Happy Thanksgiving/Clearing up Confusion about the DOH Health Impact Analysis Review

Greetings,

Isn't it heartening to celebrate yet another Thanksgiving without shale gas fracking in New York State. I am enthralled. Thank you for all your assistance.

It now appears that the shale gas fracking moratorium will continue for at least a little while longer as Department of Health (DOH) Commissioner Shah and three outside experts conduct a "review" of the public health impact analysis in DEC's Revised Draft Supplemental Generic Environmental Impact Statement (SGEIS).

While any additional delay is welcome, the proposed review will not likely resolve the fundamental inadequacies of the Revised Draft SGEIS. As a result, the delay could be short-lived and could well pave the way for adoption of a Final SGEIS that permits shale gas fracking to begin in New York.

Nevertheless, DEC declared that no Final SGEIS would be adopted until DOH's review is completed. That is why the reviewers must somehow be persuaded to address the numerous shortcomings documented in the Withdraw the Revised Draft SGEIS coalition letter. See: http://www.toxicstargeting.com/MarcellusShale/cuomo/coalition_letter/2011

Against that background, I write to clear up widespread misunderstandings about what is going on. I also will outline how best to take advantage of unfolding events.

No rest for the weary, eh? Enjoy your turkey break and get ready for more imminent action. The chips might finally be down.

Governor Cuomo Announces Shale Gas Regulatory Rulemaking Deadline Will be Missed

Governor Cuomo announced earlier this week that a 11/29/12 deadline for adopting proposed shale gas fracking regulations would be missed as the DOH health impact analysis review is conducted. As a result, that regulatory rulemaking proceeding would likely be restarted, possibly with an additional public comment period. No official details have been announced.

DEC's Shale Gas Regulatory Rulemaking and SGEIS Permit Guideline Proceedings Are Separate and Distinct

It is critical to understand that there are two separate and distinct DEC shale gas proceedings now underway.

First and foremost, the SGEIS that has been discussed ad nauseum is a permit guideline proceeding that began in 2008. There is no deadline for its completion. Until a Final SGEIS is adopted, New York's moratorium on shale gas fracking continues. Citizen concerns have focused on the SGEIS proceeding. More than 80,000 comments have been received about it.

On a parallel, but separate, track there is a shale gas regulatory rulemaking proceeding. It has a one-year deadline for completion that reportedly will be missed.

Restarting the regulatory rulemaking proceeding does not require the SGEIS to be restarted.

Requiring additional public comment for the rulemaking proposal does not require additional public comment for the SGEIS proceeding.

The most important thing to remember is that DEC cannot issue shale gas fracking permits until a Final SGEIS is adopted. Those permits can be granted, however, even if the rulemaking proceeding is not complete.

Why is a Health Impact Analysis Review Underway?

Various groups, physicians and individuals earlier supported an "independent health impact assessment" of shale gas fracking to be undertaken by an unbiased non-governmental entity, such as an academic institution. The requested assessment was envisioned to be a rigorous, comprehensive study of all the public health hazards posed by shale gas fracking.

I believed that proposal was ill-considered for reasons that now must be all too apparent.

DEC repeatedly rejected the independent health assessment request, notably last September during a meeting between DEC and DOH and selected statewide and national enviros.

Instead, DEC and DOH declared that Health Commissioner Shah would review the "health impact analysis" presented in the Revised Draft SGEIS. His effort would be aided by "qualified outside experts" in the field.

There is huge confusion about this key fact, so please allow me to underscore what it means. No comprehensive public health impact assessment will be conducted by DOH. DOH and three outside experts will simply review the portions of the Revised Draft SGEIS related to DEC's public health impact analysis.

See: http://www.toxicstargeting.com/news/fracking-review-wrap-%E2%80%9Cmid-fe...

DOH's Health Impact Analysis Review is Not Likely to be Fruitful

DEC's Revised Draft SGEIS is riddled with problems. The U. S. Environmental Protection Agency has repeatedly decried its inadequacies, especially its failure to protect public health.

Since these shortcomings are not addressed in the Revised Draft SGEIS, the health impact analysis review is not likely to be fruitful.

DEC steadfastly asserts 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 (emphasis added)."

DEC is essentially arguing that its programs prevent the public from being exposed to gas or oil extraction pollutants. As a result, there is no risk of public health hazards. As a result, there is no need to conduct a comprehensive health impact assessment or adopt any more stringent safeguards than the Revised Draft SGEIS provides.

