Revised draft environmental review from NYS shows promise, but also serious gaps to be filled

Last Friday, Governor Cuomo’s Department of Environmental Conservation released its as-yet-incomplete revised draft environmental review on proposed new fracking (the so-called “Preliminary Revised Draft Supplemental Generic Environmental Impact Statement” or “revised DSGEIS”).  As I blogged a little over a week ago, this document represents the latest step in the on-going environmental review process being undertaken by NY in an effort to evaluate the risks of proposed new gas drilling before allowing new drills to break ground.

Later this summer, DEC is expected to release the complete revised draft document, at which time it will hold a formal public comment period.  In the meantime, this preliminary draft gives us a strong indication of the direction in which the state is proposing to go.

As we begin our in-depth review of the new document, we wanted to post our initial reactions on some key elements.  We do so with the important caveat that we, like many others across the state, will be taking our time – and relying on the input of a highly qualified team of specialized experts – to review the document comprehensively.  So this list of first reactions should be treated as only a very preliminary one.  As our review proceeds, we are sure to have much to add.

The basic takeaway is this.  As I last blogged (on the basis of the press release issued by DEC in advance of reviewing the full document), there are some real and important improvements in this new draft over the deeply flawed one issued under the former Paterson administration.  These represent a step in the right direction toward appropriate regulation of this dangerous and controversial activity.  But, as ever, the devil is in the details.  On reviewing the document released last Friday more carefully, it is clear that there remain some very serious gaps in DEC’s proposed regulatory approach that must be filled if the state is going to fulfill its promise to be the first in the nation to assure that human health and the environment are protected to the maximum possible extent before moving forward with risky new fracking.

As The New York Times editorialized Friday, “The final environmental assessment and the detailed regulations to follow must be tightly drawn before New Yorkers can be confident that the gas will be extracted with minimum risk.”

Following is a list of some initial top-level concerns:

The New York City and Syracuse Watersheds.  The upstate watersheds that supply half the state’s population with unfiltered drinking water serve as a national model for watershed protection and sustainable economic development.  In the revised environmental review, DEC states that it will not issue permits, and will propose regulations that prohibit any fracturing, within these watersheds.  This is an extremely positive development.  However, the 4,000-foot buffer area proposed around these watersheds is not enough to prevent horizontal drilling from actually taking place under the watersheds, as horizontal drilling could extend up to a mile (5,000+ feet) in length from a well pad located outside this buffer area.  If these areas are to be fully protected, the agency will have to clarify that it will not allow any horizontal drilling to occur under the watersheds.  (As for the adequacy of the 4,000 foot buffer itself, and every other buffer discussed below, we await the input of our technical experts.)

NYC Water Supply Infrastructure.   As shown on the map below, the reservoirs of the west-of-Hudson portion of the NYC watershed (which lies above the Marcellus Shale formation and supplies 90% of NYC’s drinking water) are connected by a system of tunnels and aqueducts, significant portions of which fall outside the boundaries of the watershed itself.  In a crucial blunder, the state is not proposing to put this infrastructure off-limits to new drilling.  These tunnels, the building of which commenced back in the 1940’s, are already in a dilapidated state.  The Delaware Aqueduct – which transports about 50% of the water from the west-of-Hudson watershed to the City – has been leaking 30 million gallons of water per day for more than two decades, which DEP is currently undertaking a $2.1 billion project to address.

We are concerned about two specific risks from drilling on or around the infrastructure:

 1)  a threat that vibrations and shaking from drilling activities could jeopardize the stability of the tunnels themselves; and

 2)  a threat that fracking fluids or other contaminants could migrate in and around the vicinity of the drilling rigs and enter the tunnels via small cracks or fissures in the tunnel walls – potentially contaminating NYC’s drinking water even if the watershed itself is protected

Based on like concerns, DEP proposed a 7-mile buffer to protect this critical element of the City’s drinking water system in its comments on the initial DSGEIS.  

In light of these risks, the state’s proposed approach appears to represent a dire threat to New York City’s drinking water supply.  DEC needs to prohibit drilling around any infrastructure that falls outside the watershed limits.

Private Water Wells.  The state is proposing to require a 500-foot setback from any private drinking water wells in which drilling would be prohibited.  This is substantially greater than that required in other states.  But, among other concerns, DEC inexplicably would allow individual landowners to waive that 500-foot buffer.  In theory, DEC’s 500-foot buffer is based on the best available scientific evidence as to what is necessary to protect public health and drinking water supplies. The government has a responsibility to protect and ensure clean drinking water for its residents by putting this buffer in place. They should not put landowners in a position of balancing potential economic gain against risking their health and safety.  

Regulations.  In a very welcome development, the state is now saying it will conduct a rulemaking process that would formalize its proposed safeguards in a single set of uniform, legally enforceable regulations.  This is critical.  Currently, the agency relies upon an ad hoc mix of 25-year-old regulations, a nearly 20-year-old environmental impact statement, guidance documents, and permit conditions to regulate drilling.  This is a highly technical, and impactful, industrial activity, and the public is entitled to the certainty and transparency that can only come through comprehensive, consistent regulations that are up-to-date with the current technology in use.

Unfortunately, DEC has said that it would begin processing permit applications for new fracking after completion of the environmental review process and before finishing the rulemaking.  This makes no sense whatsoever, and threatens to undermine the very public confidence that a rulemaking could otherwise assure.  Particularly given that DEC says it expects to process very few applications during that time, there is no justification for such an approach.

