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Catskill Citizens for Safe Energy
comments on the proposed fracking regs
comments on the proposed fracking regs
It seems the Cuomo Administration is unwilling or unable to get even the simplest things right when it comes to fracking. It shouldn't be that hard; first you assess the environmental and health risks, then you write regulations to minimize the harm. That's the way it's supposed to work; but that's not the way it is in Andy's Albany.
Although The DEC still hasn't completed its environmental review, and outside experts haven't publicly released their comments on health impacts, Cuomo went ahead and issued draft fracking regulations on December 12th, thereby triggering a thirty-day public comment period that just so happens to coincide with the holiday season.
What's wrong with the regs? Plenty. We've prepared a number of letters that highlight some of the major flaws. Please take a minute or two to submit each one; we'll print them out and mail them in on the very last day of the public comment period. Our goal? To bury Albany in a blizzard of paper on January 11th.
Please use this link to send 13 letters to the DEC. Be sure to cut and paste and share on Facebook and Twitter.
Here are a summary of the letters:
Draft HVHF Regulations Comments
1: RE:CONFLICT OF INTEREST (SECTIONS 550.1 AND 550.2)
These sections give the Division of Mineral Resources and its director responsibility for administering and enforcing all rules and regulations relevant to all phases of oil and gas extraction. Giving the division the job of preventing damage and pollution from the very activity it promotes means that, for all intents and purposes, New York State will not have autonomous regulatory oversight over gas drilling. This regulatory structure is rare in the U.S., and for good reason. New York State should, like most states, have separate agencies to handle well permitting and regulation of the oil and gas industry. Failing to separate these functions undermines the DEC's effectiveness and credibility as an environmental protection agency and raises serious questions about its actual mission.
2: RE: COMPULSORY INTEGRATION (SECTION 553.3)
All decisions regarding Compulsory Integration, (Section 553.3) must be removed from the purview of the Division of Mineral Resources (DMN) and the Department's Office of Hearings and Mediation Services (OHMS) and assigned to an independent body.
The Division has an inherent conflict of interest since it is charged with promoting the extraction of minerals and that inherently conflicts with the best interest of the residents of New York State. The compulsory integration law was written by gas industry lobbyists to serve the industry, not the public. Individuals who know nothing about shale gas extraction and want nothing more than to be left alone may feel compelled to hire an attorney at their own expense to represent them at an integration hearing where the industry will be represented by an experienced attorney, often the very individual who wrote the integration law. Integration hearings are conducted in Albany rather that than in the impacted community and that also places an unfair burden on the property owner.
3: RE: NON ROUTINE INCIDENT NOTIFICATION (SECTION 560.5)
A "non-routine incident" may in fact be "of potential environmental and/or public safety significance [and] may include, but is not limited to: casing, drill pipe or hydraulic fracturing equipment failures, cement failures fires, seepages, blowouts, surface chemical spills, observed leaks in surface equipment, observed pit liner failures, surface effects at previously plugged or other wells, observed effects at water wells or at the surface, complaints of water well contamination, anomalous pressure and/or flow conditions indicated or occurring during hydraulic fracturing operations, or other potentially polluting non-routine incident or incidents that may affect the health, safety, welfare, or property of any person."
Reporting "non-routine incidents" to the DEC within two hours of occurrence, Section 560.5(c), is not, in and of itself, sufficient to protect the health, safety and property of New York State residents. The final regulations must require concurrent notification of the appropriate emergency responders, property owners and residents within a prescribed radius of where the incident occurred within the same two-hour window afforded to the DEC.
4: RE: CHEMICAL DISCLOSURE (SECTION 560.5)
Section
560.5 allows “proprietary” chemical constituents to be withheld
from public disclosure. Companies may avoid disclosure if they claim
the additive is a “trade secret.” Trade secrets cannot be
permitted to trump public health. Regulations must require full
public
disclosure of all
chemicals and additives, including quantities employed, in all stages
of the gas extraction process. Material Safety Data Sheets must name
and identify the quantity of every chemical used and be linked to
each oil and gas well listed in the DEC’s online searchable
database.
It
is essential for property owners and residents who rely on private
water wells to know the chemical composition of the fracturing fluid
used in wells surrounding and potentially incurring on their water
source, so that they may obtain accurate, independent testing of
their water wells, before, during and after the extraction process.
Residents in the vicinity of oil and gas wells should be provided
with Material Safety Data Sheets for every product used in a gas well
within one kilometer of their dwelling and/or their water supply.
