CGNA submitted today the following comments to NYS DEC today on hydrofracking, the shale gass extraction method that poses an unreasonable threat to our water supply:
We the members of the Carroll Gardens Neighborhood Association are writing to express our severe concerns about the potential for hydraulic fracturing, known as "fracking" in New York state.
Clean, plentiful groundwater and surface watersheds are a key asset to New York and must be vigilantly protected. Fracking poses grave risks to both ground water and surface waters through the fracturing process itself and the disposal of waste fluid used in the process.
The fluid used in the fracturing process contains scores of contaminants including known carcinogens. In the absence of empirical evidence, the imperative to protect the safety of groundwater and our surface waters should be enough to outweigh the potential benefits of fracking. But there is abundant empirical evidence in the geologically similar states of Pennsylvania and Ohio to show that fracking poses real threats to both surface and groundwater. Wells and rivers have been fouled with contaminants and released gas where fracking has been allowed.
As residents of Brooklyn, we rely on the pure clean drinking water from our upstate watershed just as the other more than eight million resients of New York City do. Many more outside our city limits also depend on these waters for their lives and livelihoods.
At this time, the practice of fracking poses unacceptable risks to the drinking water and environment of New York, and we urge you not to approve the practice.
As to specific elements of the rules under consideration, and notwithstanding our general call for rejection of fracturing, the Board shares the concerns expressed by Riverkeeper, incorporated below.
Regards,
Gary Reilly, on behalf of
Carroll Gardens Neighborhood Association
Riverkeeper Specific Points:
1. Proposed Setbacks from Drinking Water Supplies and Buildings Remain Inadequate. DEC has not justified its arbitrary, insufficient setbacks, which fail to provide sufficient buffers to protect communities and their drinking water sources. Here is a table of minimum setbacks that Riverkeeper has suggested compared to DEC's current proposed regulations:
These setbacks should apply to all gas producing wells in the state and DEC should not allow variances from these setbacks, especially since it has provided no scientific basis for determining that its proposed setback distances provide adequate protection.
2. Protections for the New York City Drinking Water Supply Watershed and Infrastructure Are Insufficient. Given the significance of the risk involved and the value of the NYC Watershed, DEC should revise its regulations to ban all HVHF operations underneath Unfiltered Drinking Water Supply Watersheds. To ensure adequate protection of the water supply, DEC should also ban natural gas production within at least seven (7) miles of any unfiltered drinking water supply infrastructure, as originally recommended by the New York City Department of Environmental Protection (DEP). The proposed regulations contain no protection for watershed tunnels that carry Catskill water to NYC. Allowing unsafe HVHF to occur near vulnerable critical water supply watersheds and infrastructure is a completely unacceptable risk. DEP has stated that "it would take more than a decade for the City to design and build a filtration treatment facility that could protect against the contaminants of concern (if that were even feasible); during these many years, the public health, safety, and welfare of millions of New Yorkers would be at risk." In addition, failure to prohibit HVHF in these areas could lead the U.S. Environmental Protection Agency to retract its Filtration Avoidance Determination, which would force New York to build a filtration system at great cost to NYC ratepayers.
3. The Proposed Regulations Fail to Adequately Protect Underground Drinking Water Supplies and Do Not Comply with Federal Standards. DEC proposes to allow fracturing in shale only 2,000 feet below the ground surface and 1,000 feet below the base of known drinking water supplies. These separation distance requirements are unsupported by scientific data. DEC has not disputed or addressed recent findings that allowing HVHF activity only 1,000 feet below drinking water supplies would expose these supplies to contamination from fracking fluid moving upwards toward the surface. Moreoever, DEC's definition of fresh water supply, which its regulations are intended to protect, is far less protective than the federal standard for underground sources of drinking water. DEC limits fresh water supply to groundwater having a concentration of 1,000 parts per million (ppm) of total dissolved solids (TDS), while the federal standard covers all groundwater up to 10,000 ppm TDS. DEC's proposed standard exposes a greater number of drinking water sources to possible contamination. DEC should instead adopt the federal standards for protection of underground fresh water supplies and dramatically increase the buffer depth between fracturing operations and groundwater.