DEC continues to assert its factually incorrect and misleading claims despite extensive documentation of thousands of gas and oil pollution problems that have been brought to light since the SGEIS began in 2008. DEC is unlikely to change course unless its assertions are totally discredited.

Much Confusion About DOH's Health Impact Analysis Review

Some enviros evidently misconstrued what was said in the September meeting with DEC Commissioner Martens and DOH Commissioner Shah. A 9/21/12 AP article about the meeting referenced one attorney who attended the meeting: "She said they were told that DEC had done a health impact review since the comment period ended on its environmental review and regulations." The attorney reportedly also noted: "We have not seen that, but I understand this to mean this is something that will be vetted by the department of health and independent experts..." Another activist reportedly wanted to know "who conducted DEC's health study..."

See: http://www.toxicstargeting.com/news/ny-dec-head-no-outside-study-frackin...

No evidence has been publicly released that DEC conducted its own health impact study after the comment period ended for the Revised Draft SGEIS and its proposed regulations. DEC stated plainly that the DOH review would be limited to its existing Revised Draft SGEIS. See: http://www.dec.ny.gov/press/85071.html

BTW, some activists claimed that the paucity of the word "health" in the Revised Draft SGEIS is ample evidence of its inadequate attention to that concern. Please note that pursuant to the New York State Environmental Quality Review Act:

"Environment means the physical conditions that will be affected by a proposed action, including land, air, water, minerals, flora, fauna, noise, resources of agricultural, archeological, historic or aesthetic significance, existing patterns of population concentration, distribution or growth, existing community or neighborhood character, and human health (emphasis added).

Proposed Plan of Action

New York's shale gas fracking moratorium will continue in the immediate future, but it could end once the DOH health impact analysis review is done. DEC must be prevented from adopting a Final SGEIS until the 17 critical concerns documented in the Withdraw the Revised Draft SGEIS coalition letter have been resolved. Many of those issues involve public health hazards.

Against that background, our immediate goals are clear:

1) DOH Commissioner Shah and the three outside experts must be made fully aware that New York's gas and oil regulatory efforts are documented to be woefully inadequate based on DEC's own data as well as local health department records in the areas of the Southern Tier where gas and oil extraction has principally been conducted.

2) The reviewers must be persuaded that the Revised Draft SGEIS cannot be adopted because it fails to document:

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;

c) the long-term cumulative health impacts resulting from trace-level exposures to natural gas extraction pollutants in air, surface and ground water, drinking water and soil, including health impacts involving long latency periods; and

d) how New Yorkers can be protected from all those gas extraction hazards.

3) If DEC's shale gas regulatory rulemaking proceeding is restarted and a new public comment period is required, the SGEIS proceeding should similarly be restarted with a new comment period.

Requiring additional public comment on the SGEIS would be extremely important because all the regulatory shortcomings documented since 2008 could be added to the scope of the proceeding.

See my letter to Governor Cuomo regarding this request: http://www.toxicstargeting.com/MarcellusShale/letters/2012/10/24/restart...

Conclusion

With each passing day, there are more articles about how fracking can make America energy-independent while reviving our economy. Maintaining New York's shale gas fracking moratorium in light of those developments will be immensely challenging, but I believe it can be done.

I implore activists and leaders of environmental groups to work together in the weeks and months to come to prevent an inadequate Final SGEIS from being adopted. If we unify our efforts, this could be achieved by destroying DEC's myth that its gas and oil regulations adequately safeguard the environment and public health.

Our goal must be to restart the current SGEIS proceeding or, better yet, initiate an entirely new GEIS to replace the gas and oil permit guidelines adopted in 1992.

Adopting a new GEIS is precisely what Governor Paterson's key environmental advisor proposed in 2008. EPA proposed adopting a new GEIS in 2009.

The last GEIS took 12 years to adopt. Until a Final SGEIS or GEIS is adopted, New York's shale gas fracking moratorium would remain in effect.

In conclusion, Governor Cuomo could very shortly decide this matter for good or for ill. Everything we have worked so hard to achieve in the last three years is at stake.

The bottom line is: No Final SGEIS, no shale gas fracking in New York. That is the only reason there is still not a single fracked shale gas well in the Empire State.

I will be back in touch very shortly about what you should do next.

Thanks so much.

Count your blessings. Happy Thanksgiving.

Best,

Walter