BillHustonBlog: Sandra Steingraber / 30 days of Fracking Regs

I am assembling a list of all published comments on the DEC's new proposed regulations. Here are Dr. Sandra Steingraber's comments at the 30 Days of Fracking Regs website.

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FRACKING REG ISSUE - DECEMBER 12^th

Today, day 1 of the regs comment calendar, falls on the fourth day of Hanukkah. This holiday celebrates the resolve of a small band of warriors who defended their temple against a much larger invading army. In this spirit, let's take a look at the reg that governs how close to our homes a drilling and fracking operation can set up shop. Tomorrow we'll look more closely at the proximity of well pads to our drinking water supplies, but for now, let's train our flashlights on Section 560.4(a)(2):

Section 560 560.4 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).

Setbacks are distances from drilling pads. In other words, the proposed regulations allow 'shale gas wells to be drilled just 500 feet from our houses. As a point of reference, 500 feet is just under one-tenth of a mile. And "places of assembly" are not even defined in NY's environmental codes. A school playground, for example, may not qualify as a place of assembly and, hence, would not be covered by the 500-foot rule.

There is no scientific basis for claiming that 500 feet provides safety. It does not take cumulative impacts into consideration, as when your home is surrounded by multiple well pads. Also, evidence from Colorado shows that air pollutants from drilling and fracking operations travel much farther than 500 feet and that people living within a half mile (= 2640 feet) from a well pad can experience health problems. Long-distance air pollutants from drilling and fracking operations include benzene (a known cause of leukemia) and methylene chloride (an ingredient in paint thinner and a known brain poison). A new study found 44 hazardous air pollutants in the backyard of a Colorado home located 0.7 miles from a state-of-the-art drill pad - seven times farther away than 500 feet.

FRACKING REG ISSUE - DECEMBER 13^th

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):

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.

FRACKING REG ISSUE - DECEMBER 14^th

We begin day 3 of the regs comment period with a star-shaped flower known as "dustymaiden," or, in Latin, Chaenactis. On December 14, 1971, the United States set off an underground nuclear blast at the Nevada Test Site. Code-named Chaenactis, this bomb vaporized a large chamber beneath the earth. Chaenactis was one in a series of below-ground nuclear tests that tainted a Nevada aquifer with radiation. It will not dissipate for tens of thousands of years. On the 41st anniversary of the detonation of Chaenactis, let's read Section 560.7(i) of the proposed regs, which governs what is to be done with radioactive waste left over from drilling and fracking operations:

Section 560.7(i)

Flowback water recovered after high-volume hydraulic fracturing operations must be tested for naturally occurring radioactive material prior to removal from the site. Fluids recovered during the production phase (i.e., production brine) must also be tested for naturally occurring radioactive material prior to removal. Radiological analyses of flowback water and production brine must include analysis for combined radium (Ra-226 and Ra-228) and other analytes as directed by the department.

The soils adjacent to the flowback water and production brine tanks must be measured for radioactivity upon removal of the tanks, and at such other times as the department may require. For soil samples, analyses must at a minimum include gamma spectroscopy for all naturally occurring gamma emitters including Ra-226 and Ra-228 (as determined from the presence of their decay products).

In other words, companies are required to test for radioactive agents but not to track them or prevent their release into the environment in the first place (an environment that could be as close as 500 feet from your house. See day 1 on the regs calendar). Compared to other shale bedrocks, the Marcellus Shale is impressively radioactive, and the type of radioactive materials it contains—radium—is particularly long-lived. When radium is exhumed from deep within the earth, it doesn't just go away. It can last for thousands of years. There is no safe level of exposure to radiation.

People can be exposed to radioactive materials from drilling and fracking operations when trucks hauling waste materials travel past their homes, when radioactive brine is spread on roads as a de-icing agent, when radioactive wastewater is discharged into rivers that serve as downstream drinking water sources, when crops are grown on contaminated soil, and when farm animals ingest radioactive deposits on plants.

Ivan White, staff scientist for the National Council on Radiation Protection observes that fracking the Marcellus Shale in New York State has the potential to result in the production of large amounts of waste materials containing Radium-226 and Radium-228. And yet, "under the proposal for horizontal hydrofracking in New York State, there are insufficient precautions for monitoring potential pathways or to even know what is being released into the environment." White further observes, "Neither New York State nor the Nuclear Regulatory Commission would permit a nuclear power plant to handle radioactive material in this manner."

FRACKING REG ISSUE - DECEMBER 15^th

Today, day 4 in the regs comment calendar, is the seventh day of Hanukkah. The Hebrew word for "dedication," Hanukkah commemorates the re-sanctifying of a temple defiled by foreign occupiers. In that spirit, let's return to Section 560.7 of the proposed regs, which governs how the waste products from drilling and fracking operations will be disposed of. Fracking waste comes in three forms: drill cuttings (rock and sludge removed from the miles-long holes that are drilled down into the bedrock and sideways through it); flowback water (fracking fluid plus ancient, briny seawater that naturally occurs in shale and which flies up out the hole immediately after a well is fracked) and production water (essentially the same as flowback water except it comes out of the well during the period of time when it is producing gas). These wastes can be radioactive. They also contain heavy metals. And they all have to go somewhere.

560.7 Waste Management and Reclamation

(a) Fluids must be removed from any on-site pit and the pit reclaimed no later than 45 days after completion of drilling and stimulation operations at the last well on the pad, unless the department grants an extension pursuant to paragraph 554.1(c)(3) of this Title. Flowback water must be removed from on-site tanks within the same time frame.

(b) Removed pit fluids including used drilling mud must be disposed, recycled or reused as described in the approved fluid disposal plan submitted pursuant to paragraph 554.1(c)(1) of this Title. Transport off-site of used drilling mud, flowback water and production brine by vehicle must be undertaken by a waste transporter permitted pursuant to Part 364 of this Title.

(c) Drill cuttings must be disposed as described in the approved drill cuttings disposal plan submitted pursuant to paragraph 554.1(c)(4) of this Title. Cuttings contaminated with oil-based mud or polymer-based mud containing mineral oil lubricant must be contained and managed in a closed-loop tank system and may not be buried on site, and must be removed from the site for disposal in a solid waste disposal facility. Transport off-site of drill cuttings, except cutting samples collected upon the request of the department or for analytical purposes by the owner or operator, and the pit liner by vehicle must be undertaken by a waste transporter permitted pursuant to Part 364 of this Title. Disposal or on-site burial of cuttings associated with other drilling fluids and any associated pit liner must conform to all applicable department regulations.

In other words, there are rules specifying WHEN and HOW fracking waste should be carried away from the well, but there are no rules that say WHERE its resting place must be. The regs leave it up to drillers to come up with a plan for disposal. These wastes are toxic but because of federal exemptions specific to the oil and gas industry, they are not classified as such and are thus legally treated no differently than other waste. Drill cuttings can end up in our municipal landfills. Flowback and production water can contain benzene, biocides, and radiation. Should we run them through sewage treatment? In September, 2011, 59 scientists wrote to Governor Cuomo about the inability of sewage treatment plants to remove toxic chemicals from the millions of gallons of wastewater generated by fracking. Should we truck them to Ohio? Injection of fracking wastewater into underground wells in Ohio is linked to earthquakes.

Just this week, the Westchester County Board of Legislators unanimously passed legislation that banned disposal of fracking waste, while residents of Panama, New York in Chatauqua County protested the fracking waste disposal wells permitted for their community.

FRACKING REG ISSUE - DECEMBER 16^th

Today, day 5 in the regs comment calendar, is the eighth day of Hanukkah. Fracking brings sinister new meaning to the phrase, "Festival of Lights."

Section 560.6 (c)(28)

The venting of any gas originating from the objective formation during flowback must be through a flare stack at least 30 feet in height, unless the absence of H₂S has been demonstrated at a previous well on the same pad which was completed in the same producing horizon. Gas vented through the flare stack must be ignited whenever possible. The stack must be equipped with a self-ignition device.

Flare stacks are like Bunsen burners with the height of a two-story house. They are used to burn off plumes of natural gas (methane) and other hydrocarbon vapors during the period of time after a well is drilled and fracked but before the gas is collected. The period of time between fracking and production, called "flowback," can range from days to weeks. The "objective formation" refers to the shale layer that is the target of fracking.

Venting is the release of unburned gases directly into the air. Methane, a potent greenhouse gas, is > 20 times more powerful than carbon dioxide at trapping heat. EPA data show that natural gas production is now the largest source of methane pollution in the United States. Immediate reductions in methane emissions could help us avoid catastrophic climate tipping points.

H₂S is hydrogen sulfide. In some shale formations, it comes to the surface along with the methane. With a characteristic odor of rotten eggs, hydrogen sulfide is both explosive and poisonous. Chronic low-level exposure is linked to respiratory irritation, dizziness, memory loss, and miscarriage. Hydrogen sulfide is a nerve poison. High levels can be deadly—and also undetectable because it paralyzes nerves in the nasal passage and so snuffs out sense of smell. It is heavier than air, so children—closer the ground than grown-ups-receive higher doses. Flaring converts hydrogen sulfide to less toxic sulfur dioxide. Sulfur dioxide causes acid rain.

Releasing a cocktail of poisons, flare stacks are serious air polluters and so represent a known hazard to human health. In addition to nitrogen oxides, which create smog (ozone), burning flare stacks release formaldehyde and benzene. Both are human carcinogens.

A flare stack is very loud, with a sound often compared to a jet engine.

What would upstate New York look like with tens of thousands of flare stacks flaming in our woods, pastures, and neighborhoods? Fly over Pennsylvania on a clear night. Look down from 10,000 feet and you can see them—giant, flickering candles. Toxic menorahs in the earth.

FRACKING REG ISSUE - DECEMBER 17^th

Today, day 6 of the regs comment calendar, we celebrate the genius of Ludwig van Beethoven, who was baptized—if not born—on this very day in 1770.

Beethoven assigned numbers to his sonatas and symphonies, as is the time-honored practice of composers, but his music was so heartbreakingly lovely that, after his death, images from the natural world became attached to his scores. Thus, Piano Sonata No.14 in C Sharp Minor became Moonlight Sonata because the progression of its opening melody evoked for so many listeners the play of moonbeams across the glassy surface of a lake. And, in 1907, Henry van Dyke turned the signature choral theme in Beethoven's ninth (and final) symphony—Ode to Joy—into a hymn with these lyrics:

"Field and forest, vale and mountain, flowery meadow, flashing sea. Singing bird and flowing fountain call us to rejoice in Thee."

So, while pondering the reg below and composing a comment, crank up your favorite masterwork by Herr Beethoven. (As I write, I'm listening to Glenn Gould perform the second movement of the Emperor Concerto, whose adagio of descending notes is, for me, the sound of falling water itself.)

Section 190.8(ag)

Notwithstanding any other provision of this title, surface disturbance associated with the drilling of a natural gas well subject to Part 560 of this Title on State owned lands is prohibited and no permit shall be issued authorizing such activity. This prohibition shall apply to any pre-existing and new leases issued for oil and gas development on State owned lands. This prohibition shall not apply to subsurface access to subsurface resources located under State owned lands from adjacent private areas.

In other words, while drilling and fracking operations cannot set up shop on top of state lands, drilling and fracking operations can be erected on private lands immediately next to state lands and, from there, tunnel underneath them. Underground wellbores can extend laterally for a mile or more.

State lands refer to all land owned by the State of New York under the jurisdiction of the Department of Environmental Conservation that are administered by the Division of Fish, Wildlife and Marine Resources. These holdings include wildlife areas, unique areas, game farms, wetlands, and fishing sites. They include lakes, rivers, and streams. All together, state-owned land makes up 13 percent of the land area of New York State. In the Woody Guthrie scheme of the things: this land is your land and this land is my land. These are public places that we hold in trust for future generations of New York residents.

Nothing in the regs prevents drill rigs from encircling and fracking the land that belongs to us. And there is nothing to prohibit fracking under lakes, streams, and rivers.

Fracking is loud, and its din does not stop at the boundary where private lands meet state lands. Studies show that industrial noise from compressor stations at gas drilling operations interferes with the ability of forest-dwelling ovenbirds to reproduce.

Fracking fragments forests and degrades water in ways that harm wild plants and animals and so undermines biodiversity. A new study, "Hydraulic Fracturing Threats to Species with Restricted Geographic Ranges in the Eastern United States," to be published in the journal Environmental Practice, finds that fracking poses "serious threats to a diverse group of species, including plants, butterflies, fishes, and salamanders," especially those depending on good water quality.

Moonlight glistening on a polluted lake bubbling with toxic gases does not inspire joy. And if we have no quiet, unfractured lands remaining to us, with "singing bird and flowing fountain" in them, what is evoked in us when we hear a symphony? What is left for music to praise?

