December 31, 2009
Bureau of Oil & Gas Regulation
Division of Mineral Resources
New York State Department of Environmental Conservation
625 Broadway, Third Floor
Albany, NY 12233-6500
Re: dSGEIS Comments
Greetings:
Toxics Targeting is an environmental data firm in Ithaca, NY. We compile extensive information from local, state and federal environmental agencies for more than 550,000 known and potential toxic sites in New York State, including active oil and gas wells.
I write today to comment on your department's draft Supplemental Generic Environmental Impact Statement on the Oil, Gas and Solution Mining Program, Well Permit Issuance for Horizontal Drilling and High-Volume Hydraulic Hydrofracturing to Develop the Marcellus Shale and Other Low-Permeability Gas Reservoirs (dSGEIS).
For reasons that I will document herein, I have determined that the dSGEIS is fatally flawed. That is why I respectfully request that it be withdrawn. Thank you for the opportunity to provide input to your agency on this critically important regulatory matter.
Introduction
High-volume "slickwater" hydrofracking has been proposed to extract Marcellus Shale gas on an unprecedented scale in New York, but the Department of Environmental Conservation (DEC) is required to update its 1992 Oil, Gas and Solution Mining Generic Environmental Impact Statement (GEIS) prior to issuing new horizontal drilling permits. The goal of that Supplemental GEIS (SGEIS) reportedly is "to ensure that all environmental impacts from drilling are addressed."
The draft SGEIS is based on one critical, bedrock assumption: DEC's 1992 GEIS adequately safeguards against: "impacts on water quality; impacts of drilling in sensitive areas, such as Agricultural Districts, areas of rugged topography, wetlands, drinking water watersheds, freshwater aquifers and other sensitive habitats; impacts caused by drilling and production wastes; impacts on land use; socioeconomic impacts; impacts on cultural resources and impacts on endangered species and species of concern."
Based on that assumption, DEC determined that the scope of the SGEIS would be limited to three issues: 1) required water volumes in excess of GEIS descriptions; 2) possible drilling in the New York City Watershed, in or near the Catskills Park, and near the federally designated Upper Delaware Scenic and Recreational River; and 3) longer duration of disturbances at multi-drilling sites.
DEC concurrently determined: "However, it is not the Department's intent or objective to re-open the 1992 Findings for any activity that was reviewed in the GEIS and which will remain consistent. The dSGEIS will only address new activities or new potential impacts."
Toxics Targeting's Data Review
In order to test the validity of that assumption, Toxics Targeting undertook a review of oil and gas related hazardous substance spills and uncontrolled releases reported to DEC. This involved compiling spill data associated with various oil and gas company names, materials reportedly associated with oil and gas drilling activities, locations of oil and gas facilities and other oil and gas related activities.
The resulting total of 270 reported oil and gas spills are posted for your review at http://www.toxicstargeting.com/MarcellusShale/drilling_spills_profiles. These spills and uncontrolled releases reportedly caused fires, explosions, massive pollution releases, contaminated drinking water sources, home evacuations, tainted farmland and widespread threats to wetlands, streams, ponds, aquifers and other "sensitive receptors." Many of these DEC-reported problems have exceeded clean up standards for decades.
In short, DEC's own data document systematic, on-going failures to prevent oil and gas drilling pollution impacts or to clean them up. It is imperative that DEC resolve those regulatory shortcomings prior to issuing new drilling permits. Otherwise, the City of New York's reservoirs, other critical water supply sources and the environment of the Marcellus region as a whole could become irreparably contaminated.
Widespread Oil and Gas Hazards
Among those 270 oil and gas spills, a total of 65 reportedly do not meet clean up standards up to 26 years after being reported.
The remaining 205 spills reportedly meet clean up standards, but many of these oil and gas spills apparently were administratively closed as meeting clean up standards simply by being transferred from DEC's Spills Unit to its Division of Mineral Resources.
DEC's own information documents many spills are never remediated because the Division of Mineral Resources determined that no further action can be taken. Those cases routinely involve oil and gas contamination that spreads extensively in rivers, lakes, streams and wetlands and exceeds clean up standards. Many of those oil and gas releases reportedly have continued for decades. Notable spills include:
Dale Fox Well, Spill: 9610441, 11/20/1996: "DALE FOX DRILLING GAS WELL ON BIXBY HILL RD, FREEDOM. NATURAL GAS ESCAPED THRU FAULT IN SHALE, AFFECTED PROPERTIES APPX 1 & 1/2 MILES SW ON WEAVER RD. TOWN OF YORKSHIRE. GAS BUBBLING IN RON LEWIS’S POND. BUBBLING IN DITCH WEST SIDE OF WEAVER RD. 12 FAMILIES EVACUATED. GAS IN LEWIS’S BASEMENT (BUILT ON SHALE). FARMERS WELL IN BARN 11708 WEAVER RD (STEVE WOLDSZYN) VENTED TO OUTSIDE. GAS COMING UP THOU GROUND IN LEWIS’S YARD."
