In making a mess of the proposed fracking regulations, the DEC is at least being consistent – they have been suppressing responsible environmental regulations for almost 40 years, as geologist Brian Brock details in his comments on the proposed new regulations – and they have been trying to cover up the evidence for at least 20 years.
As Mr. Brock notes in his comments on the proposed regulations, the DEC went through the motions of updating the original 1972 oil and gas drilling regulations on 1992, but nothing came of it. The Department of Mineral Resources, (DMR) then run by Greg Sovas, simply ignored recommendations to update the regulations, then tried to hide the proposed revisions :
“Current regulations for the Division of Mineral Resources (DMN), Title 6 of New York Code of Rules and Regulations Parts 550 to 559, are woefully inadequate – and have been so for 40 years now. The 1992 guidelines for environmentally-safe drilling, the Generic Environmental Impact Statement (GEIS) on the Oil, Gas and Solution Mining Regulatory Program resulted in not a single change to the regulations. In the GEIS (1992), DEC admitted that such regulations were needed, page 21-5:
The State’s oil, gas, solution mining and underground gas storage regulations have not been updated since 1972. The current regulatory program is in need of modernization through updated regulations.
The DEC drafted revisions in 1992 and sent them out for public review, but did not reduce them to regulations:
“Two years after the GEIS was finalized, this lack of rule making was similarly criticized in the New York State Review: IOGCC/EPA State Review of Oil Gas and Exploration and Production Waste Management Regulatory Programs (1994), page 6:
Finding I.1 “DMN rules require substantial upgrading to reflect current statutory directives, program policies, and state-of-the-art improvements in E&P waste management. Some of the areas requiring improvements are discussed in the GEIS and others will be highlighted in the remainder of this report.
Recommendation I.1 DMN should establish and adhere to a schedule for completing its rule revisions as soon as possible, incorporating the relevant recommendations contain throughout this report into rule making.
Pursuant to this, revisions and additions to the regulations were drafted and then discussed in public workshops held in September of 1997 at Batavia, Orleans, and Jamestown. However no regulations were finalized, and the DEC systematically begin hiding any record of what had been proposed :
“In response to a FOIL request (11-1415), the DEC stated that every copy of the proposed 1997 regulations had been destroyed. Unstated is who was responsible for trying to erase all traces of them. A copy must have survived as late as 2000, when those proposed GEIS regulations were revised by the staff, mostly by deletions. However these revisions were never presented to public, and once again no regulations were finalized. A copy of these proposed revisions does in fact exist and was finally obtained through a FOIL request, cited above, but only on appeal after the initial FOIL request was denied. Before being released, this list of proposed regulations was heavily redacted.”
Mr. Brock cites several cases of what were proposed as revisions in 1992, that were first ignored, then subsequently covered up, as part of a pattern of deception by the DEC:
“Based on the GEIS (1992), the regulations belatedly proposed in 1997 are a major reorganization and rewrite of Parts 550 to 559 and an addition of 560. In contrast, the revisions proposed in December 2012 are comparatively minor. Some of the 2012 proposals have actually gone backwards, deleting entire sections; for instance, the responsibility to protect human health and the environment has been dropped:
Responsibility to protect human health and the environment.
From the IOGCC/EPA (1994) Review, page 6:
Finding I.2 One of the principal stated missions of the DEC is protection of human health and the environment.
Recommendation I.2 DMN should revise its rules to explicitly incorporate protection of human health and the environment, and craft a mission consistent with this goal and objective.
Pursuant to this, the 1992 GEIS proposed regulations included these revisions of Goals and Objectives, page 2. Among the 2000 edits, the DMN under Sovas deleted the explicit responsibility for protecting people and the environment, to try to cover up the fact that it had ever been proposed.
3. to protect the public from hazards to public health, safety, and welfare that may result from regulated activities;[REDACTED]
4. to protect the environment and prevent pollution of lands, soil, air, surface waters, groundwater, plant and animal life and other natural resources on and off site of the regulated activity;[REDACTED]
These proposed regulations were not only not adopted, they were locked away and the DEC denied that they even had a copy. When they were finally produced, what was deleted is clearly visible because the DEC just put a line through it. Nothing similar has been included in the proposed HVHF regulations – courtesy of DMR head Brad Field. In fact, the hastily proposed regulations have even dropped “regulate” oil and gas activities, and substituted “promote” oil and gas drilling. This lax regulatory attitude is reflected in the agency’s rather spotty enforcement of regulations on the vertical wells in the state, and in the number of orphaned wells that the DEC does nothing about.
Despite rhetoric from the DEC to the contrary, the proposed drilling regulations represent stasis from the original 1972 rules, and are a regulatory retreat from what was proposed in 1992 – all of which will come out in the open and be explained to the press and public when the DEC gets sued – after decades of corruption within the DMN. Or one drilling permit application at a time – if the DEC is not reformed.