FRACKING REG ISSUE - DECEMBER 18^th

Today is Day 7 in the regs comment calendar. On this day in 1865, U.S. Secretary of State William H. Seward (formerly Governor Seward of New York) proclaimed the ratification of the Thirteenth Amendment to the Constitution. "Neither slavery nor involuntary servitude, save as a punishment for crime whereof the party shall have been duly convicted, shall exist in the United States, or any place subject to their jurisdiction." And with those words, a century of trying to regulate an atrocity gave way to abolition.

The Thirteenth Amendment should provide plenty of fortitude as we explore Section 560.3 of the regs, which governs the disclosure of fracking chemicals.

Section 560.3(d)(2) Hydraulic Fracturing Fluid Disclosure

The department will disclose to the public the information submitted pursuant to paragraph (1) of this subdivision except that operators or other persons who supply information subject to paragraph (1) of this subdivision may request such records to be exempt from disclosure as trade secrets as provided by Part 616 of this Title. Records determined by the department to be exempt from disclosure shall not be considered a well record for purposes of disclosure.

In other words, the chemical constituents in fracking fluid can be hidden from the public—and from medical professionals—at the companies' request. And this provision goes to the heart of why fracking cannot, under these circumstances, be regulated.

Regulations are supposed to be based on knowledge, not ignorance. No public health expert can predict the health effects from chemicals that are unidentified. And proprietary carve-outs present a human rights problem. Without public disclosure we cannot offer informed consent to the risks we are being asked to assume.

Between 10,000 and 50,000 gallons of chemicals are used to frack a single well. Of the 600-odd chemicals that are their presumed potential ingredients, 25 percent are linked to cancer, 40-50 percent harm the brain, and 37 percent interfere with our hormone systems. A special amendment to the 2005 Energy Policy Act specifically grants fracking an exclusion from the Safe Drinking Water Act (a law which authorizes the U.S. EPA to regulate the injection of toxic chemicals into the ground). This loophole means that the federal government has no power to require the full disclosure of fracking chemicals. In its proposed regs, the state of New York does not assume that authority.

Until it does, our only recourse is fracking's version of the Thirteenth Amendment, one proclamation of which comes from Cooperstown, New York at the headwaters of the Susquehanna River:

RESOLUTION BY THE MEDICAL STAFF OF THE BASSETT HEALTHCARE NETWORK, approved February 23, 2011

Whereas, we, the members of the professional staff of Bassett Healthcare Network are responsible for the health care of a significant proportion of the population of eight counties in central New York State, and

Whereas, the hydrofracking method of drilling for natural gas involves the use of millions of gallons of water mixed with known carcinogens, teratogens, endocrine disruptors, and other toxic materials which are injected under extremely high pressures deep into the earth, and

Whereas, unanticipated escape of any of this fluid into the aquifer would result in irreversible damage to our drinking water supply, and

Whereas, the disposal of the portion of fluids and gases retrieved from these operations could result in irreversible damage to the air, waterways and natural environment, and

Whereas, contamination of ground water, air and other environmental damage has already been demonstrated in numerous locales with similar geology, such as Pennsylvania, and

Whereas, the resulting adverse health effects on the population we serve would far outstrip our knowledge or capacity to provide care,

We hereby resolve that the hydrofracking method of gas drilling constitutes an unacceptable threat to the health of our patients, and should be prohibited until such time as it is proven to be safe. We resolve as well that the authority of the Environmental Protection Agency over all such activities should be restored.

FRACKING REG ISSUE - DECEMBER 19^th

Today is day eight in the regs comment calendar. On this date in 1843, Charles Dickens' A Christmas Carol went on sale. Like its protagonist, Ebenezer Scrooge, we New Yorkers are being asked to peer into our own future ("the shadows of what may be") and—if we dislike the dire scenes we behold there—change the course we are setting in the present.

Hark! It is the Ghost of New York Yet to Come. Hold her spectral hand, and she shall haunt you with visions of depleted wells and what shall befall them when, years from now, their gas finally runs out:

Section 555.5(a)(1-4) Plugging and Abandonment

(1) The well bore, whether to remain cased or uncased, shall be filled with cement from total depth to at least [15] 50 feet above the top of the shallowest formation from which the production of oil or gas has ever been obtained in the vicinity. Alternatively, a bridge topped with at least [15] 50 feet of cement shall be placed immediately above each formation from which the production of oil or gas has ever been obtained in the vicinity.

(2) [If] For any casing [is to be] left in the ground, a cement plug of at least [15] 100 feet in length shall be placed [at the bottom of such section of casing] 50 feet below and 50 feet above the casing shoe . Uncemented casing must be cut and pulled as deep as practicable with a plug approximately 50 feet in length placed in and above the stub of the casing. If the uncemented casing is unable to be pulled the casing must be perforated 50 feet below the shoe of the next outer casing and a 100-foot plug placed across that shoe. A [similar] 50 foot plug shall be placed at [the top of such section of casing unless it shall extend to] the surface. [In the latter event, the casing shall be capped in any such manner as will prevent the migration of fluids and not interfere with normal soil cultivation.]

(3) If casing extending below the deepest potable fresh water level shall not remain in the ground, a cement plug of at least [15] 50 feet in length shall be placed in the open hole at a position approximately 50 feet below the deepest potable fresh water level.

(4) If the conductor casing or surface casing is drawn, a cement plug of at least [15] 50 feet in length shall be placed so that the top of the plug is immediately below the point where the lower end of the conductor or surface casing shall previously have rested (i.e., the casing seat). The hole thereabove shall be filled with cement, sand or rock sediment or other suitable material in such a manner as will prevent erosion of the well bore area and not interfere with normal soil cultivation.

(5) [The] Unless otherwise specified in this Part, the interval between all plugs mentioned in paragraphs (1) through (4) of this subdivision shall be filled with [a heavy mud-laden] gelled fluid with a minimum density equal to 8.65 pounds per gallon with a 10 minute gel-shear strength of 15.3 to 23.5 pounds per hundred square feet or other department-approved fluid.

In other words, two or twenty years hence, when the wells run dry, cement and gel will be poured into their empty tubes, which extend like cocktail straws from the earth's surface into the shattered bedrock thousands of feet below. These plugs must, for all eternity, prevent methane, radon, benzene, and other toxic gases and poisonous frack fluids from rising up and venting into our drinking water aquifers.

Because there are no data on the immortality of cement, it is a day for inductive reasoning. In your comment, feel free to share whatever personal experience you might have with old cement and its tendency to shrink when it cures and crack when it ages. Add to this whatever obligations you feel about the rights of future generations. If you believe that past behavior is a reasonable predictor of future behavior, consult Walter Hang's research on the 5,000 abandoned vertical gas and oil wells that already dot landscape across upstate New York. Many of them are leaking.

For a holiday touch, top off with a quote from Mr. Dickens. Here's a possibility:

"Before I draw nearer to that stone to which you point," said Scrooge, "answer me one question. Are these the shadows of the things that will be, or are they shadows of things that may be, only?"

Still the Ghost pointed downward to the grave by which it stood.

"Men's courses will foreshadow certain ends, to which, if persevered in, they must lead," said Scrooge. "But if the courses be departed from, the ends will change. Say it is thus with what you show me!"

FRACKING REG ISSUE - DECEMBER 20^th

Today is day 9 on the regs comment calendar. It is also the beginning of Yule, a three-day celebration that brackets winter solstice—as observed by pre-Christian, northern Germanic people. Yule is a time of "greatest mirth and joy among men." Luckily for us, three of the most mirthful traditions of Yule have been folded into Christmas: caroling, drinking, feasting.

In honor of feasting, we circle back today to reg 560.4(a)(1):

Section 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;

In other words, a drilling and fracking operation must be more than 500 feet away from any source of underground water that is used to irrigate the plants we eat or that is drunk by the animals we eat.

In practice, this reg applies mostly to pigs, chickens, and dairy cows kept indoors, as, for example, in concentrated animal feeding operations (CAFOs). These animals, by and large, drink well water. Beef cattle typically obtain their water from surface sources: creeks, streams, ponds, and pasture run-off. There are no setbacks for them. Nor for other free-range farm animals. Nor for farms that water livestock or irrigate crops from creeks, streams, lakes, and ponds.

Nor for the farmer who might, after a sweaty day of harvesting hay, want to swim in a creek, stream, pond, lake, or river. In the revised regs, there are virtually no protections of any kind for surface water. Irrigation of fruits and vegetables from surface water sources is very common.

The regs provide no precautions to shield our food from fracking-related water and air pollution. There are no setbacks for pastures, fields, vineyards, or orchards. There are no setbacks for paddocks, feeding pens, chicken coops, stables, silos, greenhouses, milking parlors, or barns. There are no setbacks for food processing activities, including slaughterhouses, cider houses, sugar shacks, sorting and packing buildings, canneries, creameries, granaries, wineries, breweries, mills, or warehouses where produce is chilled before shipping. The regs do not prohibit drilling and fracking operations from occurring immediately adjacent to any of the above nor do they prohibit drilling and fracking from occurring UNDER any of the above.

(Horizontal fracking operations send lateral wellbores that radiate out for a mile or more, like spokes on a giant subterranean bicycle wheel.)

Fracking can cause or contribute to methane migration, which occurs when stray gas travels along naturally occurring fissures and fractures under the earth, through orphaned and abandoned wells, or along cracks in well casings. As this gas seeps up to the surface, it can collect in water wells and buildings. Methane seepage in barns-full of dust, hay, and tanks of fuel—is especially dangerous, given the many and varied spark-producing activities carried on there. Barn fires often result in complete loss—destroying livestock, equipment, and dairying infrastructure (milk lines, cooling tanks, etc.).

In states where fracking is already underway, pastures, creeks, and farm ponds have been contaminated by leaking tanks of fracking fluid, malfunctioning compressor stations, and spills of fracking wastewater. Sickened livestock include cattle and goats, as documented in 2012 study of 24 farms in six states. Among cattle raised in proximity to wells or exposed to fracking wastewater, farmers report difficulty breeding and an increase in birth defects. Exposed animals living in areas that have tested positive for air, water, and soil contamination have found their way into the food system, although the extent of this problem is unknown.

Chefs for the Marcellus, a group of 150 New York chefs and food professionals, actively opposes fracking in New York. Brooklyn's Park Slope Food Coop, which buys $3 million of upstate New York crops each year, has signaled that it will shun purchases of meat and produce from gas-producing areas. New York is the third-largest producer of organic food in the United States and is the nation's second biggest wine-producing state. It ranks third among states for overall milk production. Dairy cows require 30 to 40 gallons of water a day to produce good quality milk. Cow's milk is 90 percent water.

FRACKING REG ISSUE - DECEMBER 21^st

Today, day 10 in the regs comment calendar, is winter solstice. For months, the hours between sunrise and sunset have grown fewer and fewer as the sun drifted lower and lower into the southern sky. Today, it hovers at its southernmost point. Noontime shadows are their longest. Winter has arrived.

The slanted light of the solstice sun is viewed with awe by cultures throughout the world. The axes of neolithic monuments (Stonehenge) and entire settlements (the kivas of Chaco Canyon) are aligned with its rays. In honor of the year's shortest day and longest night, we look today at the regs governing light pollution and dark sky compliance at drilling and fracking operations.

Finding none, we are left with the task of critiquing the absence of regulations.

And yet, DEC guidelines for the submission of comments request relevant section numbers. Therefore, let's attach our comments today to Section 560.6 (c)(28), which govern flare stacks. This is familiar ground: on Day 5, we looked at air pollution from flare stacks. Today, we'll use this same section as the peg on which to hang new comments that address light pollution. As preparation for writing, I recommend viewing this brief video and slide show of flaring operations in Pennsylvania.

Section 560.6 (c)(28)

The venting of any gas originating from the objective formation during flowback must be through a flare stack at least 30 feet in height, unless the absence of H2S has been demonstrated at a previous well on the same pad which was completed in the same producing horizon. Gas vented through the flare stack must be ignited whenever possible. The stack must be equipped with a self-ignition device.

Drilling and fracking operations are major sources of light pollution. Towering flames from open flare stacks light up the sky. A single flaring event can last longer than one week, with multiple flaring events common. One Pennsylvania resident, whose house is located 800 feet from a wellpad (greater than the proposed setback distance in New York State), reports visible light inside of his bedroom even with blinds and curtains both closed.

Not mentioned in these regs are two other sources of light pollution: floodlights that hover over wellpads and work lights that are directed horizontally across well pads sufficient to allow 100-person crews to work around the clock. Drilling typically goes on for four to six weeks per well. One wellpad complex typically covers three to five acres and contains multiple wellheads, which, drilled sequentially, will require months of continuous lighting. With plans for densely spaced wellpads across the landscape, flare stacks and wellpad lights will transform the nocturnal environment of rural, upstate New York.

