BH Comments on PSB article: "Last-minute surge of hydrofracking comments leaves DEC with hands full"

http://www.pressconnects.com/article/20120113/NEWS01/201130352/Last-minute-surge-hydrofracking-comments-leaves-DEC-hands-full

Last-minute surge of hydrofracking comments leaves DEC with hands full

6:10 PM, Jan. 13, 2012

Written by Jon Campbell

ALBANY -- Three days was all it took to double the state Department of Environmental Conservation's workload when it comes to hydraulic fracturing.

Comments on the agency's proposed hydrofracking rules skyrocketed from 20,800 on Jan. 9 to an estimated 40,000 by the time a response period closed at midnight Wednesday.

Now the DEC will have the onerous task of responding to the unprecedented number of comments. It's a process that will take months and could serve as one of the final hurdles before the drilling process is allowed in New York.

The state's 1,500-page report on high-volume hydrofracking is 3 1/2 years in the making. DEC Commissioner Joseph Martens said the completion of the report is months -- but not years -- from being finalized.

First, the DEC has to document each comment and respond to ones that provide a substantive critique.

"We're looking to see how (the comments) line up with any conclusions that we have drawn(*1) about any aspect of either the technical side of hydraulic fracturing or the socioeconomic side," Martens said in an interview Thursday with Gannett's Albany Bureau.

(*1: Conclusions? WRONG ANSWER Commissioner.
Set your conclusions aside and listen to what the people have to say.

Here's what we'd like to hear him say:
Commissioner Martens, in our dreams:

"We are grateful to the public for providing us all of this remarkable data
and for pointing out our legitimate oversights.

We hope to identify additional risks in these comments
not previously addressed in the rdSGEIS,
and propose new mitigations and prohibitions.

We are cognizant of the large number of local municipalities,
91 at last count, which have either passed bans or moratoria,
or are moving towards such.

We at the DEC and Governor Cuomo
have heard you about the hasty decision to proceed with
fracking at the scoping stage.

So we are reconsidering that, including the
NO ACTION ALTERNATIVE, which would amount to a ban.")

"If they raise questions about our work, we'll explore that and see if we agree or disagree."(*2)

(*2: OK, this is bad. Martens is taking this personally. This is an ego response.

Commissioner Martens, it's not about YOU. You seem like a really nice person.
This is about FRACKING. We don't want it here.)

Agency staffers are in the process of scanning thousands of last-minute, hard-copy submissions into the DEC's computer system. The responses will then be categorized and sent to the appropriate DEC division for a reply. And with written comments only having to be postmarked by Jan. 11, more were still trickling in recent days.

In the end, all the issues raised in the comments will be summarized and addressed with the final report, according to state law.

Many of the submissions -- including at least 7,000 copies of a pro-drilling form letter submitted by the Joint Landowners Coalition -- will require a single response.

Others that simply profess support or opposition to hydrofracking and do not offer specific comments on the DEC's proposals would not require a response.(*3)

(*3: Again, WRONG ANSWER Commissioner. if out of the unprecidented 40,000 comments, 36,000 are are against fracking, you had better respond to that! Let us remind you, that the authority for your job is given by we the people!).

But some are highly technical, including 500 pages from the Natural Resources Defense Council, which criticize the proposals as being too weak. Close to 150 pages came in from the Independent Oil & Gas Association, which called the DEC's plan "onerous" and "arbitrary."

High-volume hydrofracking -- the use of a high-pressure mix of water, sand and chemicals to unlock gas from tight shale formations -- has been on hold in New York since 2008.

"(Gov. Andrew Cuomo) should heed these concerns and order officials to revise the plan accordingly," said Bridget Lee, an attorney for environmental law firm Earthjustice, which has warned about the safety of hydrofracking.

"He has a duty both to help the state withstand legal scrutiny, and more importantly to protect the health of his constituents."