Waste.  Despite all the problems we have seen caused by toxic wastewaters and solid wastes from Colorado to Pennsylvania, the state is still proposing that contaminant-laden, potentially radioactive drilling and fracturing fluids, mud-drilled cuttings, pit liners, flowback water and produced brine be classified as non-hazardous industrial waste.  Fracking waste does not belong in landfills or standard wastewater treatment plants – it needs special care like all other hazardous waste to prevent contamination after it has been thrown away. Given the danger many of these fluids pose – and the fact that if not for a special regulatory loophole, they would certainly in many cases be classified as hazardous waste subject to DEC’s full regulatory program – this approach is unacceptable.  While DEC proposes a tracking system for solid and liquid wastes generated in connection with fracking, similar to that which is required for medical waste, this system does not go far enough to protect New Yorkers from serious public health threats associated with inadequately regulated hazardous wastes.

Chemical Disclosure. For years, the public has been calling for the gas industry to reveal what chemicals it is using, how much of them and in what combinations, to frack near our water supplies – so far to little avail. Fortunately, in the draft environmental review, the state would effectively require companies to provide this information to DEC both pre- and post-fracking.  The state would also require disclosure of this information to health professionals and employees in the event of an emergency.  For the public, the document would require companies to disclose this same information, unless that information is classified by the company as “confidential business information,” better known as “trade secrets.”  In the case of alleged trade secrets, DEC can require full disclosure only to the agency itself.

This approach goes further than that in other states and is similar to the national FRAC Act (which NRDC strongly supports). It is fundamental to addressing the dearth of data that exists nationally and which the state itself bemoans, by enhancing the state’s ability to investigate future claims of water contamination.  It will also help health professionals better treat people who have been exposed to fracking chemicals.

Legal limitations likely prevent DEC from going one step further and requiring disclosure of this information, regardless of “trade secrets,” to the general public.  For this reason, it is incumbent on the companies to stop hiding behind the “trade secret” excuse.  We’ve heard this same excuse over and over from the industry to keep the public in the dark about what chemicals they’re using near our drinking water supplies (even on their own, voluntary, so-called “disclosure” website). Gas corporations owe it to the general public to disclose every single chemical they use if landowners are ever to have the ability to monitor drinking water conditions on their own properties.

Reconsideration of Buffers. Another troubling issue is that some of the state’s “prohibited” buffer areas (e.g., those around primary aquifers (those which serve as public drinking water supplies), principal aquifers (those which could serve as public drinking water supplies) and tributaries thereto) include “reconsideration” provisions that would allow the state to consider permitting drilling in buffer zones within 2-3 years of measuring “actual experience and impacts associated with permit issuance.”  This wording is vague, and sounds dangerously like an open door to cut back on buffer areas that are, in theory, based on the best available scientific evidence.  Absent any indication of how the agency intends to assess the “actual experience” in permitting drilling elsewhere, these reconsideration provisions should be withdrawn.

State-Owned Land.  DEC is proposing to prohibit well pads for fracking on “certain state-owned land,” which is a welcome development.  However, as far as we can tell, this prohibition applies only to surface disturbances (as opposed to fracking beneath such lands).  Fracking should be prohibited under any of these lands.

Cumulative Impacts.  The state appears to analyze cumulative impacts only with regards to water withdrawals, certain air pollutants and habitat fragmentation.  While this is an improvement over the agency’s nearly complete disregard for cumulative impacts analysis in the prior environmental review under the Paterson Administration, further examination appears to be warranted. The impacts of fracking are all interconnected and can transform entire communities – they do not stand alone. The state must evaluate the impacts as a whole.  (We do note that the community impacts chapter is yet to be released.)

Open pits.  According to the latest draft, based on an assertion by industry that it is unlikely to use open pits or impoundments for storage of wastewaters, the state is proposing to require a site specific environmental review prior to permitting any such pits.  While this is an improvement on the last draft’s proposal to allow open impoundments, it doesn’t go far enough.   These pits – whether on individual well pads or in centralized locations – should be outright prohibited.  Industry’s reported assertion makes clear that there are available alternatives, and the risks of leaks, spills, overflows, etc. from these pits are too great.

Public Comment Period.  Finally, as mentioned, DEC has said it will formally issue the complete revised environmental review in approximately late August, at which time it has said it will provide a 60-day formal public comment period.  This is inadequate.  The agency provided 90 days on the last draft, and this one already appears to be more comprehensive.  We believe no less than 120 days is necessary to give the document a full and fair vetting by the public, and an adequate opportunity to weigh in.  It is also crucial that DEC provide for formal public hearings across the potentially affected parts of the state.  Last time around, we had to fight to get a hearing in NYC, even though its 8 million residents clearly stand to be impacted if its water supply is not adequately protected.  We shouldn’t have to go through that again. The risks here are great, and should not be taken lightly. That means giving the public sufficient time to weigh in, and be heard.

Again, these are just our initial reactions based on our preliminary review, and we will have much more to come as our review proceeds.

Correction: This post previously said DEC was allowing companies to withhold full disclosure from the agency on the basis of a “trade secret” exemption. The text was corrected to reflect that DEC will require companies to provide disclosure of all chemicals used to the agency, both pre- and post-fracking.

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