There is no attempt to quantify the aggregate or cumulative impact of light pollution from flare stacks and well pad lights nor to mitigate its impact through regulations.

Nighttime light disorients and imperils wildlife, especially nocturnal animals and migrating birds that use the moon and stars for navigation. There are 450 such bird species. Light pollution interferes with the successful reproduction of fireflies and frogs, the pollination of night-blooming flowers, and the feeding behaviors of salamanders. Light pollution kills billions of moths important to the diet of bats. Light pollution inhibits the vertical migration of zooplankton in lakes, thereby contributing to surface algal blooms and potentially degraded water quality.

Light trespass is a public health issue. Exposure to light at night is associated with certain cancers, especially breast cancer. Constant exposure to light suppresses melatonin production and increases tumor development in both animals and people. The production of melatonin from the brain's pineal gland-a hormone that regulates circadian rhythms and plays a role in the onset of puberty-requires uninterrupted darkness. Its disruption by exposure to light at night is thought to explain why shift work is associated with higher frequencies of several cancers. The World Health Organization categorizes shift work as a probable human carcinogen.

Light pollution contributes to air pollution. At night, naturally occurring nitrate radicals in the air break apart chemicals from tailpipe exhaust and thus prevent their conversion into smog (ozone). This process of chemical disassembly requires darkness: the presence of light destroys nitrate radicals.

Recognizing that light pollution threatens ecosystem functioning and human health, the International Dark Sky Association, has since 1988, designated the nighttime environment a natural resource, which it is dedicated to protecting via guidelines on light containment. The draft regulations for fracking in New York are unaligned with these efforts.

Light pollution blots out stars and replaces a dark night sky with brown haze. How do we put a price on the loss of our right to darkness? On the loss of Orion hanging on the southeast horizon? On the loss of the Big Dipper overhead? Some behold in the firmament the handiwork of heaven itself. Others see the workings of an autonomous cosmos. Either way, for many of us living in rural, upstate New York, winter's darkness and the night's wheeling patterns of stars have meaning that is deep and imperative. A system of energy that robs us of these is unworthy of us.

FRACKING REG ISSUE - DECEMBER 22^nd

Today is day 11 in the regs comment calendar. On this date in 2010, President Barack Obama signed a new law allowing gay soldiers to serve openly the U.S. military—and a policy of mandatory concealment came to an end.

With that in mind, let's look at the restrictions on allowing gases to escape from gas wells. Tomorrow, we'll revisit this same reg and focus on the consequences for our climate, but today, let's focus on health effects. Feel free to include in your comment any personal experiences with the various health problems named below.

Section 556.2(b)

(The underlining of "workover" indicates that this word has been added since the previous, 2011 version of the regs was released.)

In other words, gas from a gas well is allowed to be released when one of four things is going on:

1. when a well is tested to see how much gas it has in it ("controlled testing of the well's potential");

2. when a just-drilled well is being prepared for production ("completion");

3. when the shale is being fracked (a "stimulation operation");

4. when a repair or improvement takes place (a "workover");

And then again also:

5. whenever the operator thinks it's necessary ("operational requirements").

('Clean-up' is a period of controlled production when 'treatment fluids' poured down the wellbore are flushed back up—as when, say, acids and solvents are used to clean out the well bore.)

Now let's add these various exemptions together. While a well is being tested, gases are allowed to escape into the air for one 24-hour day. In circumstances 2 through 4 above, the wells can remain open for 48 hours each. Thus, a single well that goes through all four expected stages—from being tested to being repaired or re-fracked—can leak gases into the atmosphere for 168 hours: seven days and seven nights. And, in addition, more venting is allowed at the operator's discretion for unforeseen circumstances.

What gases escape during this time? No one knows for sure. Monitoring is not required The industry is not required to tell. And the DEC does not ask.

Raw gas contains a variety of vaporous hydrocarbons. These are free to escape when the wellhead is open. Butane, ethane, and propane are three. Other likely fugitives are benzene, toluene, ethylbenzene, xylene, and hexanes. Benzene exposure is causally linked to leukemia, lymphoma, and cancer of the bone marrow (multiple myeloma). Blood and urine samples revealed the presence of toluene and xylene in the bodies of any residents living near drilling and fracking operations in Texas.

It is known that all of these volatile chemicals combine with tailpipe exhaust to create ground-level ozone (smog), which, in turn, is linked to asthma, chronic obstructive pulmonary disease, and heart failure.

Under these proposed regulations, New Yorkers would know neither the identity nor quantity of venting gases from the wellheads that would surround us.

"Don't ask, don't tell" combined with 168 hours of carte blanche venting is reckless policy in the densely populated state of New York. It becomes even more alarming in light of Section 560.4: the proposed minimum distance (setback) between our homes and the gas industry's wellpads is just 500 feet.

FRACKING REG ISSUE - DECEMBER 23^rd

Today is day 12 in the regs comment calendar. And it's also—as my 11-year-old woke me up this morning to report—48 hours 'til Christmas! According to Section 556.2(b), that's the same length of time that gas will be allowed to escape from gas wells while the wellbores are being cleaned of debris and fracking fluid.

As we read yesterday, the regs permit three such 48 hour periods: after a well has been prepped; after a well has been fracked; after a repair or improvement. The sum of those three open-venting occasions is 144 hours. In addition, operators are allowed to vent wells to the atmosphere for 24 hours when they are testing a well: 144 plus 24 equals 168 hours of open venting. And then, right at the end, this reg throws in a clause that allows venting for "any operational requirements," which is another way of saying "whenever the operator thinks it is necessary."

So much for math. And so much for data: measuring and reporting the air emissions from gas wells is not a requirement. Under these regs, we'd never know how much air pollution gas wells in New York would emit.

With all this accounting still fresh in our minds, let's trudge back to Section 556.2(b). Yesterday we thought hard about the possible consequences of open gas venting for our health. We noted that more than just methane (natural gas) flies out of the borehole when it's opened to the air; many other toxic gases escape as well. Today, we focus on the methane itself and ask, "What does all this allowable venting mean for our climate?" In your comment for today, feel free to include any personal encounters that you or your family might have had with the disastrous storms named Irene, Lee, or Sandy.

Section 556.2(b)

(The underlining of "workover" indicates that this word has been added since the previous, 2011 version of the regs was released.)

Climate change—and the extreme weather events it ushers in—is caused by the build-up of heat-trapping gases in our atmosphere. One of these is carbon dioxide. On the grounds that natural gas, when combusted, contributes to the atmosphere only half the carbon dioxide as an equivalent unit of coal, shale gas extraction via fracking is touted by its boosters, and at least one environmental organization, as part of the solution to climate change. In this narrative, shale gas is a "bridge" to a clean energy future.

Such logic overlooks the heat-trapping effects of unburned methane that leaks from multiple points in the gas extraction, transportation, and distribution process. Ominously, methane is far more powerful greenhouse gas than carbon dioxide. A molecule of methane can, over a twenty-year period, trap one hundred times more heat than a molecule of carbon dioxide. Luckily for us, the strongman named methane has a much shorter lifespan than its weaker cousin carbon dioxide: methane survives in the atmosphere only a few decades before falling to pieces, whereas that hoary old guy, carbon dioxide, plods along, trapping heat, for an entire century. This difference in longevity explains why, over a 100 year timespan, methane is only 33 times more potent a greenhouse gas than carbon dioxide.

To wrap up: natural gas and coal both release carbon dioxide when burned, but coal releases twice as much. Carbon dioxide is bad. It traps heat and lasts in the atmosphere for a really long time. However, natural gas is an escape artist. It can leak into the air before it is burned, something that a lump of coal cannot do. And unburned natural gas (methane) is a much worse greenhouse gas than carbon dioxide. But it doesn't last as long.

Thus, the answer to the tiresome question of whether natural gas is marginally better or marginally worse for our climate than coal hinges on what the time frame is and how much methane is allowed to leak from gas extraction and delivery system. But either way, it's clear that natural gas is part of the climate problem, not a lifeline that saves us from it.

Increasing evidence, including a study from the National Oceanic and Atmospheric Administration itself, indicates that methane emissions from shale gas fracking and its related operations have been grievously underestimated. The newest and best data we have reveal a hard truth: locking in a reliance on natural gas, especially when that gas is obtained via fracking, wrecks any possibility of reigning in greenhouses gases to a level below that which would allow us to avoid a 2° C rise in global temperature and, with it, complete climate catastrophe.

Last month, the International Energy Agency likewise emphasized the urgent need for drastic reductions in greenhouse gas emissions.

In the wake of Hurricane Sandy, Governor Cuomo vowed to lead on climate change, saying in the New York Daily News, "We will not allow the national paralysis over climate change to stop us from pursuing the necessary path for the future."

Section 556.2, which puts no firm limits on the amount of unburned methane that gas wells will be allowed to pour into our atmosphere, stops us.

FRACKING REG ISSUE - DECEMBER 24^th

If Christmas Eve has a theme song, it must be "Silent Night," a hymn that was first performed on this date at a parish church in Austria in 1818. And if Christmas Eve itself were a musical score, its dynamics would be notated with one long decrescendo, as busy preparations gradually give way to an expectant hush.

Before the stockings are hung tonight, let's find a quiet minute to consider the proposed regs on fracking-related noise. And a minute is all we need for today's comment because no such regs exist. There are no proposed limits on noise.

To satisfy the DEC's request that our comments reference a specific reg, we'll attach our thoughts to Section 560.4, which specifies how close a gas well can be located to various things like houses, wells, and floodplains. This is our second visit to this passage in the rulebook.

Section 560.4(a)(1) Setbacks

(a) No well pad or portion of a well pad may be located:

(2) within 500 feet from an inhabited dwelling or place of assembly;

In other words, gas wells can be drilled 500 feet from our homes, but there is no demonstration that this distance would provide protection from health-damaging noise levels. Indeed, all evidence indicates that it would not.

In other states, many people who live considerably farther than 500 feet away from drilling and fracking operations report very high noise levels from blasting, drilling, constant truck traffic, and the diesel engines of heavy equipment. Of these activities, drilling is the loudest, with a decibel level at the wellpad of 115. (For comparison, helicopter and jackhammers come in at 105.) Only fifteen minutes of unprotected exposure to sounds at that volume creates risk of hearing loss. Drilling a single gas well is 1-2 month process, and, during that time, sound of drilling is continuous: 24 hours per day. And there are multiple wells on each well pad to be drilled.

Noise from drilling has been measured above 55 decibels as far as 3,500 feet away from the well—a distance that is seven times farther than the proposed setback distance for New York State. Fifty-five decibels (approximately the volume of dishwasher running) is the maximum recommended level for continuous ambient sound during normal waking hours. For sleeping, the recommended maximum is 45. A classroom should be no louder than 35 decibels. Ditto hospital rooms.

Further adding to the din of drilling and fracking operations are flare stacks (see the fracking reg issue for December 16) and compressor stations, which are used to pressurize the gas and push it to its destination. Flare stacks are located on the well pad, but compressor stations are stationed along the pipeline, every 40 to 100 miles. Compressor stations are extremely noisy and run day and night. They are also, unlike drilling and flaring operations, permanent sources of constant noise.

And also note: the 500-foot minimum distance between gas wells and our homes is as measured from the well pad rather than the well site. The well pad is the platform for the drill rig itself. The well site is a much larger area around the well pad that includes all the other equipment, including generators to drive the frack pumps and the drilling motor. The roar of diesel generators can be horrific, as anyone who has lived through an extended blackout can attest, but there is no proposed setback for them.

In short, DEC's regulations fail to ensure that noise levels from the various individual activities within the shale gas extraction process do not, when summed together, exceed the recommended maximum guidelines of 40 decibels of outside noise during the part of the night when most people are sleeping. Or 35 decibels in schools where children are learning.

This oversight has enormous public health and educational consequences. A 2011 risk assessment from the World Health Organization found that, as an environmental hazard, noise pollution is second only to air pollution in contributing to loss of years of healthy living. Chronic exposure to unwanted noise is linked to heart disease, cognitive impairment, hearing loss, ringing in the ears, and elevated blood pressure. These effects are seen even when sleep is not disrupted, but they are worse when it is. Noise disturbance also diminishes attention span and academic performance of children, especially affecting tasks involving language and memory. According to the WHO report, exposure to chronic noise pollution during childhood "could potentially impair development and have a lifelong effect on educational attainment."

Other states, such as Colorado, have noise pollution standards for drilling and fracking operations. These standards, which supplement local municipal noise ordinances, specify allowable decibels measured at a fixed distance from the drilling site. New York's regs contain no noise pollution standards at all.