While Martens stressed that all technical comments will be considered and analyzed, he expressed confidence that the draft report addressed all the major issues surrounding hydrofracking.(*4)

(*4: WTF!? Sorry, this is astounding. I've been announcing "victory!", saying that they HAVE been hearing us in Albany.
Now I'm not so sure!

First there were 17 reasons identified, (TinyURL.com/2011SGEISFlaws) all show-stoppers on the SGEIS Flaws Wiki, including: * no cumulative impacts * no wastewater plan * no health impacts * and many more. Then there were 41 Reasons to Reject the Draft (TinyURL.com/41Reasons) produced by Adrian Kuzminski & Sustainable Otsego (now the list is up to 53). Then there was 101 Reasons to Ban Fracking, (TinyURL.com/101ReasonsToBanFracking) by Gerri Wiley of NYRAD. Gerri points out for each of the 101 reasons, any one of which would be sufficent to ban fracking. )

Still, the industry and landowners have taken issue particularly with a variety of setbacks and prohibitions included in the DEC's recommendations.

One is a ban on hydrofracking within 4,000 feet of the New York City and Syracuse watersheds. Landowners suggest those bans amount to an illegal "taking" of private property under the Fifth Amendment.(*5)

(*5: The Fifth Amendment says that "No person shall ... be a) deprived of life, liberty, or property, without due process of law; nor b) shall private property be taken for public use, without just compensation". Let's break this down. This does not apply, because we are not talking about the government taking property. We are talking about preventing someone from doing activities on their land which will very likely have toxic side-effects downstream. There is no right under law to pollute your neighbor's well for profit.)

"We didn't look at this from the prospective of: Should every landowner be able to have fracking on their property?" said Martens, who said he doesn't believe the watershed bans violate the Constitution. "We look at it from the perspective of: What are the natural resources that need to be protected, and how do we go about protecting them?"(*6)

(*6: This is good... why is the document so weak, then? Is it due to the DEC's dual and schizophrenic purpose to both a) protect the environment, and b) license and permit industry to extract wealth and to pollute?)

The gas industry contends the DEC's proposed rules take as much as 50 percent of the "desirable parcels" off the table in the Marcellus Shale. If the regulations stand, gas companies would have little if any interest of moving into New York, warned Tom West, an Albany-based attorney and lobbyist for several major gas companies.

"This has to do with whether or not any (companies) are going to come back and lease land in New York state going forward," West said. "This has to do with whether or not industry is going to invest in New York state given the very non-competitive standards that have been proposed(*7) and the uncertainty of the process."

(*7: ...which Chip Northrup calls the worst in the nation: http://tinyurl.com/worstregs ).

While the DEC would have the authority to issue permits after it completes its review, there is still plenty of uncertainty surrounding the future of hydrofracking in New York. That includes the possibility of a legal challenge, which groups on both sides of the issue have long hinted as a foregone conclusion.

The DEC's hydrofracking advisory panel, a group of 18 outside stakeholders who have been tasked with coming up with an appropriate fee structure for gas drillers(*8), has yet to begin drawing up any proposals of its own. A meeting that had been scheduled for Thursday was postponed at the last minute, marking the third time a panel meeting has been pushed back in three months.

(*8: In other words, Cuomo has instructed the panel to *assume* that fracking in NY is inevitable, which it is not!)

Martens said the DEC is still pulling together information for the panel to review.

"We owe (the panel) information about the resource needs of the other state agencies," Martens said. "They need that information because that goes really to what is the magnitude of expenses that we need revenue to cover. We owe them information that will allow them to complete the work."

Even after the panel's recommendations are complete, new taxes and fees imposed on drillers would likely have to be passed by the state Legislature, which is bitterly divided on the merits of hydrofracking.

But the biggest remaining hurdle for drilling supporters still rests with the DEC reviewing comments and finalizing its rule proposals.

Martens said he's pleased with the draft report, but the comments could prove helpful.

"I feel like our work was well done," Martens said. "Was it perfect? Not necessarily, and that's what the comment period is all about. I'm sure that there are things we're going to learn from the comments."

Campbell is a staff writer for the Gannett Albany Bureau.