Honorable Andrew M. Cuomo
Governor of New York State
Albany, NY 12224
Dear Governor Cuomo:
Your Department of Environmental Conservation (DEC) recently announced that it would likely restart the process of adopting high-volume hydraulic fracturing regulations because an 11/29/12 deadline would be missed as New York Health Commissioner Nirav R. Shah reviews health data compiled for the Marcellus Shale Revised Draft Supplemental Generic Environmental Impact Statement (SGEIS). Restarting the rulemaking proceeding would require a new public comment period for DEC's proposed regulations.
I write to request that DEC similarly restart its entire SGEIS proceeding in order to permit public comment on expanding the scope of its fundamentally inadequate gas and oil extraction permit guideline proposal.
Proposed Health Review Inadequate to Fulfill SEQRA Requirements
1) Simply asking Health Commissioner Shah to review health data gathered for DEC's Revised Draft SGEIS would not constitute a meaningful public health impact assessment. An unprecedented study would be required to resolve the shortcomings of DEC's existing health data compilation, notably the agency's failure to assess:
a) the full spectrum of toxic air, land and water contaminants resulting from conventional natural gas extraction as well as shale gas fracturing,
b) the environmental fate and transport mechanisms involving those pollutants and
c) the long-term cumulative health impacts resulting from trace-level exposures to natural gas pollutants, including health impacts that involve long latency periods.
New Gas and Oil Extraction GEIS Needed
2) This matter should be resolved by initiating an entirely new GEIS proceeding. In 2008, DEC decided to adopt a limited-scope Supplemental GEIS instead of updating its 1992 GEIS. That key decision was based on its assertion that: "As a result of New York's rigorous regulatory process, the types of problems reported to have occurred in states without such strong environmental laws and rigorous regulations haven't happened here."
Division of Mineral Resources Own Annual Reports Document Decades of Inadequate Regulatory Enforcement
DEC's claim has now been documented to be factually incorrect as well as deliberately misleading. A review of the Division of Mineral Resources own Annual Reports and other government documents reveals that DEC:
a) failed to protect drinking water wells from hundreds of incidents involving massive toxic contamination,
b) permitted billions of gallons of untreated gas and oil drilling wastewaters to be dumped directly onto land or into streams and
c) has yet to plug more than 5,000 abandoned gas/oil production and other wells that can cause irreparable contamination hazards. See: http://toxicstargeting.com/sites/default/files/DMR_redline_docs_120824.pdf
Draft and Revised Draft SGEIS Both Deemed Inadequate by EPA, Scientists and Physicians
3) DEC's SGEIS has received intense criticism, notably from the U. S. Environmental Protection Agency, scientists, physicians, academic researchers and elected officials. There can be no dispute that both the Draft and Revised Draft SGEIS proposals are fundamentally inadequate to safeguard public health and the environment.
On December 30, 2009, Region 2 of the U. S. Environmental Protection Agency wrote DEC to underscore the inadequacy of its public health protection effort and the need to adopt a new GEIS:
"In addition, a greater emphasis needs to be placed on the potential health impacts that may be associated with gas drilling and hydrofracturing. EPA suggests that the New York State Department of Health (DOH) join NYSDEC as a co-lead on the SEQRA document. Not only does DOH have expertise to offer on health impacts, but it was delegated primary enforcement responsibility (primacy) of the Safe Drinking Water Act by EPA. This is of direct interest to EPA as we are responsible for overseeing DOH's implementation and enforcement of the drinking water program."
EPA also wrote:
"While EPA understands that this d [draft, not in the original] SGEIS is the SEQRA documentation to specifically evaluate hydraulic fracturing, it supplements a 1992 SEQRA document. EPA is concerned that over the past 17 years since the 1992 GElS was written, the "existing" environment and conditions in New York State have changed sufficiently that using the information from that report as a baseline for the dSGEIS will not take into account the cumulative impacts from habitat fragmentation, population increase, and climate change that may have occurred during that time."
EPA's documented concerns were essentially ignored by DEC. EPA submitted even more technical comments about the inadequacy of the 2012 Revised Draft SGEIS than the 2009 Draft SGEIS.
Request to Withdraw Revised Draft SGEIS
For all these reasons, the Revised Draft SGEIS must be withdrawn along with DEC's proposed shale gas fracturing regulations. DEC should accept public comment about adopting a new GEIS as well as regulatory rulemaking capable of protecting public health and the environment from existing gas and oil extraction hazards as well as proposed shale gas fracturing.
You did not respond favorably to a 2011 coalition letter with more than 5,000 signatories which requested that you require DEC to accept public comment about expanding the scope of the SGEIS proceeding after you signed a "continuation" of Executive Order No. 41. If that request had been fulfilled, the public confusion and shortcomings of the Revised Draft SGEIS could have been avoided.
You also did not respond favorably to a coalition letter with more than 22,000 signatories which requests that you withdraw the Revised Draft SGEIS in order to resolve at least 17 major shortcomings: http://www.toxicstargeting.com/MarcellusShale/cuomo/coalition_letter/2011
In conclusion, you have spoken eloquently about your commitment to restoring public faith in New York State government. If you are sincere about meeting that goal, you must withdraw the Revised Draft SGEIS in order to resolve all of the concerns that have been respectfully brought to your attention. This must be done prior to permitting shale gas fracturing in New York, even on a limited basis.
Please note that the information I have brought to your attention documents that public health and environmental safeguards based on "good science" are meaningless if DEC fails to enforce those regulatory requirements rigorously. That has been the agency's fundamental problem since the GEIS was adopted 20 years ago.
Until that problem is fully resolved, it would be irresponsible of you to permit shale gas fracturing in New York State.
Thank you for your consideration. I look forward to your timely reply.
cc: Honorable Members of the Hydraulic Fracturing Advisory Panel Signatories to the Withdraw the Revised Draft SGEIS coalition letter