There is a reason that "silent" precedes "holy" in the first line of the famous Christmas carol. And it's the same reason that the words "peace" and "quiet" are spoken in the same breath.

FRACKING REG ISSUE - DECEMBER 25^th

Today is Day 14 in the regs comment calendar. And it is Christmas. In nativity scenes everywhere, donkeys, sheep, shepherds, and kings—made of clay, wood, plastic, and porcelain—circle around figurine babies. In adoration.

Mindful that newborns and pregnant women are everywhere—in the stables, on the roads, living near drill rigs—let's look today at two passages in the Revised Regulatory Impact Statement, a document that accompanies the revised draft regs.

The purpose of this document is to provide "detailed explanations" of the projected impacts of the proposed regulations—and, by extension, the fracking that will accompany the regulations. Included here are things like costs to industry, extra paperwork, more road repair, and so on. We focus today on section 4, paragraph 8, which anticipates costs to the NY Department of Public Health:

Revised Regulatory Impact Statement
4. Costs to the Department and the State

DOH will incur costs investigating possible public health issues. DOH would also be expected to have a [sic] maintain its significant role in human exposure and risk assessment, protection of drinking water supplies, toxic substance assessment, handling of NORM, possibly conducting population health studies, and providing health information and education.

[NORM is naturally occurring radioactive material, such as radium, which contaminates fracking wastewater.]

Now let's skip down to section 8, where the document considers the possible impacts of alternative approaches—including the "no-action" alternative. That is, NOT allowing any fracking in New York.) Here's what it says:

Revised Regulatory Impact Statement
8. Alternatives Approaches

Another alternative the Department has considered is the denial of permits for HVHF in New York State. This alternative would fully protect the environment from any environmental impacts associated with HVHF but it would also eliminate all of the economic benefits that could be generated by the activity. This alternative also contravenes New York State's declaration of policy in Article 23 of the ECL to develop oil and gas resources that will maximize the ultimate recovery of those resources.

[HVHF is high-volume hydraulic fracturing. ECL is Environmental Conservation Law.]

In other words, the DEC anticipates that one cost-related impact of fracking under these regulations will be a rise in the reporting of possible public health problems. These will necessitate investigation. Other impacts for the DOH: more assessing of toxic substances, more assessing of human exposures, and more assessing of health risks. And more dealing with radioactive substances.

The state could avoid these costs if it chose the no-action alternative (otherwise known as a ban on fracking). In so doing, it would sidestep the anticipated task of assessing human exposures (along with the need to publish reports with titles such as, "The Impact of Drilling and Fracking Operations on the Health of New Yorkers Living in Areas of Intensive Shale Gas Extraction"). However, that option directly contradicts a standing policy that says New York must maximize its extraction of oil and gas.

Here, on this day of peace and good will toward all, are four questions to ponder as you compose your comment:

New studies show that west Antarctica is thawing twice as fast as previously believed and so is on track to contribute mightily to rising sea levels around the world. Why, in an age of looming climate crisis, does New York have a law on the books that mandates maximal exhuming of fossil fuels? It seems…out of touch.

Is it okay to balance anticipated "economic benefits" against anticipated "possible public health issues?" What if those who get the money are not the same people as those who get the health issues?

What about the economic costs of the health issues themselves? Preliminary research from Pennsylvania finds evidence of harm to newborn babies whose mothers spent their pregnancies living near drilling and fracking operations. Should we not insist on definitive research before we place New York's infants at risk? If nothing else, developmental problems in newborns are expensive and often necessitate lifelong medical and educational interventions.

Why is the DOH able to conduct public health assessments of fracking after the fact but not in advance, as part of a comprehensive Health Impact Assessment, which is designed exactly for this purpose and for which New York's medical community has repeatedly asked?

TODAY'S FRACKING REG ISSUE - DECEMBER 26^th

Today is Day 15 in the regs comment calendar and thus its equinox. (Time to take stock: have you sent in 15 comments yet?) Throughout the former British Empire, it is also Boxing Day. This holiday harkens back to a time when the serving and laboring classes—often indentured to masters—were granted a day's respite to visit their families. Accompanying them on the journey were boxes given them by their employers. These contained gifts, bonuses, and, very often, leftovers from the lordly Christmas table.

On this Boxing Day, let's acknowledge the hardworking "servants" of New York, who have been forgotten in the DEC's calculations of employment. To do this, we turn to the revised Job Impact Statement, which is attached like a sidecar to the revised regs motorcycle. As a requirement of regulatory review, the DEC must detail the costs to employment that New York will incur as a result of its rulemaking, which, in this case, means asking, "What will happen to jobs if New York State is opened to fracking under our set of proposed regulations?"

Feel free to describe, in your comment, any income or employment opportunity that you believe you may lose if New York State is opened to fracking. If you are a business owner or taxpayer who intends to move out of the state if fracking is permitted, now would be the time to alert the DEC. Uninterested in a career as a waster hauler? Write about that.

Revised Job Impact Statement
High-Volume Hydraulic Fracturing - 6 NYCRR Parts 52, 190, 550-556, 560, and 750
Nature of Impact

The proposed revised rules, implemented in combination with the Final SGEIS, once issued, will have a positive impact on jobs and employment opportunities for such businesses as waste haulers, construction firms and providers of lodging, food and other services. Positive impacts will be created through direct employment, induced employment and indirect effects. This impact is expected to be concentrated in the counties where the Marcellus and Utica Shales are more likely to be commercially producible. Lesser though still positive impacts may also be experienced in adjacent localities and statewide.

Categories and Numbers Affected. The proposed revised rules themselves will not negatively affect employment opportunities, and the activities guided by the proposed revised rules will create jobs.

And to the question about possible jobs losses in, say, the tourism, agriculture, winemaking, or real estate sectors:

Regions of Adverse Impact

There are no regions of the State expected to be negatively impacted from the proposed revised rules.

Once more, in case you missed it:

Minimizing Adverse Impact

The proposed revised rules are not expected to have an adverse impact on jobs and employment.

And furthermore:

Self-employment Opportunities

…there will be opportunities for self-employment for supporting industries like waste hauling, water hauling, cement mixing, construction, lodging, and food services. There may also be opportunities for self-employed consultants to advise well operators on how to comply with the proposed revised rules.

In other words, DEC entirely denies any job losses whatsoever, in any sector of the economy, as a consequence of opening New York State to fracking under its set of proposed regulations. To make such a claim, the agency entirely ignores reams of evidence to the contrary, some of which it has received as expert commentary during previous public comment periods.

The DEC's assertions lack a time frame and ignore the temporary nature of the jobs created. According to a critical report prepared for the Southern Tier Central Planning and Development Board, the vast majority of the employment generated by natural extraction is concentrated in the drilling phase, which lasts only 10-15 years, leading to a boom and bust economic cycle.

The Job Impact Statement ignores data showing that most job growth will benefit non-local workers.

The Job Impact Statement ignores data on projected losses in jobs from tourism (caused by industrialized viewscapes and heavy truck traffic on rural roads) and decreased revenue from hunting, fishing, and other outdoor recreation in upstate New York—and thus job losses in the businesses that support them (as a consequence of habitat loss and degraded streams).

The Job Impact Statement ignores declines in property values and lost revenue from the real estate industry. Some areas of the Catskills are already suffering from a drop in home sales as a result of anxiety about anticipated drilling.

The Job Impact Statement treats all jobs equally, ignoring costly occupational hazards of the jobs directly created by the industry. Gas industry jobs are dangerous, toxic jobs. Oil and gas industry workers have an on-the-job fatality rate seven times that of other industries. Workers on the well pad are exposed to airborne silica in ways that cannot be fully mitigated with use of respiratory protection. Silica exposure is definitively linked to silicosis and lung cancer. The Job Impact Statement ignores the direct and indirect costs of disabling injuries and illnesses common to this industry.

The Job Impact Statement ignores the economic and employment losses associated with the destruction of productive farmland and pastureland caused by the construction of well pad, pits, access roads, and pipelines.

The Job Impact Statement ignores trends from other states. Data from Western states show that counties reliant on energy development underperform economically and suffer diminished future competitiveness. In Pennsylvania, counties with intensive drilling experienced a 19 percent decrease in both milk production and number of dairy cows, whereas counties with no drilling performed showed no appreciable change over the same time period. Reasons for the decline are unclear.

New York ranks third in the nation in number of certified organic farms. All together, New York farms sold $107 million in organically produced commodities in 2011. Organic food is a rapidly growing industry. Nationally, organic product sales nearly doubled between 2008 and 2011.

According to Governor Cuomo's press release for last October's Wine, Beer, and Spirits Summit, "New York is home to more than 450 wineries, breweries, distilleries, and cideries, and many more new businesses open every year. Wine, beer, spirits, and cider producers account for more than $22 billion in annual total economic impact in the state and support tens of thousands of jobs statewide. The state ranks third in the nation in wine and grape production, has the second-most distilleries, and three of the top-producing 20 brewers in the United States are located in New York."

There are no projected job losses as a result of fracking the trout streams, hunting grounds, hiking areas, vineyards, orchards, hayfields, and pastures of New York? Show me the data.

FRACKING REG ISSUE - DECEMBER 27^th

Today is day 16 in the regs comment calendar. It is also the 500^th anniversary—yes, you read that right—of the Laws of Burgos. On this date in 1512, the Spanish crown set forth a lengthy set of rules to govern the conquest of the New World. The Laws of Burgos were drafted as a response to reports of horrific cruelty on the part of Spaniard colonizers in regards to their behavior towards the indigenous peoples of the West Indies.

The rules were exceedingly detailed and strict. Compulsory integration of Indians into work groups directed by Spanish overlords was allowed—but women more than four months pregnant could not be sent into the mines. Also, the newly landless must be issued huts and hammocks. Conversion to Catholicism was mandatory—but the punishment for skipping services could not exceed the loss of one day's rest. Also, the churches had to be located near the mine entrances.

The Indians of Hispaniola all died anyway—mostly from the cumulative impact of disease and maltreatment. And the Laws of Burgos—ineffective and flagrantly disregarded—are now viewed as little more than the legalization of abuse. Which goes to show: you can't regulate an atrocity.

Today, we are looking at a very short reg that governs an issue with a very long history:

SECTION 560.6(c)(24) Well Construction and Operation: Drilling, Hydraulic
Fracturing and Flowback

Diesel fuel may not be used as the base fluid for hydraulic fracturing operations.

Right away, this reg is a puzzle. By definition, the base fluid for hydraulic fracturing is water. (Otherwise, it would be called "diesel fracturing.") And, indeed, the glossary within the regs document itself— 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."

These regs do not explicitly prohibit the use of diesel fuel as an additive in fracking fluid.

And that's a big deal. Even with all the loopholes in federal laws that exempt fracking from federal oversight, the federal Safe Drinking Water Act still applies when fracking fluid contains diesel. It's has been singled out as a special hazard for two reasons:

1) diesel fuel is full of benzene, which is a proven human carcinogen; and

2) tiny of amounts of diesel fuel are capable of contaminating huge amounts of drinking water. (Benzene is fairly soluble in water.)

Why do fracking operators use diesel in the first place? First of all, it's oily and, hence, can prevent fractures from swelling shut when they are exposed to lots of water. Second, diesel works well to deliver sand into the cracks of the newly shattered shale once it's fracked. (These grains of sand, called proppants, are miniature doorstops that keep the cracks propped open so the gas can flow out.) Also, diesel brings "optimal performance" to the thick Jello-like chemicals that carry the sand grains around the bend—from the vertical to the horizontal part of the well shaft. And there are at least three other reasons on top of those.

It's important to understand how attractive diesel is to fracking companies. If it's allowed to be used, it's used. Even when it's not allowed to be used, it's used. Indeed, a Congressional probe found that the use of diesel in fracking fluid is widespread—in flagrant disregard of the Safe Drinking Water Act. (Under this law, any company that uses diesel in fracking fluid must apply to the EPA for a permit. However, with no system in place for processing the permits, there is an effective ban on the use of diesel in fracking fluid, although it is a prohibition widely ignored.)

Between 2005 and 2009 alone, 32 million gallons of diesel-containing fracking fluid were sent down the boreholes of gas wells in 19 different states—heading straight through groundwater aquifers as they went. Secretly. Without permits. Even after companies claimed that they had stopped using diesel, they were still using diesel, according to the results of this 2011 Congressional investigation.

As a result, national environmental groups have called on the EPA to ban the use of diesel in fracking fluid explicitly. Meanwhile, the DEC has left the door open for its use in New York State.

FRACKING REG ISSUE - DECEMBER 28^th

Today is day 17 in the regs comments calendar. It is also the 39^th birthday of the Endangered Species Act. Signed into law on this date in 1973, the ESA administers the famous list of endangered and threatened species—from snails and butterflies to owls and lynxes—and provides for programs to prevent them from going over the extinction cliff. It's a vast and multi-disciplinary effort: ESA's lead federal agencies are the U.S. Fish and Wildlife Service and the U.S. National Oceanic and Atmospheric Administration.

