energy/files/39646/GHG.emissions.from.Marcellus.Shale.April120 10%20draft.pdf 58 N.Y. DEPT ENVTL. CONSERV., Generic Environmental Impact Statement (GEIS) (1992) at 8-3.

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properties. Gas drilling operations and the storage of heavy equipment can violate both restrictions, yet are commonly granted under a standard gas lease. Real estate agents find that local lenders are now uneasy about granting mortgages for properties that have gas leases, which has a detrimental restriction on the alienability of land, and creates a major limitation to fundamental homeowner property rights.59 In turn, mortgages encumbered by gas leases are routinely bundled and sold as mortgage-backed securities, despite the lack of compliance with the standards of major lenders. Securitization of mortgages that are in default, or tied to property that loses great value due to water contamination, for instance, pose a serious risk to the stability of our financial system. Widespread unconventional gas drilling promises to affect communities across the state that are unequipped to deal with the effects of heavy industrial activity, and NYS must assess the impacts of gas leasing on the real estate and mortgage markets before moving forward with HVHF.

C. With an incomplete socioeconomic report in the dSGEIS, DEC must open the finalized draft to additional public comment once an adequate review has been completed.

Under SEQRA law, prior to issuing a final agency decision, the agency EIS process requires that a suitable balance of social, economic and environmental factors be incorporated into the planning and decision-making processes of state, regional and local agencies, 60 with a concise description of the proposed action, its purpose, public need and benefits, including social and economic considerations.61 However, the DECs socioeconomic report has been subject to withering criticism due to its overly-optimistic jobs projections, failure to quantify a cost / benefit analysis with regard to other economic sectors that may be squeezed out, adherence to a 30-year well lifetime figure, despite reports that shale gas wells run dry much sooner, and lack of data on costs for infrastructure repairs, services and health care for local communities, amongst many other complaints about local quality of life impacts due to industrial scale truck traffic, and noise and visual aesthetic degradation. On December 20, 2011, DEC, facing pressure about these questions from many quarters, asked for a reassessment of socioeconomic considerations facing NY due to unconventional natural gas drilling.62 Inexplicably and shockingly, the DEC ignored the work of a nationally-recognized expert in economic development, Dr. Susan Christopherson of Cornell, our states land grant university and a world-renowned research institution. Her research indicates that, while there are economic benefits for some, there is likely long-lasting damage to other sectors of the

59

Ian Urbina, Rush To Drill For Natural Gas Creates Conflicts With Mortgages, N.Y. TIMES, Oct. 19, 2011, available at http://www.nytimes.com/2011/10/20/us/rush-to-drill-for-gas-creates-mortgageconflicts.html 60 State Envtl. Quality Review Act (SEQRA) 617.1(d). 61 617.9(b)(5)(i). 62 Jon Campbell, DEC Going to Take Closer Look at Hydrofracking Costs, POLITICS ON THE HUDSON, Dec. 20, 2011, available at http://polhudson.lohudblogs.com/2011/12/20/dec-to-take-closer-look-athydrofracking-costs/

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local economy, such as tourism, agriculture, and retail.63 I reserve my right to comment on the finalized socioeconomic report when released.

III.

Conclusion

By developing the Supplemental Generic Environmental Impact Statement according to the precautionary principle, and withdrawing the current draft until the many serious problems are corrected, New Yorks citizens and environment will be protected into the future. The people and wildlife of New York State must not be asked to bear the impacts of drilling, threatening the sanctity of our environment and health for future generations, and seriously putting at risk the climate change goals of the state.

Respectfully submitted,

Barbara Lifton Member of Assembly 125th District BSL/jal

63

Susan Christopherson, and Ned Rightor, How Should We Think About the Economic Consequences of Gas Drilling?, (May 2011), available at http://www.greenchoices.cornell.edu/downloads/development/marcellus/Marcellus_SC_NR.pdf

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