Research
has
established links
between oil and gas operations and human health. “Natural Gas
Operations From A Public Health Perspective” published in the
International Journal of Human and Ecological Risk Assessment in 2011
reported that over 600 chemicals are in use in natural gas operations
and found that many have long-term health impacts, including on skin,
eyes, and kidneys and respiratory, gastrointestinal, brain/nervous,
immune, endocrine, and cardiovascular systems, as well as causing
cancer and mutations.
Individuals
charged with protecting public health, including county health
officers, doctors and first responders must have ready access to the
chemical composition of all chemicals used in the drilling and
fracturing process.
Re:
Section 560.2 (7), the voluntary chemical disclosure registry known
as FracFocus.org is inadequate and does not protect public health. A
mandatory online registry of all chemicals used in extraction
activities must be provided on the DEC website.
5: RE: USE OF DIESEL FUEL SECTION 560.6(c)(24)
Section 560.6(c)(24) Well Construction and Operation, Drilling, Hydraulic Fracturing and Flowback says "Diesel fuel may not be used as the base fluid for hydraulic fracturing operations." This draft regulation is both meaningless and misleading because diesel has never been considered a base fluid for hydraulic fracturing; the base fluid is water. (Section 560.2(b)(3) defines base fluid as "a substance, such as water or recycled flowback water, into which additives are mixed to form the hydraulic fracturing fluid which transports proppant, if used.")
Diesel fuel contains benzene. As the Virginia Department of Health concludes, "Aromatic hydrocarbons, predominantly benzene, have generally been regarded as the most toxic fraction of petroleum and petroleum solvents."
The underground injection of diesel fuel must, without exception, be prohibited. Regulations that simply forbid its use as a base fluid leaves the door open to the use of diesel as an additive, threatens the health and welfare of New York citizens and risks the irreversible contamination of our water supplies.
6: RE: SETBACKS FROM DWELLINGS/PLACES (SECTION 560.4)
A setback of 500 feet is inadequate to protect property values, public health and safety. A 2011 peer reviewed scientific study on gas migration, "Methane contamination of drinking water accompanying gas-well drilling and hydraulic fracturing", conducted by Duke University in the Marcellus shale regions of Pennsylvania demonstrated that elevated levels of gas migration occur as far away as one kilometer from gas wells.
Limiting setback in section 560.4(a)(2) to "Places of Assembly" and "inhabited dwellings" jeopardizes public health and safety, property values and the economic viability of the communities.
"Places of Assembly" and "inhabited dwellings" are narrowly defined by New York State building and fire codes; which were not written with the objective of protecting people, structures, and land uses from hydrofracking. Therefore the definition "places of assembly" must be expanded and clarified to include schools, school grounds, daycare centers, gas stations, places of worship, office buildings, public parks and open spaces, shops, hospitals and any other locations, public and private, where the public may gather, regardless of the size of the space or occupancy minimums and limits. Adequate setbacks must protect all indoor or outdoor spaces where people can be expected to congregate in any number, or rewritten to include a broad category such as "any location or structure where any number or persons dwell, or may dwell, or congregate, or assemble or may congregate or assemble."
Limiting setbacks to "inhabited dwelling" is not in the public's interest and these setbacks must be must be expanded to include all structures, including but not limited to: vacant homes, buildings under construction, warehouses, power plants, agricultural buildings and other structures that may house domestic animals, hotels and temporary housing facilities.
7: RE: WASTE DISPOSAL (SECTION 554 and 560.5)
The amendment to Paragraph (1) of subdivision (c) of Section 554.1 with a new paragraph (4) does not provide adequate regulation or protection with regard to the ultimate disposal and distribution of drilling mud, flowback water, production brine and drill cuttings. Rather it relies on the owner or operator to submit a plan for approval "for the environmentally safe and proper ultimate disposition and/or disposal of [such] used drilling mud, flowback water and production brine." There are no independent, objective standards that have been developed in these regulations which define what is, or is not environmentally safe, and to which industry must adhere. The approval of methods of disposition and disposal appears to be an entirely subjective process undertaken in reaction to methods of disposal chosen by industry.
560.5 Testing, Recordkeeping and Reporting Requirements, Section (f) requires that a Drilling and Production Waste Tracking Form must be completed and posted to the owner or operator's website "within 30 days of receipt of waste by the disposal facility." Only if it is requested by the DEC is there a requirement of a completed form with the signatures of the transporter and destination facility. There is no requirement with regard to volume of contents loaded, vehicle required, proposed route, and volume of contents unloaded. There are no regulations listed for the disposal or destination facility. The underlying regulation, Section 364, Waste Transporter Permits, has no specific requirements for the transportation of drilling mud, flowback water, production brine or drill cuttings.