Notably, the ESA was conceived when a Republican president (Nixon) declared that previous efforts at conservation had entirely failed and called on Congress to do something meaningful. A team of scientists was then put to work writing the law itself.

Not including whales and sea turtles, New York State is currently home to 18 listed species— 9 endangered and 9 threatened. Let's look today at how the regs for fracking intend to protect those that live atop the Marcellus Shale. That discussion is found in Section 705-3.11(f)(3):

750-3.11 HVHF general permit

(f) The following activities are ineligible for coverage under an HVHF general permit and would require authorization under an individual SPDES permit:

(3) HVHF operations that adversely affect a listed or proposed to be listed endangered or threatened species or its critical habitat;

In other words, a drilling and fracking operation that imperils a listed species or its habitat cannot operate under a general permit. Instead, it must seek an individual permit under the State Pollutant Discharge Elimination System. SPDES is a state program that oversees the dumping of wastewater and the discharge of storm water runoff to rivers and streams as well as to groundwater. (The SPDES program is relevant to fracking because every well pad will experience storm water runoff at some point.)

Three loopholes in this reg are big enough for a humpback whale (Megaptera novaeangliae, officially endangered) to swim through:

This reg does not explain the requirements for an individual permit, nor are the terms of the individual review presented. Will it require any more scrutiny beyond a rubber stamp?

This reg provides no requirements for a field assessment for endangered species or rare habitat. Any meaningful assessment would have to include a four-season, site-specific, on-the-ground survey.

This reg does not say what would trigger a positive determination that a well pad would "adversely affect" an endangered plant, animal, or natural community. Nor does it specify who gets to do the determining.

Beyond loopholes, this reg is inherently illogical. New York State's primary method for determining the presence of an endangered species is through a database maintained by the Natural Heritage Program. Not only is this program woefully underfunded, its information comes mainly from surveys of public lands whereas the vast majority of drilling will occur on private lands.

This reg lacks biological sense. It does not consider intrusion upon the whole landscape, which is at the root of understanding what threatens an uncommon species with vanishing. By operating on a gas well by gas well basis, the permitting process set in motion by this reg ignores the cumulative impact of thousands of projected gas wells and a labyrinth of pipelines and access roads.

As the architects of the 1973 Endangered Species Act well knew, protection of vulnerable species happens on a landscape level. You can't prevent an endangered flower from going extinct unless you also protect the habitat of the bee that pollinates it…and the habitat of the bird that disperses its seeds…and the habitat of the predator that picks off its pests. That's Ecology 101.

This reg could have hinged a well permit's acceptance upon the driller's obligation to protect endangered species. It does not.

Here are some other facts that you may wish to consider as you compose your comment:

For each Marcellus gas well, an average of 8.8 acres of forest is cleared and an additional 22 acres of forest is negatively affected.

A new study of the impact of fracking on biodiversity predicts dire consequences for the northern wild monkshood, a forest flower that is exquisitely sensitive to salt, competition from invasive species, and disturbance. Pollinated only by bumblebees, monkshood grows in primarily in Marcellus Shale forests and is listed as a threatened species in New York State. There are no provisions for its protection in these regs.

There are no provisions made in these regs for the endangered Chittenango amber snail. This entire species has dwindled to a single remaining population that is confined to one locality in New York State: Chittenango Falls State Park in Madison County (southeast of Syracuse). Recognized by its translucent shell, the amber snail feeds on the microscopic algae it finds within the spray zones of waterfalls. (Now, just one waterfall.) Were the upstream watershed to be polluted by fracking waste or salty brine, this species would be in danger of extinction.

In short, the regs don't disallow the destruction of habitat where endangered and threatened species live. They just require drillers to seek a special permit. What would Richard Nixon say?

FRACKING REG ISSUE - DECEMBER 29^th

Today is day 18 in the regs comment calendar. On this date in 1813, British troops burned Buffalo, New York to the ground in an act of retaliation for the December 10th torching of Newark (in Canada) by American troops. Described by historians as "a complicated mess," the War of 1812 featured privateers, turncoats, un-enforceable embargoes, failed regulations, and a group of hot-headed Congressmen known as the War Hawks. Public opposition to all the plundering and razing was squelched by those who believed that a rush to war was the solution to America's problems.

Two centuries later, and in the hope of a different outcome in the rush to drill, let's look at the regs on fracking pits. This is a complicated mess of a topic, so we'll take two days for the job.

For today, let's stop first at 560.2(b)(14) to get our definitions straight because everything about pits, as it turns out, hinges on this one:

Section 560.2(b)(14)

'high-volume hydraulic fracturing' shall mean the stimulation of a well using 300,000 gallons or more of water as the base fluid in the hydraulic fracturing fluid per well completion. In determining whether the 300,000 gallon threshold has been met, the department will take into account the sum of all water-based fluids, including fresh water and recycled flowback water, used in all high-volume hydraulic fracturing stages.

And now, onto 560.6(c)(7), which governs HVHF well construction and operation:

Section 560.6(c)(7)(i-ii)

(7) A closed-loop tank system must be used instead of a reserve pit to manage drilling fluids and cuttings for any of the following:

(i) horizontal drilling in the Marcellus Shale unless an acid rock drainage mitigation plan for on-site burial of such cuttings is approved by the department; and

(ii) any drilling requiring cuttings to be disposed of off-site.

In other words, open pits are not allowed for the storage of fluid waste that flows back out of a well after it is fracked (a million gallons or more) nor for dumping the mud, clay, and broken rocks that come up from the miles-long bore hole during drilling (the so-called drill cuttings). Until they can be hauled away for burial elsewhere, these wastes have to be held in closed tanks. (We examined the problems of "elsewhere" on Day 4.)

And that sounds reassuring EXCEPT—

drillers can still seek DEC approval for digging a pit and burying drill cuttings right next to the well pad. Drill cuttings from the Marcellus are often radioactive;

the rules are specific to drilling in the Marcellus Shale, not other shale layers;

the rules apply only to horizontal drilling, not vertical drilling;

the rules apply only to high-volume drilling, which excludes—by the DEC's definition—operations that use fewer than 300,000 gallons to frack.

Through any of the above loopholes, open-air fracking pits could be permitted in New York. (We will look more closely at the 300,000-gallon loophole tomorrow.)

Open-air pits are bad because—

the liquid they contain can overflow during storms, leach, spill, or seep through cracks in the liner, and so contaminate ground and surface water. All these outcomes have occurred in Pennsylvania.

they are a significant source of odors and hazardous air pollutants caused by the evaporation of the chemicals they contain.

They can poison birds, wildlife and livestock.

The specs for how to construct such pits are found in Section 560.6(a)(4). Here, you may find inspiration for your comment. Are its provisions pleasing and acceptable to you?

560.6(a) Well Construction and Operation: Site Preparation

(4) Any reserve pit, drilling pit or mud pit on the well pad must be maintained in a leak-free condition, and such pits which will be used for more than one well must be constructed as follows:

(i) total pit volume may not exceed 250,000 gallons, or 500,000 gallons for multiple pits on one tract or an adjacent or related tract of land under common ownership or control;

(ii) pit sidewalls and bottoms must be adequately cushioned and free of objects capable of puncturing or ripping the liner;

(iii) pits constructed in unconsolidated sediments must have beveled walls (45 degrees or less);

(iv) the pit liner must be sized and placed with sufficient slack to accommodate stretching;

(v) liner thickness must be at least 30 mils and be compatible with the drilling muds and well fluids;

(vi) seams must be factory installed or field seamed in accordance with the manufacturer's specifications.

FRACKING REG ISSUE - DECEMBER 30^th

Today is day 19 in the regs comment calendar. It is also the fifth day of Kwanzaa, a week-long celebration of seven core principles within African-American culture. The fifth principle is Nia—the Swahili word for "purpose"—and it is dedicated to restoring the community and elevating its greatness.

And fracking—the American word for "blow up your community's bedrock and cash it out"—is dedicated to its opposite.

Today we continue our investigation of the regs on fracking waste pits.

Let's all recall from yesterday that the prohibition on open pits for the temporary storage of frack waste applies only to high-volume fracking. It turns out that just about everything in the new regs applies only to high-volume fracking:

Section 560.1(a) Applicability

This Part applies to all vertical and directionally drilled wells, including horizontal wells, where high-volume hydraulic fracturing is proposed.

Here, once again, is the DEC's definition of what high-volume means:

Section 560.2(b)(14)

'high-volume hydraulic fracturing' shall mean the stimulation of a well using 300,000 gallons or more of water as the base fluid in the hydraulic fracturing fluid per well completion. In determining whether the 300,000-gallon threshold has been met, the department will take into account the sum of all water-based fluids, including fresh water and recycled flowback water, used in all high-volume hydraulic fracturing stages.

In other words, gas wells consuming less than this threshold would still be governed by the old regs—which were last substantively updated in 1972. Thus, the new regs will introduce a double standard. Depending on water use, some wells will be regulated by the new regs, and some by the old regs.

It gets worse. In 1972, fracking involved less than 80,000 gallons. Thus, not only do the new regs create a two-tiered system, there exists also, between the tiers, a vast no man's land. Falling into this gap are wells using between 80,000 and 299,999 gallons of water.

To express the situation in regulatory language: The old regs were developed when fracking involved less than 80,000 gallons. The proposed new regs govern high volume fracking, which is defined in the regs rulebook itself as fracking that uses 300,000 gallons or more. This situation opens a "chasm of protection" between the two thresholds with no analysis of the environmental impacts of natural gas wells that use more than 80,000 gallons and less than 300,000 gallons of water.

What does this all mean for waste pits? Plenty. The revised draft SGEIS estimates that 10 percent of the gas wells developed in the future will be vertical wells, many of which will use less than 300,000 gallons per frack. If so, these wells will be allowed to use open waste pits. In addition, all wells using less than 300,000 gallons of water will be free of the new emissions standards, the various setback requirements, and the other environmental protections required of high-volume wells under the new regs.

To recap: The proposed regulations fail to create a unified standard of environmental protection for gas wells. Instead, they create a two-track system of regulatory control that will inevitably lead to abuse and unanticipated environmental degradation—and will open waste pits in somebody"s backyard. With no justification whatsoever, these regs create an arbitrary 300,000-gallon threshold. This cut-off is more than triple the water requirements considered by the old regs and thereby opens a chasm between protections.

The situation so created is irrational and dangerous. The only reasonable conclusion that one can reach is that these regs are being promulgated not with the intent to protect the public health and environment of New York but to serve as a loophole-riddled system to be gamed by industry. Not acceptable. Game over.

FRACKING REG ISSUE - DECEMBER 31^st

Today is day 20 in the regs comment calendar. And it's New Year's Eve. Tonight, people all around the world will be watching a New York City street festival that culminates in the midnight plunge of a 12-foot diameter, Waterford crystal ball. (There's an app for that.)

Originating as an outdoor party in 1904, the Times Square ball drop has evolved into a global tradition, and, since 2004, the musical selection for the final minutes before midnight is "Imagine." This year, Train will perform that iconic song—with up to a million people on hand to hear it.

And all of them will have New York City tap water pulsing in their blood.

Even those who prefer their water from bottles can't escape it. NYC water is in the coffee, tea, and frappuccinos. It's in the bagels. It's in the pizza crust, sushi rice, noodles, hummus salad, Indian dahl, oatmeal, and Greek lemon chicken soup.

Manhattan's water, with the help of gravity, is carried into the city via tunnels built in 1914 and 1936. These underground aqueducts deliver what many claim is the best-tasting tap water in the world. In this, New York City's water system is like an Upper East Side dowager: fragile but still fabulous.

Through this antiquated infrastructure, water is ferried from a 1,900-square-mile watershed of interconnected lakes, marshes, streams, and reservoirs high in the Catskill Mountains. It is surface water, not groundwater. Typically, surface drinking water is run through a filtration plant before it is sent into people's homes. But NYC tap water is filtered by wilderness: 85 percent of land area of its watershed is forest and most of the rest is farmland. Other than Syracuse, New York City is the only municipality in New York State whose residents drink unfiltered surface water.

