January 5, 2011
Honorable Andrew M. Cuomo
Governor, State of New York
Albany, NY 12224
Dear Governor Cuomo:
We, the undersigned, strongly support safeguarding the environment, public health and natural resources of the Catskills, Finger Lakes and Southern Tier regions that overlay New York’s Marcellus Shale formation, potentially the largest natural gas reservoir in America. That is why we write to thank you for your “continuation” of Executive Order No. 41: Requiring Further Environmental Review of High-Volume Hydraulic Fracturing Combined With Horizontal Drilling.
That order requires your Department of Environmental Conservation (DEC) to:
“complete its review of the public comments, make such revisions to the Draft SGEIS that are necessary to analyze comprehensively the environmental impacts associated with high-volume hydraulic fracturing combined with horizontal drilling, ensure that such impacts are appropriately avoided or mitigated consistent with the State Environmental Quality Review Act (SEQRA), other provisions of the Environmental Conservation Law and other laws, and ensures (stet) that adequate regulatory measures are identified to protect public health and the environment;”
More than 10,000 citizens, elected officials, business owners, environmental groups and students are signatories to a letter that requested Governor Paterson to withdraw the draft Supplemental Generic Environmental Impact Statement (draft SGEIS) due to its fundamental inadequacies and send it back to the drawing board. We are very grateful that Executive Order No. 41 requires DEC to address those shortcomings “comprehensively” before lifting New York’s de facto Marcellus Shale horizontal hydrofracking moratorium.
A 12/13/10 article in The New York Times underscores the flaws of the draft SGEIS proceeding. Then Acting DEC Commissioner, Peter Iwanowicz, reportedly said: “many of the comments have criticized the proposed standards for failing to adequately address issues like the cumulative impact of multiple drill sites, disposal of wastewater from the drilling and the protection of drinking water.”
DEC deliberately excluded a broad range of critical issues from the scope of the SGEIS proceeding by ignoring extensive testimony at its scoping hearings. Moreover, a great deal of new information has become available since the scoping process ended. Against that background and in order to fulfill the goals of Executive Order No. 41, we respectfully request that you require DEC to:
A) Convene a Citizens Advisory Committee as well as a separate Technical Advisory Committee to guide the agency in its decision-making. At a minimum, these committees should be comprised of representatives from: 1) local, state and federal government agencies involved with regulating Marcellus Shale gas matters; 2) local governments, the State Legislature and Congress; 3) the natural gas industry; 4) property owners who leased their mineral rights; 5) civic, environmental, public interest and good government groups; 6) concerned citizens; and 7) academic researchers.
B) Provide public notice and accept comments for no less than 30 days regarding how the agency can best fulfill the requirements of Executive Order No. 41; respond in writing to all comments before beginning the process of revising the draft SGEIS; and afford the public regular, on-going opportunities for participation and comment.
C) Adopt the following proposed policies:
- Discharges of natural gas flowback, drilling and production wastewaters must meet New York State’s GA (groundwater that supplies potable drinking water) effluent limitations when discharged into ground and surface waters or public and private treatment plants or re-used for hydraulic fracturing or injected into underground disposal wells. Natural gas wastewaters have been documented to contain high concentrations of Total Dissolved Solids (TDS), toxic chemicals and Technology Enhanced Naturally Occurring Radioactive Materials (TENORM). These persistent pollutants can contaminate groundwaters, “pass through” “secondary” wastewater treatment systems, concentrate in residual sludges and cause worker hazards.
- Marcellus Shale horizontal hydrofracturing must be regulated by Individual EIS proceedings instead of a Generic EIS. DEC proposed to require individual EIS reviews for the New York City and Syracuse watersheds, but not for the rest of the Marcellus Shale formation. Moreover, according to the draft SGEIS, “Flowback water recoveries reported from horizontal Marcellus wells in the northern tier of Pennsylvania range between 9 and 35 percent of the fracturing fluid pumped (emphasis added)” (Page 5-97.) Those meager recovery rates support the conclusion that horizontal hydrofracturing constitutes deep well injection of fluids that could threaten drinking water supply sources. DEC requires State Pollutant Discharge Elimination System (SPDES) permits for deep well injection of natural gas fluid. Those permits can only be granted on the basis of site-specific, individual EIS reviews.
- An investigation must be undertaken to determine whether the 1992 GEIS is sufficient to safeguard public health and if “No known instances of groundwater contamination have occurred from previous horizontal drilling or hydraulic fracturing projects in New York State.” (See: DEC Marcellus Shale homepage.)
DEC concluded in its Final SGEIS Scope: “In the absence of a pattern of incidents that indicates a regulatory weakness or gap, the occurrence of isolated accidents or violations do not of themselves constitute reason to re-open the GEIS.” (See 8.3.2)
DEC’s assertion is directly contradicted by hundreds of spills reported to the agency as well as additional information compiled by Chautauqua, Cattaraugus and Allegany County Health Departments. Those data were not provided to DEC during its scoping hearings.
DEC’s investigation must include a review of the following information:
- On November 9, 2009, detailed DEC spill information was released for public review that identified more than 270 incidents involving drill rig fires, explosions, homes evacuated due to gas drilling hazards, polluted water supply wells, gas drilling wastewater spills and various other oil/gas releases that had not been cleaned up. Many of those problems have exceeded remediation requirements for decades.
- On April 5, 2010, extensive information was released documenting widespread natural gas impacts reported by the aforementioned health departments pursuant to a Memorandum of Understanding with DEC. Dozens of these problems were reported prior to the adoption of the GEIS in 1992 and have not been cleaned up.
- Documents and a video also were released regarding a gas development firm that reportedly impacted a home in Andover, NY and offered to compensate the homeowner.
See: http://www.toxicstargeting.com/MarcellusShale/documents/allegany_us_ener... and http://www.toxicstargeting.com/MarcellusShale/videos/andover_independenc...
- DEC’s GEIS must be updated on a comprehensive basis. The U. S. Environmental Protection Agency wrote to DEC that its 1992 GEIS is out-of-date in so many respects that it should not serve as the basis for developing new horizontal hydrofracturing regulations. DEC must revise the GEIS to address all of the regulatory shortcomings identified by EPA, including: potential impacts to public health, water supply, water quality, wastewater treatment operations, local and regional air quality, management of naturally occurring radioactive materials and cumulative environmental impacts.
In conclusion, Executive Order No. 41 is an historic effort to require DEC to make sure that the environmental impacts associated with Marcellus Shale horizontal hydrofracturing are “appropriately avoided or mitigated” prior to the permitting of that activity. The actions we respectfully request you to undertake would help achieve that goal and serve as a model of effective government regulation for the nation as a whole.
Thank you very much for your consideration. Best of luck with your administration.
Very truly yours,