Because of federal exemptions for the oil and gas industry, these wastes are not classified as hazardous waste, and because of this, federal regulations are less stringent with regard to disposal and disposition. Waste from drilling mud, flowback water, production brine and drill cuttings can contain salts, metal ions, some of which are toxic, organic hydrocarbons, inorganic and organic additives, and naturally occurring radioactive materials. In the interest of public health and safety, New York State must test these residuals for hazardous components and classify these wastes as hazardous wastes when they exhibit the characteristics of such.
8: RE: VENTING/FLARING (SECTION 560.4)
The proposed setbacks, Section 560.4, are insufficient to protect both human and animal health from the effect of air pollution associated with venting and flaring. Citizens of New York should not be placed in harms way because the DEC has included arbitrary setbacks from well locations part of these regulations. All setbacks must be based on the best available science, which indicates that public health will not be protected by 500 foot setbacks.
There is ample evidence to suggest that human and animal health has been compromised in locations downwind from high volume hydraulic fracturing (HVHF) operations. See "Human Health Risk Assessment of Air Emissions from Development of Unconventional Natural Gas Resources" published in Science of the Total Environment in 2012. It reported on air sampling data collected in Colorado that showed that residents living near extraction operations are at greater risk of health-related impacts than those living further away.
The Ventura County Air Pollution Control District (in California) has estimated that the following air pollutants may be released from natural gas flares: benzene, formaldehyde, polycyclic aromatic hydrocarbons (PAHs, including naphthalene), acetaldehyde, acrolein, propylene, toluene, xylenes, ethyl benzene and hexane.
In 2000, Canadian Public Health Association reported "There have been over 250 identified toxins released from flaring including carcinogens such as benzopyrene, benzene, carbon di-sulphide (CS2), carbonyl sulphide (COS) and toluene; metals such as mercury, arsenic and chromium; sour gas with H2S and SO2; nitrogen oxides (NOx); carbon dioxide (CO2); and methane (CH4) which contributes to the greenhouse gases."
Section 556.2 (b) allows for a HVHF to be vented for up to 120 hours Venting is nothing more than the release of unburned gases including methane directly into the air. Methane is a far more powerful greenhouse gas (GHG) than Carbon Dioxide. EPA data shows that natural gas production is now the largest source of methane pollution in the United States. Allowing venting of potent GHG into the atmosphere is grossly irresponsible.
9: RE: SETBACKS (560.4)
The revised Draft Regulations (Section 560.4) proposes setbacks from high volume hydraulically fractured gas wells that are without scientific basis and fail to protect water supplies and public safety. They apparently ignore a 2011 peer-reviewed scientific study on gas migration, Methane contamination of drinking water accompanying gas-well drilling and hydraulic fracturing, conducted by Duke University which demonstrated that elevated levels of methane contamination of water supplies occur as far as one kilometer away from Marcellus gas wells. Since high volume hydraulic fracturing (HVHF) is known to impact water resources within a radius of one kilometer of a gas well, that should be a the minimum setback from all water supplies in New York State.
Setbacks of 500 feet from private water wells, Section 560.4(a)(1), are inadequate to protect the potable water sources for private water wells, which provide unfiltered water for hundreds of thousands of New York citizens who live on the targeted shale formations. Moreover the definition of water sources must include all waters that feed into or affect present or potential drinking water supplies. These include reservoirs, wetlands, streams, lakes, ponds, rivers, intermittent and seasonal water bodies and springs.
Section 560.4(a)(3) must be expanded to include principal and secondary aquifers and, as stated above, a 500 foot setback is inadequate. These regulations must be expanded to recognize and protect all usable aquifers. Principle aquifers are the primary water source for most of upstate New York and currently lack any protections in the proposed regulations.
The 2009 Hazen and Sawyer report, Impact Assessment of Natural Gas Production in the New York City Water Supply Watershed, commissioned by the NYC Department of Environmental Protection recommended "that natural gas well construction be precluded within a buffer zone of seven miles from NYCDEP subsurface infrastructure." The final regulations should adopt this guideline for New York City's drinking water infrastructure and then ensure that all drinking water infrastructure throughout the state is afforded equal protection.
Section 560.4(a)(4) must be revised to provide adequate setbacks in order to protect rivers, streams, ponds and wetlands. Setbacks must be in place for floodplains, however all references to 100-year floodplains must be updated to include 500-year floodplains, and before any regulations are approved or any permits are issued the definition and mapping of both 100- and 500-year floodplains must be updated to reflect current weather patterns.
Section 560.4(a)(5): As stated above, elevated levels of gas migration occur as far as one kilometer (3,280 feet) from HVHF. Accordingly, the proposed 2,000 feet setback from any public water supply is inadequate.