Before the ball drops, and as we wait for the opening C-major chords of John Lennon's anthem to self-reliance, let's look at what the proposed regs have to say about New York City's water. Turn to Section 750-3(a):

750-3.3(a) Prohibited Activities and Discharges

The prohibitions in this section are in addition to those listed in section 750-1.3 of this Part, unless in conflict, superseded or expressly stated otherwise in this section. Well pads for HVHF operations are prohibited, and no SPDES permit will be issued authorizing any such activity or discharge:

(1) within 4,000 feet of, and including, an unfiltered surface drinking water supply watersheds;

(2) within 500 feet of, and including, a primary aquifer;

(3) within 100-year floodplains;

(4) within 2,000 feet of any public (municipal or otherwise) drinking water supply well, reservoir, natural lake,man-made impoundment, or spring; and

(5) within 2,000 feet around a public (municipal or otherwise) drinking water supply intake in flowing water with an additional prohibition of 1,000 feet on each side of the main flowing waterbody and any upstream tributary to that waterbody for a distance of one mile from the public drinking water supply intake; and

(6) within 500 feet of a private water well or domestic use spring, or water supply for crops or livestock, unless the Department has granted a variance from the setback pursuant to subparagraph 560.4(c) of this Title, adopted on XX, 20XX.

In other words, drillers cannot frack within the New York City watershed and must stay 4,000 ft. (= three-quarters of a mile) away from its boundary. No exceptions. No special permits. The definitions section makes clear that the watersheds of both New York City and Syracuse are off-limits:

750-3.2(b) Definitions

(49) Unfiltered surface drinking water supplies means those public drinking water supplies that the EPA or New York State Department of Health have determined meet the requirements of the "Interim Enhanced Surface Water Treatment Rule" (IESWT Rule) for unfiltered drinking water supply systems. The IESWT Rule is a December 16, 1998 amendment to the Surface Water Treatment Rule that was originally promulgated by EPA on June 29, 1989. In New York State, this includes the New York City Drinking Water Supply Watershed and the Syracuse Drinking Water Supply Watershed.

There are two ways to critique the 4,000-foot rule, depending on whether your loyalties lie upstate or down. Feel free to send in two separate comments, if your allegiances run in both directions.

For upstate loyalists: The issue is unequal protection under the law. Private water wells are also unfiltered sources of drinking water. Thousands of rural New Yorkers rely on private wells. Why are they granted only a 500 ft. buffer while New York City residents receive a level of protection eight times as great? And why do people relying on New York's 18 primary aquifers, which are the sole source of drinking water for many upstate municipalities, also receive only 500 feet of protection?

Does a child living in a Broome County valley not deserve as much drinking water protection as a child in a Brooklyn brownstone? Shouldn't drinking water protection be determined by scientific merit rather than by population density and political representation? Why should the New York City standard not apply for all?

Second, the assertion that municipalities with water filtration systems require less protection than those with unfiltered systems rests on the presumption that water filtration systems are effective at removing chemicals found in frack fluid and frack waste that might spill (or chemicals that might bubble up from the shale itself, including barium and radon). There is no evidence that this is true, and plenty of evidence suggesting it is not.

For downstaters: At issue is risk of a catastrophic problem to the drinking water system of eight million people. The new regs overlook vulnerabilities in the system. A 4000-foot setback for drilling does not prevent transport of waste water and fracking chemicals through the watershed nor the consequent risk of surface spills into streams and reservoirs.

The new regs do not protect infrastructure facilities that lie outside the watershed. There is no protection for the aging underground aqueducts, which are not reinforced nor built to withstand vibrations and pressures from nearby drilling operations. The aqueducts already are cracked and fissured. We know this because they leak millions of gallons each day. These leaky tunnels are in direct contact with the Marcellus Shale, which is also cracked and fissured. Some natural fractures and fault lines near the NYC watershed extend for up to seven miles (= 36,960 feet), which is a considerably greater distance than 4,000 feet.

If any one tunnel collapsed, major parts of the city would be out of water, and the fix would take years to execute. If sediment or other pollution degraded the New York City watershed, the estimated cost of a filtration system would be $6 billion.

Risks that create the possibility, however small, of calamitous, irremediable outcomes are not acceptable risks. Imagine there's no fracking. It's easy if you try.

FRACKING REG ISSUE - JANUARY 1^st

Today is day 21 in the regs comment calendar. Happy New Year! On January 1, 1909, drilling began at an oil well in Kern County, California that would, three months later, become known as Lakeview Gusher Number One. At first, only natural gas came up. Then, at 2,440 feet, pressurized oil blew out the well casing. A thar-she-blows gusher sent a 200-foot fountain of crude oil into the air.

It blew through a containment box hastily built over the wellhead. It sent rivers of crude across the land. And it flowed for 544 days.

When Lakeview Gusher Number One finally died out in September 1911—eighteen months later—9.4 million barrels of oil had spilled. Less than half was captured; most evaporated or seeped into the ground. Set in motion on this date 104 years ago, the Lakeview Gusher remains the biggest oil spill in U.S. history. It left behind mounds of congealed oil and turned soil into asphalt. The land, permanently ruined, is now designated as California Historical Landmark number 485.

Let's resolve, on this New Year's Day, that, by our actions, no lake view community in New York State will ever bear such a commemorative plaque.

Our comment today is step one. Please turn to Section 560.5(c), which governs emergency response protocols in the case of "non-routine" accidents. Today's reg is a long one, but it's not difficult to understand:

Section 560.5(c) Testing, Recordkeeping and Reporting Requirements

Any non-routine incident of potential environmental and/or public safety significance during access road and well pad construction, well drilling and stimulation, well production, and well plugging that may affect the health, safety, welfare, or property of any person must be verbally reported to the department within two hours of the incident's known occurrence or discovery, with a written report detailing the non-routine incident to follow within twenty-four hours of the incident's known occurrence or discovery. Non-routine incidents of potential environmental and/or public safety significance may include, but are not limited to: casing, drill pipe or hydraulic fracturing equipment failures, cement failures, fishing jobs, fires, seepages, blowouts, surface chemical spills, observed leaks in surface equipment, observed pit liner failure, 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 incident that may affect the health, safety, welfare, or property of any person. Provided the environment and public safety would not be further endangered, any action and/or condition known or suspected of causing and/or contributing to a non-routine incident must cease immediately upon known occurrence or discovery of the incident, and appropriate initial remedial actions commenced. The required written non-routine incident report noted above must provide details of the incident and include, as necessary, a proposed remedial plan for department review and approval. In the case of suspended hydraulic fracturing pumping operations and non-routine incident reporting of such, the owner or operator must receive department approval prior to recommencing hydraulic fracturing activities in the same well. The department may issue an order to take appropriate actions consistent with this subdivision, including an order to cease all activities.

In other words, in the event of an accident that threatens health, safety, welfare, or property, a gas well operator must get in touch with the DEC within two hours. There is no requirement for calling appropriate emergency responders or for notifying nearby residents and property owners.

In the event of an emergency, we teach four-year-olds to call 911. And we tell them to do it right away.

Two hours for the gas industry? And who's answering the phone at the DEC?

New Year's Resolution for 2013: 104 years of blowouts and well casing failures is enough. It's time to build an energy infrastructure in New York State that doesn't threaten us with explosions, fires, toxic leaks, chemical spills, drinking water contamination, and hazardous air pollution. I pledge myself to the task.

FRACKING REG ISSUE - JANUARY 2^nd

Today is Day 22 in the regs comment calendar. It is also the birthday of Dutch astronomer, Antonie Pannekoek, who was born on this date in 1873. The founder of astrophysics, Dr. Pannekoek devoted himself to understanding the structure of the Milky Way galaxy. For this work, he received the Gold Medal of the Royal Astronomical Society. A lunar crater and an asteroid both bear his name.

Pannekoek was also a central figure in the political life of his times, known for his writings on workers' rights. He warned against "social Darwinism," the idea that extermination of the weak is in accordance with nature's plan. Indeed, as Pannekoek wrote in 1909, animal groups in the natural world seldom persist by feats of individual strength but often by acts of mutual aid. In his work, Pannekoek demonstrated that rigorous science and vigorous public engagement are not mutually exclusive.

Today, in honor of both science and public engagement, we look at the scientific source materials used to justify the proposed regs.

This will be easy work. There are none.

The revised regs and the revised regulatory impact statement have attached to them no footnotes, endnotes, citations, references, or bibliography that would indicate the scientific basis for any of the proposed regs or that would describe how particular studies were used as a basis to formulate particular regs.

On the one hand, this omission is no surprise. The revised, draft Supplemental Generic Environmental Impact Statement (SGEIS) that is said to serve as the scientific underpinning for the regs is not yet finished. The DEC itself admits that its November 29th release of the proposed regs was a maneuver to avoid blowing a legal deadline. The proposed revised regs—on which we now have nine more days to offer comments—are placeholders that bought the DEC a 90-day extension. During that time, the SGEIS must be finished and the regs themselves must be revised to reflect its conclusions.

[OPTIONAL FOOTNOTE NUMBER ONE. And, because I always cite my sources, here is how the DEC explains that situation in its introduction to the regs. Feel free to skip over this red-lettered section to reach the "on the other hand" paragraph.

High Volume Hydraulic Fracturing Proposed Regulations

6 NYCRR Parts 52, 190, 550-556, 560, and 750

In order to receive the needed extension, DEC was required by law to refile the draft regulations a long 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.]

On the other hand, a state law requires that the DEC cite its sources when it generates new regulations (also called "rules"). This law is part of the State Administrative and Procedures Act. And if reading this law seems like a tedious task, skip right on down to the green font and start writing your comment.

[OPTIONAL FOOTNOTE NUMBER TWO. More specifically, 9 N.Y.Prac., Environmental Law and Regulation in New York § 3:40 (2d ed.) states:

"A 1991 amendment to SAPA § 202-a requires DEC and other agencies to identify in the RIS studies that served as the basis for the rule, and to explain the agency's use of such studies:

Where one or more scientific or statistical studies, reports or analyses has served as the basis for the rule, the statement shall contain a citation to each such study, report or analysis and shall indicate how it was used to determine the necessity for or the benefits to be derived from the rule."

Provision Directly Quoted from SAPA § 202-a. Regulatory impact, NY STATE
ADM PRO § 202-a

3. (b) …A statement setting forth the purpose of, necessity for, and benefits derived from the rule, a citation for and summary, not to exceed five hundred words, of each scientific or statistical study, report or analysis that served as the basis for the rule, an explanation of how it was used to determine the necessity for and benefits derived from the rule, and the name of the person that produced each study, report or analysis;

6. Each agency shall issue a revised regulatory impact statement when:

(i) the information presented in the statement is inadequate or incomplete, provided, however, such revised statement shall be submitted as soon as practicable to the secretary of state for publication in the state register, provided, further, if such statement exceeds two thousand words, the notice shall include only a summary of such statement in less than two thousand words;
(ii) a proposed rule contains any substantial revisions and such revisions necessitate that such statement be modified. A revised statement shall describe the reasons for such changes and shall include any modifications in the regulatory impact statement that are necessary as a result of such changes; or
(iii) there are no substantial revisions in the proposed rule but there are changes in the text of the rule as adopted when compared with the text of the latest published version of the proposed rule and such changes would necessitate that such statement be modified. A revised statement shall describe the reasons for such changes and shall include any modifications in the regulatory impact statement that are necessary as a result of such changes.]

In other words, the DEC is required by law to cite the basis for its proposed regulations, yet not a single study is cited in the regs. The public is being asked to comment on sensibleness of regulations that do not come accompanied with references to scientific studies.

About this shameful situation, James Northrup notes, "one might be left to conclude that these regulations were merely crafted out of bureaucratic expediency with most input from the industry the DEC purports to regulate."

Because the DEC has asked us to attach our comments to specific regulations, we'll need a section number to serve as the basis for our complaints about the lack of footnotes. Here below are four to choose among. But feel free to troll through all the previous regs we've commented on together and choose your own favorite. You may also wish to share, in your comments, any personal experiences you may have had with the academic consequences of failing to cite source material.

Governor Cuomo has promised that his decision to permit or prohibit fracking in New York State will be based on science. DEC, where is your science?

Possible supporting materials:

The 500 ft. buffer rule in Section 560.4: Please show us the data indicating that this setback is sufficient to protect the health and safety of residents living near gas wells.

560.4 Setbacks

(a) No well pad or portion of a well pad may be located:

(2) within 500 feet from an inhabited dwelling or place of assembly;

The 45-day limit on liquid fracking waste in open pits in Section 560.7: Exactly which studies demonstrate that this time frame will prevent human exposures to evaporating solvents and other hazardous air pollutants?

Section 560.7(a) Waste Management and Reclamation

Fluids must be removed from any on-site pit and the pit reclaimed no later than 45 days after completion of drilling and stimulation operations at the last well on the pad, unless the department grants an extension pursuant to paragraph 554.1(c)(3) of this Title. Flowback water must be removed from on-site tanks within the same time frame.

The 48 hours + 24 hours + ?? rule on venting gas in Section 556.2: Based on the findings of previous papers, please estimate total amount of fugitive unburned methane that will be released via venting and predict how these emissions may impact climate stability. Show your work.

