No Fracking Way

Fracking Regulations Out

by Chip Northrup on November 29, 2012

The DEC’s defense lawyers have finally pushed the fracking regulations out the door. 30 day comment period begins 12/12. Will have responses ready soon.

This is of course, willfully bass-ackwards, since neither the SGEIS nor the health study have been finished. But that is how the DEC does everything – bass ackwards at the behest of the gas lobby -  and as a function of whatever its defense attorneys thinks they can get away with. As Senator Avella politely points out to Governor Cuomo. So now they are sending notice so that they can get a 90 day extension – and issue the proposed new fracking regulations on December 12 – as sort of a Christmas present to frackers. Here is a copy of the notice, with some of the usual boiler-plate rationalizations on what the DEC did to come up with what they are going to try to push out the door, some rationalizations for the changes, etc.  - without stating who authored the proposed revisions.

Might sign the letter asking the DEC to put the cart back behind the horse – issue regulations after the SGEIS and health study are complete.

Shown below is what they are proposing, by major heading. Note that most of this is simply bureaucratic dissembling about the limited changes proposed – without much actual explanation as to why. Note also that they have made some minor changes, which indicated they listened – somewhat to our critique of the previous draft, examples at bottom of post. For instance, the setback of a deep well from a property line (spacing unit) has gone from 330 feet back to 1,500 feet (where it started before Chesapeake told the DEC staff they wanted 330 feet) and the setback from a house has gone from 100 feet, where it’s been since 1972, to 500 feet, which is what it is in Fort Worth – where there are no shallow water wells to poison. 500 feet is still close enough to gas most shallow water wells. 
Will slog through it and post responses here on the wiki site prior to the start of comment period.
  1. Revised Rural Area Flexibility Analysis - information about compliance with the rules; costs; minimizing adverse impacts; and rural area participation.

  2. Revised Job Impact Statement - information about the nature of any impact and self-employment opportunities.
  3. Revised Regulatory Impact Statement Summary - brief description of the statutory authority and legislative objectives; needs and benefits; cost to industry; state costs; local government mandates; paperwork, duplication; alternatives; federal standards; and compliance schedule.
  4. Revised Regulatory Impact Statement - detailed explanation of the statutory authority; legislative objectives; needs and benefits; cost to industry; state costs; local government mandates; paperwork, duplication; alternative approaches; federal standards; and compliance schedule.
  5. Revised Regulatory Flexibility Analysis for Small Business and Local Governments - information about the effects of the rules; compliance requirements; professional services; compliance costs; economic and technological feasibility; minimizing adverse impact; and small business and local government participation.
  6. Revised Summary of Express Terms - the proposed rules include revisions and additions to oil and gas regulations; regulations on the management of state land; and regulations pertaining to State Pollutant Discharge Elimination System (SPDES) permitting.
  7. Revised Proposed Express Terms 6 NYCRR Parts 52 and 190 - *** Use of State Lands administered by the Division of Fish, Wildlife and Marine Resources and Use of State Lands. ***
  8. Revised Proposed Express Terms 6 NYCRR Parts 550 through 556 and 560 - *** information on changes pertaining to mineral resources.  ***
  9. Revised Proposed Express Terms 6 NYCRR Parts 750.1 and 750.3 - ***changes regarding obtaining a SPDES permit and adding a new sub-part for high-volume hydro fracturing. ***
  10. Assessment of Public Comments Summary 6 NYCRR Parts 52, 190, 550-556, 560, and 750 - Summary of comments received during the comment period.
  11. Assessment of Public Comments 6 NYCRR Parts 52, 190, 550-556, 560, and 750 - Comments received from September 28, 2011 through January 11, 2012.
 Will update our comments on the proposed rules and regulations on this wiki site:

We are also going to publish comments from the Sierra Club, etc. as they become available. Do not wait to get started on this. Would start reviewing what they’ve put out and send me your comments.

Of all the weak links in New York’s fracking regulatory regime, the proposed regulations themselves are by the far the weakest. Key sections of the regulations have not been updated since 1972. The setback of a gas well from a house is still 100 feet. New sections of the regulations, including new loopholes to allow horizontal wells to go under lakes and state forests were added last year – along with a loosening of gas well setback standards courtesy of Chesapeake’s lobbyist - who got the setback of a gas well from a property line reduced from up to 1,500 feet to  330 feet for any shale gas well. Here’s how that wording change, as dictated to the DEC staff, appeared in the Sept. 2011 regulations:

553 Well Spacing

“(6) For shale gas pools at any depth, for a horizontal well outside any existing spacing unit for the same formation and with a written commitment from the well operator to drill infill wells pursuant to subdivision 4 of section 23-0503 of this title, with all horizontal infill wells in the unit to be drilled from a common well pad within three years of the date the first well in the unit commences drilling, notwithstanding the ten percent tolerance specified in this subparagraph, up to 640 acres with the initial horizontal wellbore or wellbores within the target formation approximately centered in the spacing unit and no wellbore in the target formation less than 330 feet from any unit boundary;”

Where was the science in 330 feet ? That’s more than close enough to gas you while the well is being drilled, and poison your water well after it is completed. The DEC’s standards are the worst in the United States  because the DEC is one of the few state environmental agencies that is also in the business of issuing well permits – and it puts its minerals management department in charge of environmental oversight - effectively subordinating its environmental stewardship to the issuance of drilling permits. This abrogation of responsibility is memorialized right in the Sept. 2011 draft regulations:

“Section 550.2 is revised to read:

(a) To carry out the functions outlined in section 550.1 of this Part, the Department of Environmental Conservation has created a [Bureau] Division of Mineral Resources.

(b) The [Bureau] Division of Mineral Resources is headed by a [chief] director who is responsible for the administration and enforcement of all rules, regulations, orders and amendments thereof of the Department of Environmental Conservation relating to the exploration and drilling for, and production, transportation, purchase, processing and storage of oil and gas and the prevention of any pollution resulting therefrom.”

Tasking Mineral Resources with environmental oversight completely compromises the DEC’s effectiveness as an environmental protection agency. For all intents and purposes, New York will not have any autonomous environmental regulatory oversight over gas drilling.

This is the heart of the weak link: A set of environmental rules dictated by the gas lobby to the DEC Minerals Resources staff  - then having that same staff at the Minerals Resource’s division enforce those rules.  Not a good way to protect the environment, roads, water supplies or people.


{ 1 comment… read it below or add one }

Beth November 29, 2012 at 3:44 pm

Let the litigation begin?


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