NATIONAL FUEL Spill: 0375293, 09/10/2003: "CALLER SAID THAT ONE OF THEIR VALVES BROKE, CAUSING ABOUT 100,000 GAL OF BRINE SOLUTION TO SPILL...SOME OF THIS GOT INTO SHANADA CREEK; THE BRINE FLOWED TO THE WEST FROM THE BLDG TO AN OUTSIDE DRAIN AND DOWN A FIELD TO A WOODED AREA NEAR THE INJECTION WELL AND THEN SOUTH TO THE CREEK."
HARVEY WELL Spill: 0507041, 09/10/2005: "HAZARDOUS MATERIAL 800.00 GALLONS; THE BRINE OVERFLOWED INTO A DITCH THAT FLOWED TO A SMALL POOL/CATCH BASIN. THE BRINE THEN FLOWED UNDER THE ACCESS ROAD INTO A WOODED AREA WITH SEVERAL INTERMITTENT STREAMS RUNNING THROUGHOUT. IMPACTS COULD BE NOTED IN THE DITCH, POOL/CATCHBASIN AND AT THE CULVERT OUTLET."
NATIONAL FUEL GAS Spill: 9707892, 10/03/1997: "BRINE, 15000 GALLONS; BRINE TANK OVER FLOWED DUE TO APPARENT EQUIPMENT FAILURE (VALVE FAILURE) MATERIAL IS FLOWING OVERLAND INTO LOCAL CREEK; THE BRINE RAN THROUGH THE FIELD FROM THE NATIONAL FUEL SITE TO THE DITCH TO THE CULVERT TO THE SCRUB BRUSH TO THE CREED [sic] WHICH IS A TRIBUTARY TO THE GENESSEE RIVER. THE VEGETATION WAS KILLED IN THIS PATH; ONE LANDOWNER HAS COWS THAT DRINK FROM THE CREEK. NATIONAL FUEL WILL BUY A NEW FENCE & PROVIDE WATER FOR THE COWS. CHRIS MILLER FELT THAT THE BEST SOLUTION TO THE PATH OF DEAD VEGETATION IS TO LEAVE IT TO GROW BACK NEXT SUMMER."
BUCKEYE COAST PIPELINE Spill: 0270494, 12/16/2002: "THE PIPELINE BREAK OCCURRED BEHIND THE MAUER’S SHOP AT 9732 SNIPERY ROAD AND WAS ON A SLOPE. THE BRINE THEN FLOWED INTO AN AREA THAT LOOKS LIKE A HARD BOTTOM SWAMP. ALL THE TREES IN THIS AREA ARE DEAD. IT APPEARS THERE IS A COUPLE OF ACRES KILLED; ALL THE TREES ARE STILL DEAD IN THIS AREA, BUT THE GRASSES AND SHALLOW ROOTED VEGETATION IS COMING BACK ALL ACROSS THE IMPACTED AREA. PB ENERGY HAS TAKEN OVER OWNERSHIP OF THE PIPELINE AND WILL WORK OUT A SETTLEMENT WITH BOTH PROPERTY OWNERS. THEY MAY TRY PLANTING SOME SALT RESISTENT TREES IN THE SWAMP AREA."
Inadequate Proposed dSGEIS Safeguards
In light of the extensive areas impacted by reported oil and gas spills, the dSGEIS's safeguards are entirely inadequate. The Bixby Hill Road spill reportedly migrated 8,000 feet in minutes and polluted wells, homes and agricultural land and surface waters. Other spills have reportedly migrated downstream up to 4,000 feet. Yet, site-specific State Environmental Quality Review is only required for gas well pads proposed within 1,000 feet of a public water supply well, within 300 feet of a reservoir and 150 feet of a private well or watercourse.
According to DEC's Marcellus Shale webpage, "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." At a minimum, the spill information I have compiled calls that conclusion into question.
Hydrofracking Reportedly Impacted Drinking Water Well in Geneva, NY
DEC's Marcellus Shale webpage also notes: "No known instances of groundwater contamination have occurred from previous horizontal drilling or hydrofracking projects in New York State (emphasis added)." That conclusion is also contradicted by available information.
I have posted for your review a video of a homeowner in Geneva, NY explaining how her water well reportedly became impacted after a natural gas well on an adjoining property was fracked: http://www.toxicstargeting.com/MarcellusShale/videos/water_well_reportedly_impacted_by_fracking
I have posted for your review a key liability provision of the gas lease signed by the homeowners in Geneva, NY as well as a check paid to them by Chesapeake Appalachia, LLC for "damages:"
http://www.toxicstargeting.com/MarcellusShale/private_water_well_reportedly_impacted_by_fracking
It is my understanding that DEC did not know about this family's drinking water problem until it was reported by a local newspaper (see attached article). DEC also reportedly lacks authority to require disclosure of the date of the hydrofracking event. This is a serious regulatory shortcoming that is inconsistent with DEC's assumption that its existing gas drilling regulations are adequate.