4. There Is Still No Plan for Wastewater Disposal. New York does not have a plan to deal with billions of gallons of wastewater, and proposes to rely on disposal methods to be developed by the industry in the future. The proposed regulations require a well operator to have an approvable fluid disposal plan but provide no criteria or standards that would govern such a plan. In Pennsylvania, fracking wastewater has at times been sent to wastewater treatment plants unequipped to handle the waste, resulting in discharges to rivers of untreated wastes upstream from drinking water intakes. Now, most Pennsylvania wastewater is trucked to Ohio, where it is injected deep underground. The proposed regulations include provisions that would allow treatment at wastewater treatment plants or deep well injection of HVHF wastewater in New York. Current regulations could also potentially allow spreading of toxic, radioactive natural gas waste on roads as a de-icing agent. DEC must promulgate regulations that set forth specific requirements concerning a safe plan for waste disposal, and withdraw regulations that would permit wastewater treatment underground injection of waste in the absence of any review of the environmental impacts of such a practice, before moving forward with fracking in New York.
5. Open Waste Storage Pits Should Be Prohibited. Open waste storage pits are a major source of air pollution, particularly hazardous air pollutants, and present an increased risk of spills and resulting contamination of surface and groundwaters, as well as health impacts associated with both the air and water pollution that result. DEC proposes to allow centralized waste storage pits after a site-specific environmental review. However, permitting pits on a case-by-case basis forgoes uniformity and fails to provide the industry with consistent standards. DEC has not studied the cumulative effects of numerous pits throughout the state, and on-site waste storage pits continue to be allowed at all well sites using under the 300,000 gallon per day high volume fracking fluid limit. DEC should prohibit all open-pit wastewater impoundments in New York State. At a minimum, it must study the cumulative environmental and human health impacts of such open pits before finalizing HVHF regulations.
6. The Regulations Should Not Allow Use of Toxic Hydraulic Fracture Treatment Additives. Proposed regulations merely provide that HVHF operators must exhibit that the additives they propose to use "pose at least as low a potential risk to water resources and the environment as all known available alternatives" or that available alternative products are not effective or economically feasible in achieving results. Known carcinogens, such as benzene, toluene, ethylbenzene, xylenes, arsenic, and formaldehyde have been used as fracture treatment additives. DEC should develop a list of recommended/approved fracture treatment additives that have been scientifically and technically reviewed by DEC and DOH and are known to pose little or no risk to human health or the environment and a list of prohibited fracture treatment additives based on the known list of chemicals currently used in hydraulic fracturing. These lists should be placed in regulation, along with a process for evaluating newly proposed chemicals to determine if they should be allowed or prohibited.
7. Emergency Response Planning Requirements Are Inadequate. The Proposed Regulations require well operators to submit an Emergency Response Plan (ERP) containing details to be specified by DEC, but does not require the ERP to be approved by the department for adequacy prior to drilling. DEC should strengthen ERP regulations to explicitly require at minimum: (1) a well blowout response plan, a contractor, a contract retainer with an emergency well control expert, and prearranged access to a relief well rig; (2) an ERP review, approval, and audit process to ensure that quality plans are developed, including adequately trained and qualified personnel, and the availability of adequate equipment; (3) if local emergency response resources are relied on in the ERP, that operators ensure they are trained, qualified, and equipped to respond to an industrial accident, and if not should be required to provide its own industrial response equipment and personnel; (4) that DEC conduct audits of drills, exercises, equipment inspections, and personnel training and (5) that the plan be submitted to DEC with the well application for DEC review and approval.
8. The Regulations Should Not Authorize Drilling In Any Shale Formation Other than the Marcellus. DEC continues to propose regulations for HVHF wells that may be drilled into shale and low-permeability formations other than the Marcellus Shale without completing a thorough of the potential adverse impacts of their development and required mitigating measures. Without such an environmental review, which is not provided in the unfinished SGEIS, DEC cannot provide any technical, scientific or legal justification for applying the proposed regulations to any shale or low-permeability reservoir in New York other than the Marcellus, and such regulations should not permit natural gas production from those sources.
9. The Proposed Regulations Create a Two-Tiered System of Regulation, Leaving the Regulation of Low-Volume Hydraulic Fracturing (LVHF) Activities Subject to Regulations Last Revised in the 1980s. Since 1992, numerous best technology and best management practice improvements have been developed in the oil and gas industry. DEC proposes to allow antiquated technology and practices for all oil and gas development in New York other than HVHF operations (or operations utilizing over 300,000 gallons of water). These inadequately regulated low-volume wells (<300,000 gallons) will proliferate in areas where high-volume hydraulic fracturing is banned. Without requiring the best technology and best management practice improvements that have developed since 1992, the Revised Proposed Regulations cannot possibly adequately mitigate environmental impacts of oil and gas development in New York. DEC should require new best technology and best management practices for all gas wells in New York, not just HVHF wells.