Section 556.2(b) Operating Practices

No gas from any gas well, except such as is produced in a clean-up period not to exceed 48 hours after any completion or stimulation operation or workover, plus that used for the controlled testing of the well's potential in a period not to exceed 24 hours, plus that used in any operational requirements, shall be permitted to escape into the air. [Extensions of these time periods shall be granted administratively by the department upon application therefor by the owner or operator and the demonstration of sufficient good cause.]

The 500 ft., 2,000 ft., and 4,000 ft. rules for drinking water supplies in Section 750-3.3: Do the numbers below come from research? Or do you just make this stuff up?

Section 750-3.3(a) Prohibited Activities and Discharges

Well pads for HVHF operations are prohibited, and no SPDES permit will be issued authorizing any such activity or discharge:

(1) within 4,000 feet of, and including, an unfiltered surface drinking water supply watersheds;

(2) within 500 feet of, and including, a primary aquifer;

(3) within 100-year floodplains;

(4) within 2,000 feet of any public (municipal or otherwise) drinking water supply well, reservoir, natural lake,man-made impoundment, or spring; and

FRACKING REG ISSUE - JANUARY 3^rd

Today is day 23 in the regs comment calendar. On this date in 1977, Apple Computer was incorporated. Thirty-six years later, we walk around with libraries in our pockets. iPod. iPhone. iPad. Killer apps. Content syncing.

In awe of information technology, let's turn to Section 560.5(f) in the regs, which specifies how gas well operators are to keep records on the disposal of their waste.

Recall that there is a lot of it and it comes in four varieties:

broken rocks removed from the bore hole (drill cuttings);

chemical goop and clay used to lubricate the drill bit (drilling muds);

fracking fluid that spews up out of the hole immediately after a well is fracked (flowback fluid);
fracking fluid that continues to burble up from the hole after the well is attached to a pipeline and is producing gas (production fluid).

Recall also the federal exemptions. Chemicals used in fracking operations are allowed to remain trade secrets. In addition, fracking waste products are allowed to escape classification as hazardous waste even though, chemically speaking, they're hazardous. (Drill cuttings are radioactive. Drilling muds are toxic. Fracking fluids are full of salts, heavy metals, solvents, and biocides.) Because of this second exemption, fracking waste can be treated like ordinary industrial waste.

And, finally, recall Section 560.7: the operator gets to decide how to dispose of the wastes. Since we've already commented on possible downside of letting the gas industry invent the plan for waste disposal, let's now look at how the operator will document the execution of its plan:

Section 560.5(f) Testing, Recordkeeping and Reporting Requirements

A Drilling and Production Waste Tracking Form must be completed and such completed forms shall be retained for three years by the owner or operator, transporter and destination facility for any used drilling mud, flowback water, production brine and drill cuttings removed from the well site and must be made available to the department upon request during this period. For any such waste disposed instead of recycled or reused, the owner or operator must make the completed Drilling and Production Waste Tracking Form available to the public on the owner's or operator's publically available website within 30 days of receipt of the waste by the disposal facility. Upon department request, the owner or operator shall be responsible for obtaining and providing to the department a copy of any completed Drilling and Production Waste Tracking Form with the signatures of the transporter and destination facility for any such waste removed from a well site covered by a permit to drill issued to the owner or operator pursuant to Part 552 of this Title.

In other words, the owner or operator must post onto its website a tracking document for all the waste that leaves the site. The owner or operator has 30 days after the final deposition of waste to do so. That information must stay on the website for three years. The signatures of the transporter and receiver of the waste are not required unless the DEC asks for them.

Some questions to consider as you compose your comment:

By what definition is this tracking? Tracking is GPS and FedEx. Tracking is radio collars on mountain lions. The post office and the pizza delivery guy offer tracking. But once something has been buried in the ground for 30 days, we are no longer tracking it.

Why, in the age of iCloud, does uploading data to a website require a month? By point of comparison, the Pony Express required only 10 days to deliver a letter on horseback from Missouri to California. (And its riders were also required to renounce gambling, drinking, and use of profane language. Evidence-based reasons suggest the same is not true for employees of the gas industry.)

Why are the records allowed to disappear after three years? The consequence will be that the generations of New Yorkers who come after us—or we ourselves ten years hence—will have no knowledge of where all the fracking waste is buried.

This reg has no specific requirement for the disposal facilities. It does not specify what kind of vehicle can be used for transporting the waste. There are no recording requirements for how much waste is loaded into the vehicle. There are no recording requirements for how much waste is unloaded from the vehicle at its destination. Nor for the route that the vehicle will take along the way.

Why not? Is there a spreadsheet programming problem in the waste hauling industry?

And finally, can these regs prevent this crime in Greene County, PA from happening here in New York State?

Attorney general appeals sentence for wastewater dumping

Dec. 28, 2012—The state attorney general's office filed an appeal with the state Superior Court this week, claiming Greene County Judge Farley Toothman's probationary sentence given to Robert Allan Shipman was unreasonable and "did not fit the crime"…

Shipman, of New Freeport, was accused of illegally dumping drilling wastewater, sewage sludge and restaurant grease into area streams, a mine shaft and on various properties throughout the area between 2003 and 2009.

He also was accused of stealing more than $250,000 by overbilling companies that hired him to haul and dispose of wastewater by-products.

Shipman pleaded guilty in February to two counts each of theft, conspiracy, receiving stolen property and tampering with public records, 10 counts of unlawful conduct and eight counts of pollution of waters…

FRACKING REG ISSUE - JANUARY 4^th

Today is day 24 in the regs comment calendar. It's also the Eleventh Day of Christmas. Alas, almost none of us are still out making merry, as in days of old when people actually knew how to throw a twelve-day party (to commemorate a line-up of saints). But, thanks to the lyrics of a catchy, medieval carol, we all know about the eleven pipers piping. And we ALL know ALL the lyrics because "Twelve Days of Christmas" is written as a "cumulative song," which means new verses are piled atop the old ones, in a form of progressive addition, creating a repeating list of words and a repeating melodic phrase.

Cumulative songs lend themselves to memorization, which makes them useful as mnemonic devices. Many Jewish songs, in both Hebrew and Yiddish, are cumulative, including Echad Mi Yode'a, which is sung at Passover Seders.

Our focus today is cumulative impacts. This refers to the total harm to the environment that results from combinations of assaults and stressors over time. The concept of cumulative impacts acknowledges that adverse effects can add up until they surpass the limits of a system's ability to withstand them. (Or, you might say, until the system can no longer forget them.)

Looking at cumulative impacts is important because many catastrophes can't be predicted by considering the effects of individual stressors in isolation from each other. To use a time-honored example: you could spend a long time examining single pieces of straw and conclude that they pose no significant threat to the skeletal integrity of camels. If so, you might never anticipate that piling on a dozen bales will break the camel's back. What matters is not the last straw but the cumulative impact of all of them plus the camel driver and his carry-on luggage. And a partridge in a pear tree.

The failure of the environmental impact statement—the sGEIS—to consider the cumulative impacts of drilling and fracking operations was the focus of many withering criticisms during the two different comment periods for that draft document. How do the regulations address cumulative impacts? They do not. At all.

Let's attach our comments to Section 560.3, which addresses what information needs to be submitted for DEC review as part of an application to drill. Just skim this passage over quickly:

Section 560.3 Application Requirements, Procedures and Fees

(a) Application requirements. In addition to the requirements found in Part 552 of this Title, an application for a permit to drill, deepen, plug back or convert a well subject to this Part shall contain information specified on a department-approved form including:

(1) measured from the ground surface, the minimum depth to the top of the objective formation for the entire proposed length of the wellbore;

(2) the estimated maximum depth and elevation of bottom of potential fresh water, and the basis for such estimate (water well information, other well information, previous drilling on the well pad, published or private reports, or other department-approved source);

(3) the proposed total volume of water-based fluid, including a breakdown of individual volumes of fresh water and other water-based fluids, to be used in hydraulic fracturing and the basis for the estimate of proposed total volume of fluid;

(4) the proposed source or sources of fresh water and other water-based fluids and the status of approvals needed to withdraw any such water…

Section 560.3 goes on and on like this for many pages, but what should be apparent is that the DEC collects information from operators—and grants permits—on a one-well-at-a-time basis. These regs do not require operators to submit their entire drilling plan for review (which is the requirement in other states, including Colorado). This straw-by-straw approach means there is no regulatory structure for the cumulative industrialized impact of the thousands of wells that would be proliferating across the landscape each year for the next 30 years.

Death by a thousand cuts would be another name for the likely outcome.

Neither do the regs attempt to constrain the cumulative impact of drilling infrastructure: the maze of pipelines, access roads, condensers, compressor stations, chemical storage depots, waste pits, and frack sand processing facilities that will also spread out across a large, regional landscape. Without considering the entire gas extraction and delivery process over its entire lifespan, there is no way to ensure the integrity of New York's ecosystems—or indeed prevent their wholesale collapse.

And because the regs offer no framework for controlling or even measuring the sum total of all the resulting air and water pollution, there is also no way to ensure that public health is protected.

So, there are two ways to go in your comment for today:

1) You could focus on the failure of the regs to address the cumulative impact of fracking on human health. You could ask the DEC, for example, how their staff has analyzed the impact of noise pollution from drilling plus high traffic density plus loss of green space for exercise and recreation. In this context, cumulative impacts refers to

"the exposures, public health or environmental effects from the combined emissions and discharges, in a geographic area, including environmental pollution from all sources, whether single or multi-media, routinely, accidentally, or otherwise released. Impacts will take into account sensitive populations and socio-economic factors."

If you or members of your family have a personal history of cancer—as do I—you may consider choosing this tack. The best science indicates that cancer is the end result of multiple stressors adding together over time to alter the genetic signaling pathways within our cells. When it comes to cancer, the cumulative impact of many small straws is what breaks the camel's back. And fracking, which introduces cancer risks from the start and into perpetuity, brings with it a lot of straws—from radium and radon to benzene and diesel exhaust.

2) Alternatively, you could elaborate on the failure of the regs to address the cumulative impact of fracking on New York's environment. What will happen if pollination systems fall apart because of forest fragmentation? What will happen if the total sediment load from multiple well sites within a single watershed silts up a trout stream to the point where fish gills can no longer function? There is no indication from these regs that any meaningful effort has be made to prevent habitats from becoming so fragmented that species simply disappear.

Chillingly, the DEC predicted as much in the most recent version of the sGEIS:

"Significant adverse impacts to habitats, wildlife, and biodiversity from site disturbance associated with high-volume hydraulic fracturing in the area underlain by the Marcellus Shale in New York will be unavoidable…"(page 7-77)

In making this admission, the DEC abdicates its core purpose: to conserve the environment upon which all of us—the swans a swimming and the maids a milking—depend. And that's shameful.

DEC, do your job. If you can't regulate fracking in a way that avoids "significant adverse impacts," then stand up and say we can't frack.

FRACKING REG ISSUE - JANUARY 5^th

Today is day 25 in the regs comment calendar. And tonight is Twelfth Night, the traditional end of the Christmas season. In ancient times, celebrants went out on this night to wassail their apple trees—meaning to wish them good health and good blossoming in the year to come—all the while consuming an alcoholic cider of the same name. And they also appointed a Lord of Misrule to preside over the annual Feast of Fools.

All of which puts us in the right frame of mind for today's topic: compulsory integration.

Also known as forced pooling, compulsory integration means that a landowner can't refuse to participate in a fracking operation if most of the neighbors have already signed leases with a gas company. In essence, it's a legally enforced surrender of subterranean property rights.

Compulsory integration is similar to eminent domain, which occurs when the government seizes private land for some public purpose, such as the construction of a highway or a school. However, in this case, a private company is doing the seizing and is using the property to make profits, while the government's role is to supervise the transaction.

Typically, if you are forced to participate in a gas well, you can do so as either a partner in the well itself or as a royalty interest owner. Compulsory integration does not give the gas company right of access to the surface of your property (as does voluntarily signing a lease), but it does allow the gas company to tunnel sideways under your property with lateral wellbores, blow apart your bedrock, and inject the shards with toxic chemicals.

Compulsory integration dates back to the days when large pools of free-flowing oil or gas were still being discovered. A single pool that extended below many different properties created a dilemma: if everyone erected a drill rig on their own property, the wells could end up too close together and create a fire hazard that would endanger everyone. But if only one well went in, it could drain a common pool that sat beneath the property of many, enriching one person while everyone else's share of the fossil fuel flowed out their neighbor's well. Compulsory integration was the legal solution: compel all the landowners who lived above a common pool of oil to share one well to drain the whole pool and then share the profits.

