February 13, 2013
No Fracking without Regulations!
"If the DOH Public Health Review finds that the SGEIS has adequately addressed health concerns, and I adopt the SGEIS on that basis, DEC can accept and process high-volume hydraulic fracturing permit applications 10 days after issuance of the SGEIS. The regulations simply codify the program requirements." DEC Commissioner Martens on 2/12/12
Can the DEC issue HVHF drilling permits without Regs??
NO FRACKING WAY!
Well, they can certainly try that approach, but the DEC seems to be forgetting that it is obligated to follow the law, abide by their own policies, and not act in an "arbitrary and capricious" fashion.
The DEC has already
- declared in the 2009 SGEIS that new regulations would be issued,
- actually proposed draft HVHF regulations,
- declared in the 1992 GEIS that the gas drilling regulations (which haven't been updated since) needed revision to conform to 1981 amendments to the gas drilling statute, and
- has not made even the basic amendments to the regulations required by the 1992 SGEIS in order to bring the regulations up to 1988 standards.
The DEC does not have the authority to radically depart from the course of action it set out on, to act contrary to the DEC's own policies and determinations, or in an unreasonable, arbitrary and capricious way. And it is unreasonable and without basis for the DEC to try to backtrack and issue HVHF gas drilling permits without first issuing proper and protective gas drilling regulations.
CEDC is prepared to sue the DEC to stop any attempt by the DEC to issue HVHF gas drilling permits before comprehensive amendments to the DEC's gas drilling program have been put in place.
Without a finalized SGEIS, the DEC will not be able to meet the deadline for promulgating its proposed HVHF regulations. The DEC will have to start the rulemaking procedure from scratch (and with more comprehensive regulations). The DEC does not want to restart the rulemaking process - they'd rather just skip it.
If the DEC tries, as Commissioner Martens suggested it will, to issue HVHF permits without having adequate regulations in place, it will have bought itself at least one lawsuit - and one that we believe the DEC has little hope of winning.
No SGEIS for at least a "few more weeks"
The Commissioner of the Department of Health, Dr. Shah, wrote a letter to the Commissioner of the DEC, Joe Martens, on 2/12/12 and informed the DEC that the Department of Health's review of the SGEIS would take a "few more weeks."
By way of background, the SGEIS is a supplemental environmental review of the Department of Mineral's regulatory gas drilling program as it relates to "High Volume Hydraulic Fracturing." This environmental review is mandated by a state law called the State Environmental Quality Review Act, or SEQRA.
The SGEIS for HVHF was ordered in 2008 by then Governor Patterson when a law was enacted that provided for 640 acre spacing units. Previously the standard "spacing unit" was 40 acres. The Governor ordered the supplement to the 1992 GEIS for gas drilling to address citizen concerns about new environmental impacts from horizontal drilling in bedrocks like the Marcellus shale.
The DEC released an initial draft of the SGEIS in 2009 and then a revised draft SGEIS in 2011. The public commented extensively on both drafts of the SGEIS, and many demanded that the DEC include a study on the impacts to public health in the SGEIS. This past September, the DEC requested that the Department of Health (DOH) review the health impact analysis included in the SGEIS (but the DEC would not agree to a full blown health impact assessment).
The DOH appointed three outside experts to assist with its review and the DEC had hoped that the DOH review would be complete by now.
However, on 2/12/12, the DOH reported that its review would not be completed for a "few weeks."
OK, so what does that mean?
The DEC cannot issue permits for HVHF gas drilling until the SGEIS is completed.
The SGEIS cannot be completed until the DOH reports back to the DEC. So there can be no HVHF gas drilling permits until after after the DOH reports back to the DEC.
In response to Dr. Shah's letter, DEC's Commissioner Martens stated that if the DOH find that the SGEIS adequately addresses public health impacts that the DEC will proceed to finalize the SGEIS and begin processing permits 10 days after that without having the HVHF regulations in place.
The DEC will miss the HVHF Regulation Deadline and the proposed HVHF Regs will Expire
The delay in the DOH review of the SGEIS means that the DEC will be unable to meet the deadline for finalizing the proposed HVHF regulations and they will expire. New regulations will require a new round of public hearings and comment.
As explained above, the SGEIS is an environmental impact review and is required under a state law called SEQRA. The purpose of the environmental review is usually to identify potential impacts from an individual project, and is sometimes to review "generically" the environmental impacts from an entire regulatory program.
Back in 1992, the DEC appears to have properly understood the relationship between the 1992 GEIS and the traditional gas drilling regulations. The Findings Statement declared:
"The State's oil, gas, solution mining and gas storage regulations have not been updated since 1982 and extensive regulatory revisions are needed. ... One of the major purposes of this generic environmental impact statement is to present the framework, justification and recommendation for essential regulatory changes to these industries in New York State."
So GEIS first and regulations second. And if the DEC were to proceed in a rational manner and if it followed its own determination, it would have updated and amended its gas drilling regulations after the 1992 GEIS was completed. And then when HVHF came to the scene, the DEC would complete a supplemental environmental review (the SGEIS), and then after determining the potential environmental impacts, adopted further new amendments to the gas drilling regulations to ensure protection of public health and the environment.
But the revised regulations that the 1992 GEIS
proposed were never promulgated.
And the DEC has been trying to avoid enacting gas drilling regulations, having a preference to rely on "permit conditions" and relying on regulations that haven't been substantially updated since 1972.
It wasn't too surprising that when the 2011 SGEIS was released, GONE was the language from the 2009 SGEIS that stated after the SGEIS process was complete, the DEC would "be in a position to rationally determine what additional measures or procedures should become fixed principles that would supplement or improve the Department's existing regulatory framework"
In the fall of 2011, using the same comment period and public hearings used for the SGEIS, the DEC issued proposed draft HVHF regulations. And just as the DEC has to comply with the provisions of SEQRA in completing the SGEIS, the DEC must also follow New York State law in the process of adopting or amending the proposed HVHF regulations.
The law governing the regulatory process is called the State Administrative Procedures Act or "SAPA." The purpose of SAPA is to guarantee "that the actions of administrative agencies conform with sound standards....It insures that equitable practices will be provided to meet the public interest."
SAPA imposes specific time limits on the rulemaking process. Specifically, SAPA generally requires that all rules be adopted (or expire) within one year of the date of the last public hearing on the proposed rules. For the HVHF regulations, that deadline was November 29, 2012. The DEC was not able to meet this deadline. So the DEC invoked a provision of SAPA that allows for the one year deadline to be extended for another 90 days. (SAPA § 202(3))
OK, What Does This Mean?
This means that the proposed HVHF regulations need to adopted no later than February 27, 2013. But the HVHF regulations cannot be adopted until AFTER the DEC adopts the SGEIS. A step in "completing" the SGEIS is publishing a Notice of Completion of the SGEIS in the Environmental Notice Bulletin (ENB). No sooner than ten days after the Notice is published, but before taking any other action, the DEC must issue a written findings statement.
The February 13th deadline that has been looming large in the press, and on our minds, came from a combination of the publishing schedule of the ENB (Wednesdays) and the ten day "waiting period." The Notice has to be submitted at least one week before it gets published. In order to get the Notice of Completion published 10 days prior to February 27th, the Notice would have to be submitted tomorrow. And the DOH has made it clear that that isn't going to happen.
This means that the DEC will have to start over with the rulemaking process for the proposed HVHF regulations IF it promulgates the regulations.
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be happy and free from suffering :)
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