10. Prior to Issuing Regulations, DEC Must Seek The Legislative Amendments Necessary to Allow It To Adequately Regulate HVHF. In its assessment of public comments, DEC identified a number of legislative amendments that it asserts are needed to provide the agency with the legal authority to properly regulate HVHF shale gas developments and improve regulation of existing and future oil and gas wells. For example, DEC states that current law precludes the agency from requiring adequate financial assurance for all liabilities potentially arising from oil and gas development or from assessing meaningful penalties for violations of its regulations. To ensure that DEC does not codify regulations that are known to be flawed because of inadequate regulatory authority, the agency should seek the required legislative action and defer finalization of the regulations until the new amendments are in effect.
2. Protections for the New York City Drinking Water Supply Watershed and Infrastructure Are Insufficient. Given the significance of the risk involved and the value of the NYC Watershed, DEC should revise its regulations to ban all HVHF operations underneath Unfiltered Drinking Water Supply Watersheds. To ensure adequate protection of the water supply, DEC should also ban natural gas production within at least seven (7) miles of any unfiltered drinking water supply infrastructure, as originally recommended by the New York City Department of Environmental Protection (DEP). The proposed regulations contain no protection for watershed tunnels that carry Catskill water to NYC. Allowing unsafe HVHF to occur near vulnerable critical water supply watersheds and infrastructure is a completely unacceptable risk. DEP has stated that "it would take more than a decade for the City to design and build a filtration treatment facility that could protect against the contaminants of concern (if that were even feasible); during these many years, the public health, safety, and welfare of millions of New Yorkers would be at risk." In addition, failure to prohibit HVHF in these areas could lead the U.S. Environmental Protection Agency to retract its Filtration Avoidance Determination, which would force New York to build a filtration system at great cost to NYC ratepayers.
3. The Proposed Regulations Fail to Adequately Protect Underground Drinking Water Supplies and Do Not Comply with Federal Standards. DEC proposes to allow fracturing in shale only 2,000 feet below the ground surface and 1,000 feet below the base of known drinking water supplies. These separation distance requirements are unsupported by scientific data. DEC has not disputed or addressed recent findings that allowing HVHF activity only 1,000 feet below drinking water supplies would expose these supplies to contamination from fracking fluid moving upwards toward the surface. Moreoever, DEC's definition of fresh water supply, which its regulations are intended to protect, is far less protective than the federal standard for underground sources of drinking water. DEC limits fresh water supply to groundwater having a concentration of 1,000 parts per million (ppm) of total dissolved solids (TDS), while the federal standard covers all groundwater up to 10,000 ppm TDS. DEC's proposed standard exposes a greater number of drinking water sources to possible contamination. DEC should instead adopt the federal standards for protection of underground fresh water supplies and dramatically increase the buffer depth between fracturing operations and groundwater.
4. There Is Still No Plan for Wastewater Disposal. New York does not have a plan to deal with billions of gallons of wastewater, and proposes to rely on disposal methods to be developed by the industry in the future. The proposed regulations require a well operator to have an approvable fluid disposal plan but provide no criteria or standards that would govern such a plan. In Pennsylvania, fracking wastewater has at times been sent to wastewater treatment plants unequipped to handle the waste, resulting in discharges to rivers of untreated wastes upstream from drinking water intakes. Now, most Pennsylvania wastewater is trucked to Ohio, where it is injected deep underground. The proposed regulations include provisions that would allow treatment at wastewater treatment plants or deep well injection of HVHF wastewater in New York. Current regulations could also potentially allow spreading of toxic, radioactive natural gas waste on roads as a de-icing agent. DEC must promulgate regulations that set forth specific requirements concerning a safe plan for waste disposal, and withdraw regulations that would permit wastewater treatment underground injection of waste in the absence of any review of the environmental impacts of such a practice, before moving forward with fracking in New York.
5. Open Waste Storage Pits Should Be Prohibited. Open waste storage pits are a major source of air pollution, particularly hazardous air pollutants, and present an increased risk of spills and resulting contamination of surface and groundwaters, as well as health impacts associated with both the air and water pollution that result. DEC proposes to allow centralized waste storage pits after a site-specific environmental review. However, permitting pits on a case-by-case basis forgoes uniformity and fails to provide the industry with consistent standards. DEC has not studied the cumulative effects of numerous pits throughout the state, and on-site waste storage pits continue to be allowed at all well sites using under the 300,000 gallon per day high volume fracking fluid limit. DEC should prohibit all open-pit wastewater impoundments in New York State. At a minimum, it must study the cumulative environmental and human health impacts of such open pits before finalizing HVHF regulations.