Applying compulsory integration to horizontal fracking, however, is something else altogether. The gas is not in a pool; it doesn't flow on its own. Instead, it's trapped as tiny bubbles inside of the bedrock itself. To force the gas to the surface, the rock has to be shattered. To do that, gas drillers have to build infrastructure—a mile-long lateral wellbore—and send it directly under everyone's property, whether everyone wants a lateral well bore tunneling under their house—or drinking water well or barn—or not.

Compulsory integration for gas drilling was codified in New York State in 2005 with the passage of Bill S5553-B, which amended Title 9 of Article 23 of the Environmental Conservation Law. And it was a bill that was drafted by the gas industry. The law says that if a drilling company can obtain leases on at least 60 percent of the area within the spacing unit, it can force those who say no to leasing to join against their will. (A spacing unit is all the area to be drained by a single well. It's typically 640 acres, which is a square mile. In order to receive a permit to drill from the DEC, the operator of the well has to demonstrate that it has made the necessary arrangements with all the property owners in that area.)

What do the regs have to say about compulsory integration? There is only one substantive mention, and that appears not in the regs itself but in a corollary document that summarizes the main themes of the 650 comments that were received a year ago on the first draft of the regs. The Assessment of Public Comments Summary notes that last year's public comments did, in fact, include concerns about compulsory integration. It then goes on to assert that the topic is "beyond the scope of this proposed rulemaking" because it is prescribed by statute. So, our earlier comments on compulsory integration did not result in any amendments to the revised regs.

I believe there is value in raising the issue again—if only to comment on the DEC's logic for dismissing us the first time. We'll attach our thoughts to that section of the regs that governs spacing units.

Section 553.3 Well Spacing

(a) The department shall issue a permit to drill, deepen, plug back or convert a well, if all applicable requirements are met and the proposed spacing unit conforms to statewide spacing provided in section 553.1 of this Part.

(b) For wells which meet statewide spacing requirements, issuance of a permit to drill, deepen, plug back or convert a well shall establish the spacing unit for the permitted well.

Four questions to ponder as you compose your comment:

Is it okay that "an applicable requirement" for a drilling permit includes the forced conscription of up to 40 percent of upstate New York landowners into the gas extraction business?

Exactly why is the construction of a sideways tunnel beneath someone's home not an act of trespassing?

Dumping sand, toxic chemicals, and polluted water on the surface of someone else's property would be considered a violation of property rights. Why is it okay to deposit these things underneath?

Compulsory integration puts land under lease to the gas industry that would otherwise not be used to for fossil fuel extraction. In an age of climate change, how is this in the public interest? And what about the landowner who would like to conserve his or her gas for future generations?

Two excerpts:

"All mortgages prohibit hazardous activity and hazardous substances on the property. The involuntary integration of properties into hazardous industrial sites risks the foreclosures of thousands of mortgages and can only serve to further depress construction starts in an already unstable economy" (A Critical Review of the Compulsory Integration Requirement, Nov. 2011).

"No person shall be held to answer for a capital, or otherwise infamous crime, unless on a presentment or indictment of a Grand Jury, except in cases arising in the land or naval forces, or in the Militia, when in actual service in time of War or public danger; nor shall any person be subject for the same offense to be twice put in jeopardy of life or limb; nor shall be compelled in any criminal case to be a witness against himself, nor be deprived of life, liberty, or property, without due process of law; nor shall private property be taken for public use, without just compensation" (Fifth Amendment to the U.S. Constitution).

And one Shakespearean quote:

"If this were play'd upon a stage now, I could condemn it as an improbable fiction."

--Fabian, in Twelfth Night, a play in which everyone is fooled, normal life is turned upside down, and reality no longer makes sense. Except that it's really funny and no one gets hurt.

FRACKING REG ISSUE - JANUARY 6^th

Today is day 26 in the regs comment calendar. In the Western Christian calendar it is also Epiphany, which commemorates the arrival of the three Magi and a miracle made manifest. More generally, "epiphany" refers to any profound revelation.

Even DEC employees can have epiphanies. Out of a belief that many good people work within that agency—including those who are going to be put to work reading our many comments—I'm going to suggest that we begin today, and all five days remaining until the Jan. 11 deadline, with a direct appeal to our readers.

Some employees in the DEC must have direct knowledge about gas industry influence on DEC decision-making. Somebody must know about what really happened to all the previous comments we submitted on the sGEIS, about the ongoing secret health review, and about all manner of things related to the process by which these regs were released in the first place. There must be DEC employees with access to documents and emails that contain, well, profound revelations.

I have in mind something like this:

Dear DEC comment reader,

Whoever is reading this, please speak out. Be a whistleblower. Save the lives of many New Yorkers and the health of generations to come. You will find great support among a plurality of New Yorkers who know the truth about this practice. You will be a hero.

And, because Frack Action has set up a dedicated post office box for this purpose, let's also include the following information on this and all future comments:

Whistleblowers can mail information anonymously to--
PO Box 6956
450 Central Ave.
Albany, NY 12206

And with epiphanies in mind, let's now turn out attention to cement well casings.

Engineers once presumed that, absent a shoddy cementing job, well casings provided a permanent, unbreachable barrier between the fractured shale and the drinking water aquifers above. But revelations and manifestations have occurred.

First, some basics: After a borehole is drilled from the surface of the earth all the way down to the gas-containing shale—which can be a mile-long hole—steel pipe is lowered into it. Once assembled, it's called a casing string. The casing string then cemented in place to stabilize the wellbore and—importantly, for our conversation—to seal off the deep shale, which is full of brine, radioactivity, hydocarbons like butane and benzene, and, of course, methane—from the aquifers that lie above it.

Gas wells can have multiple layers of casing string and cement all nested inside of each other. The outermost layer of cement is called surface casing. The regs expound in great detail about how exactly well casings are to be created.

What the regs do not address is failures of well casing integrity over time. Neither do they provide protocols for the identification and repair of compromised casings. Let's comment about the shocking absence of such regulations by attaching our complaints to Section 560, which govern Operations Associated with High-Volume Hydraulic Fracturing.

Here below are two subsections that lay out the regs for casing and cementing. (If you are truly interested in cement rules, there are eight other subsections to peruse.)

Section 560(c)(10)(ix,x)

(ix) after the cement is pumped, the owner or operator must wait on cement (WOC) until the cement achieves a calculated (e.g., performance chart) compressive strength of at least 500 pounds per square inch gage (psig), and a minimum WOC time of 8 hours before the casing is disturbed in any way, including installation of a blowout preventer or a rig skid. The owner or operator may request a waiver from the department from the required WOC time if the owner or operator has bench tested the actual cement batch and blend using mix water from the actual source for the job, and determined that 8 hours is not required to reach a compressive strength of 500 psig; and

(x) a copy of the cement job log for any cemented casing string in the well must be available to the department at the well site during drilling operations, and thereafter available to the department upon request. The owner or operator must provide such log to the department upon request at any time during the period up to and including five years after the well is permanently plugged and abandoned consistent with Part 555 of this Title. For multi-well pads, the five-year term specified in this paragraph shall begin after the last well subject to Part 552 of this Title is permanently plugged and abandoned pursuant to a plugging permit issued by the department.

In other words, there are rules to ensure that the newly poured cement sleeve, once it's hardened, can withstand pressure before other hardware can be installed. And there are rules about how to keep a record of all the cementing work, but there are no requirements to monitor cement well casings over time to check for corrosion, stress cracks, or what the industry calls "microannuli."

A microannulus is a small gap between the cement sheath and the steel pipe inside it. It can be caused by movement, temperature changes, and changing stresses in the wellbore.

Microannuli are a big deal. Industry studies have found that gas wells routinely develop leaks that allow gas and other vaporous contaminant to migrate from the shale into overlying water supplies. Sustained leakage through microannuli was the route. These can develop over time and after repeated exposures to the extreme pressures of fracking, so that even a flawless cement job can end up as a compromised well casing.

Data from in Pennsylvania show that about 6-7% of new wells drilled in each of the past three years have compromised structural integrity. Over time, these failures rates, as shown by the industry's own studies, reach very high levels: fifty percent over 30 years.

This risk increases over time as the cement ages and shrinks. Moreover, repeated re-fracking of wells—which requires pressures exceeding 7,000 pounds per square inch and which induce small-scale seismic events—can sabotage the structural integrity of cement well casings further.

In addition to microannuli, cement well casings leak from the outside—when the surface casing shrinks back from the surrounding rock. No technological fix is possible, no matter how many layers of steel cement are laid down. Cement is simply not able to serve as an immortal barrier, forever preventing volatile toxicants contained within the shale bedrock from entering overlying groundwater resources. The title of this article posted on an industry website openly admits the problem: "Shale Gas Casing and Cementation Will Fail, but When?"

As a result of these failures in the integrity of cement, toxic chemicals and substances can be released into the environment—if not right away, then in generations to come.

This is a fundamental problem. Until there are proven ways to prevent well casing failures that last forever, the DEC should permit no fracking in New York State. To do otherwise is to lay time bombs under the earth.

TODAY'S FRACKING REG ISSUE - JANUARY 7^th

Today is day 27 in the regs comment calendar. On this date in 1975, the prestigious Bollington Prize was awarded to upstate New York's own A.R. Ammons, a nature poet who wove both scientific data and ecstatic praise into his verse. As poet-in-residence at Cornell University, Ammons was fascinated with the shifting fluidities of biological systems, and he occasionally typed very long poems on scrolls of adding machine paper. Ammons wrote, "though I have looked everywhere / I can find nothing lowly / in the universe."

Ammons is also the author of my very favorite two-line poem:

Their Sex Life

One failure on
Top of another

Although he died ten years earlier, I feel certain Archie Ammons would have enjoyed the findings of a 2011 paper, "Life in the Deep Subsurface," published in the journal Geology, which reveals that life extends far deeper into the dark heart of the planet than geologists presumed possible just a few decades ago. As it turns out, the radioactive, magma-warmed rocks a mile below our feet house complex communities of organisms: "life in the deep subsurface is ubiquitous and comprises a larger proportion of the biomass on Earth."

Geologists now believe that, by weight, more than half of all life on Earth likely lies within deep geological strata. That's important to know. That much biomass means that below-ground organisms almost certainly play a role in the global carbon cycle and may also very likely participate—in ways we don't yet understand—in regulating the Earth's climate system.

This underground microflora consists of bacteria, fungal filaments, and an ancient domain of life called Archaea. All these need to be killed off during fracking operations because these microbes can feed on the fracking gels and proliferate inside the well casings, thus interfering with the flow of gas. The industry name for this phenomenon is bio-fouling.

Along with deep-life organisms, the water used to frack a well can also contain "lowly" life forms—especially if that water is sucked out of rivers, streams, or lakes. These surface microbes, too, can proliferate in the warm temperatures a mile below and sheathe the inside of well casings.

The industry solution to bio-fouling is biocides: potent, all-purpose poisons that are added to fracking fluid to wipe out all living organisms in the well and in the bedrock—whether they originate from the sunlit surface or are indigenous to the deep, dark shale. Biocides are substances used to kill living things. Of all the toxic chemicals in fracking fluids, biocides are the most lethal.

Section 560.69(c)(9) Well Construction and Operation: Drilling, Hydraulic Fracturing and Flowback

Only biocides registered for use in New York may be used for any operation at the well site. Products must be properly labeled, and the label must be kept on-site during application and storage.

According to industry, biocides represent about .001 percent of fracking fluid's total volume.

If 3 to 5 million gallons of fluid are used for a single frack job, 30-50 gallons of biocide are poured down every gas well and forced into the cracks of the fractured shale. That's a bathtub of poison with every frack.

Biocides registered for New York State are found within this list of NYS registered pesticides.

Questions to ponder:

What happens to the biocides during a chemical spill, blowout, or a well casing leak?

Are ALL deep-life bacteria, Arachaea, and fungus killed by biocides? Might some still be alive when the fracking flowback comes up to the surface? If so, could these species colonize our drinking water? Could they become invasive in rivers or lakes? Are they pathogenic?

If fracking flowback waste is run through municipal sewage treatment plants, what happens to the biocides? Will they kill off the beneficial microbes used to break down organic matter? (If so, increased nitrogen will be sent downstream, resulting in algal blooms and dead zones.)

Does the mass poisoning of deep-life ecosystems bring unintended consequences for human life?

If the DEC has no answers to above questions, can it be said that this reg provides sufficient protection for public health and environmental integrity?

What would A.R. Ammons say?

And don't forget to open or close your submission with a direct plea to the DEC employees whose job it is to read our comments. Something like—

To those in the DEC who read this, please consider raising your voice and speaking out for the health of children across the state and generations to come. Expose the nature of the process going on behind the scenes and the disregard for science.

Whistleblowers can mail information anonymously to--

PO Box 6956
450 Central Ave.
Albany, NY 12206