Given both the tremendous amounts of toxic fluid involved in HVHF and the risks of spillage, explosion and contaminated runoff, all the proposed setbacks from water supplies are grossly inadequate.
All setbacks must be based on specific geological information specific to the Marcellus and Utica shale formations in New York, and must be justified by the DEC in a scientifically responsible manner.
10: RE: BTEX (SECTION 560.5 (1))
The statement that water testing specifically include BTEX. (560.5 (1)) seems to admit that BTEX may be used in HVHF, something the DEC has previously denied. These volatile aromatic compounds (benzene, toluene, ethylbenzene and xylene) are known to be toxic to humans and animals and can contaminate both air and drinking water supplies.
Benzene, a component of both diesel fuel and BTEX, is classified by the EPA as a carcinogen. The Center for Disease Control (CDC) states "ethylbenzene is carcinogenic in animals." According to the CDC's Agency for Toxic Substances and Disease Registry "... all four chemicals can produce neurological impairment …" and "Neurotoxicity is the critical noncancer effect of concern for BTEX mixtures." "Based on findings in human and animal studies, acute or repeated exposure to any of the BTEX component chemicals is expected to produce neurological impairment resulting from the parent chemicals acting on components of neuronal membranes"
BTEX and all other toxic additives must be prohibited in all phases of oil and gas extraction.
11: RE: INADEQUATE SETBACKS FAIL TO PROTECT LIVESTOCK AND THE FOOD CHAIN (SECTION 560.4)
The 2012 peer reviewed paper by Dr. Michelle Bamberger and Dr. Robert Oswald, "Impacts of Gas Drilling on Animal and Human Health," concludes "Animals, especially livestock, are sensitive to the contaminants released into the environment by drilling and by its cumulative impacts. Documentation of cases in six states strongly implicates exposure to gas drilling operations in serious health effects on humans, companion animals, livestock, horses, and wildlife." Domestic and game animals are likely to consume toxic drilling waste because they will be attracted by the high concentration of chlorides that is typical of produced water.
Section 560.4 must include a comprehensive list of protected land uses. Setbacks must be written for pasture lands and lands used for hunting in order to protect the agricultural industry and our food chain.
12: RE: PART 560 OPERATIONS ASSOCIATED WITH HIGH VOLUME HYDRAULIC FRACTURING
There is nothing in the proposed regulations that seeks to protect groundwater supplies from contamination due to human error.
The NYS DEC should carefully consider the report released in December 2012 by the Alberta Energy Resources Board's (ERCB) (http://www.ercb.ca/reports/IR_20121220_Caltex.pdf) that details an incident in which groundwater was contaminated because of a mismanaged fracking operation. The report describes the errors that led to the contamination incident and also subsequent failures of the crew to recognize the errors they had made. There is no reason to believe incidents like this are uncommon. Accidents caused by human error, present a clear and present danger to public health and drinking water supplies. As ERCB spokesman Darin Barter concluded "There is no amount of regulation that can overcome human error.
Therefore regulations must attempt to prevent human error by developing a detailed plan to screen and monitor all personnel who will conduct sensitive operations that could result in groundwater contamination. The DEC should maintain a profile of each individual employed on a well crew that includes a description of their training and qualifications, and a complete record of any accidents or unusual incidents that occurred while he or she was employed in extraction operations. This information should be submitted to the DEC under by the prospective crew members under penalty of perjury. The department should also have the authority to bar individuals from working on well crews in New York State.
13: RE: PART 560 (10-20) OPERATIONS ASSOCIATED WITH HIGH VOLUME HYDRAULIC FRACTURING
One of the most critical and technically difficult aspects of the process of high volume, slick water hydrofracking (HVHF) is preventing the well bore from contaminating groundwater. There is nothing in the proposed regulations that will ensure that well casings maintain their integrity over the lifetime of a well, or that compromised casings will be quickly identified and repaired.
"From Mud to Cement – Building Gas Wells" an article published in Autumn, 2008 states "Even a flawless primary cement job can be damaged by rig operations or well activities occurring after the cement has set. Changing stresses in the wellbore may cause microannuli, stress cracks, or both …". An undated Powerpoint by Southwestern Energy Corporation describes how "cement and well casings can corrode over time due to exposure to moisture and chemicals." Other industry reports suggest 6% of all well casing fail initially and that 60% of cement jobs will fail within 30 years.
The DEC must not permit HVHF in New York State until and unless it can clearly establish, through peer-reviewed scientific studies, that there are proven ways to prevent well casing failures over the lifetime of a well.
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