6. The Regulations Should Not Allow Use of Toxic Hydraulic Fracture Treatment Additives. Proposed regulations merely provide that HVHF operators must exhibit that the additives they propose to use "pose at least as low a potential risk to water resources and the environment as all known available alternatives" or that available alternative products are not effective or economically feasible in achieving results. Known carcinogens, such as benzene, toluene, ethylbenzene, xylenes, arsenic, and formaldehyde have been used as fracture treatment additives. DEC should develop a list of recommended/approved fracture treatment additives that have been scientifically and technically reviewed by DEC and DOH and are known to pose little or no risk to human health or the environment and a list of prohibited fracture treatment additives based on the known list of chemicals currently used in hydraulic fracturing. These lists should be placed in regulation, along with a process for evaluating newly proposed chemicals to determine if they should be allowed or prohibited.
7. Emergency Response Planning Requirements Are Inadequate. The Proposed Regulations require well operators to submit an Emergency Response Plan (ERP) containing details to be specified by DEC, but does not require the ERP to be approved by the department for adequacy prior to drilling. DEC should strengthen ERP regulations to explicitly require at minimum: (1) a well blowout response plan, a contractor, a contract retainer with an emergency well control expert, and prearranged access to a relief well rig; (2) an ERP review, approval, and audit process to ensure that quality plans are developed, including adequately trained and qualified personnel, and the availability of adequate equipment; (3) if local emergency response resources are relied on in the ERP, that operators ensure they are trained, qualified, and equipped to respond to an industrial accident, and if not should be required to provide its own industrial response equipment and personnel; (4) that DEC conduct audits of drills, exercises, equipment inspections, and personnel training and (5) that the plan be submitted to DEC with the well application for DEC review and approval.
8. The Regulations Should Not Authorize Drilling In Any Shale Formation Other than the Marcellus. DEC continues to propose regulations for HVHF wells that may be drilled into shale and low-permeability formations other than the Marcellus Shale without completing a thorough of the potential adverse impacts of their development and required mitigating measures. Without such an environmental review, which is not provided in the unfinished SGEIS, DEC cannot provide any technical, scientific or legal justification for applying the proposed regulations to any shale or low-permeability reservoir in New York other than the Marcellus, and such regulations should not permit natural gas production from those sources.
9. The Proposed Regulations Create a Two-Tiered System of Regulation, Leaving the Regulation of Low-Volume Hydraulic Fracturing (LVHF) Activities Subject to Regulations Last Revised in the 1980s. Since 1992, numerous best technology and best management practice improvements have been developed in the oil and gas industry. DEC proposes to allow antiquated technology and practices for all oil and gas development in New York other than HVHF operations (or operations utilizing over 300,000 gallons of water). These inadequately regulated low-volume wells (<300,000 gallons) will proliferate in areas where high-volume hydraulic fracturing is banned. Without requiring the best technology and best management practice improvements that have developed since 1992, the Revised Proposed Regulations cannot possibly adequately mitigate environmental impacts of oil and gas development in New York. DEC should require new best technology and best management practices for all gas wells in New York, not just HVHF wells.
10. Prior to Issuing Regulations, DEC Must Seek The Legislative Amendments Necessary to Allow It To Adequately Regulate HVHF. In its assessment of public comments, DEC identified a number of legislative amendments that it asserts are needed to provide the agency with the legal authority to properly regulate HVHF shale gas developments and improve regulation of existing and future oil and gas wells. For example, DEC states that current law precludes the agency from requiring adequate financial assurance for all liabilities potentially arising from oil and gas development or from assessing meaningful penalties for violations of its regulations. To ensure that DEC does not codify regulations that are known to be flawed because of inadequate regulatory authority, the agency should seek the required legislative action and defer finalization of the regulations until the new amendments are in effect.
BOTTOM LINE
The Fracking Regulations Should Not Be Finalized Before DEC Has Published the Final Environmental Impact Statement and DOH Has Published Its Final Review of Health Impacts. Underlying all of the above concerns is DEC's failure to develop hydraulic fracturing regulations through a systematic process designed to best protect the health and environment of New Yorkers. DEC still has not completed its final Supplemental Generic Environmental Impact Statement (SGEIS) on the Oil, Gas and Solution Mining Regulatory Program, nor has the Department of Health finished its review of that document. DEC's decision to proceed with draft HVHF regulations without the benefit of the final SGEIS undermines its legal obligation to undertake informed decision-making based on facts and science. In order to ensure the greatest protection for New York from the harmful effects of fracking, DEC must not move to finalize these or any other proposed regulations until after it has published the final SGEIS, including the recommendations made in the Department of Health's (DOH) review of that document
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