According to Chesapeake, "Based on reviews of state oil and gas agencies, there is not a documented case of drinking water contamination related to hydraulic fracturing of a deep shale gas well." See: http://www.chk.com/Media/MarcellusMediaKits/Marcellus_Hydraulic_Frac_Fact_Sheet.pdf
The firm's declaration is inconsistent with the reported water well problem in Geneva, NY. It is my understanding that the natural gas well adjoining the homeowners' property was reportedly drilled 2,350 feet deep into the Queenston formation.
DEC's lack of awareness of the referenced water well problem should prompt a comprehensive investigation of the family's drinking water quality as well as the overall environmental impact of the adjoining natural gas well. I request that New York State authorities require Chesapeake Appalachia to disclose all components of the fracking fluid employed at the gas well next to the homeowners' property, when all drilling and fracking activities were undertaken at that site as well as all internal reports, studies, documents and other records produced by the firm regarding this matter.
I also request that the appropriate New York State authority require Chesapeake Appalachia to disclose all other instances of natural gas impacts on the environment or the public health in New York that it failed to report to DEC, including all financial settlements that it might have entered into.
This information must be compiled prior to when DEC makes decisions regarding the dSGEIS's ability to regulate oil and gas drilling activities.
Division of Mineral Resources Spills Data
In addition, it is my understanding that DEC's Division of Mineral Resources manages spill data separate and apart from its Division of Spills. Please find attached an internal Region 9 DEC Memorandum of Understanding that reports:
"1. Mineral Resources will handle normal spills at the well head, pipeline to the stock tank and the stock tank on the lease property.
2. The spill unit will handle any spills off the lease site or past the stock tank."
I submitted a Freedom of Information Law (FOIL) request for all spill data compiled by the Division of Mineral Resources, but have not yet received any documents responsive to my request.
Until this information is publicly available, it cannot be known for certain how many oil and gas spills, if any, are excluded from the DEC's hazardous materials spills database. Any additional spills documented by the Division of Mineral Resources must be reviewed to determine the full extent of DEC's failure to prevent and clean up known contaminant releases. That information is critical to determining the adequacy of DEC's oil and gas regulations.
Additional Concerns
I request that the scope of the SGEIS be expanded to address the following issues:
1. Wastewater Concerns
The dSGEIS fails to provide any meaningful regulation of natural gas drilling "produced" wastewater that is documented to contain extremely high concentrations of dissolved solids as well as toxic and radioactive materials. It essentially requires local authorities to deal with that matter on their own. That approach has already proven to be fundamentally flawed.
The Village of Cayuga Heights, NY disclosed last March that its sanitary wastewater treatment plant received more than 3.0 million gallons of contaminated gas drilling wastewater. Without undertaking a state-required "headworks analysis" or enforcing local pretreatment requirements, the wastewater was discharged into an impaired section of Southern Cayuga Lake, where approximately 30,000 local residents obtain their drinking water downstream of the facility's discharge. That practice has been temporarily halted.
Discharge of gas drilling produced wastewater to publicly owned treatment works must be banned unless the wastewater's toxic characteristics have been fully documented and pretreatment requirements have been adopted to prevent "pass-through," concentration of toxics in residual sludges or impacts on receiving waters. Similarly, traditional deep-well injection of contaminated drilling wastewater warrants equal DEC review and regulatory action.
2. Reporting and Liability Concerns
State-required reporting of uncontrolled oil and gas contamination releases is incomplete and warrants revision. DEC must require those releases to fulfill the reporting requirements required for leaking underground tanks. Remediating oil and gas releases must impose strict liability pursuant to the State Navigation law or other legal authority.
3. Dedicated Oil and Natural Gas Spill Remediation Funds
New York State's Spill Remediation Fund reportedly can be tapped for emergency response associated with oil drilling contaminant releases. The availability of the Fund for cleaning up natural gas drilling hazards is unclear. New York requires a dedicated Oil and Gas Drilling Remediation Fund with sufficient financial wherewithal to respond to uncontrolled releases in a timely fashion.
4. DEC Regulatory Staffing
DEC is woefully understaffed for managing existing natural gas drilling activities. Prior to permitting additional natural gas drilling activities, fees should be increased to make sure DEC has the requisite staff to manage its regulatory responsibilities on a self-sustaining basis. A total of 17 staff for approximately 7,000 existing gas wells is utterly inadequate. Further budget cuts to DEC's pollution control programs must be avoided that could exacerbate existing oil and gas regulatory limitations.
5. Private Right of Action, Performance Bonds, Pollution Clean up Insurance
Given the long-standing shortcomings of existing oil and gas regulation, citizens must have a private right of legal action to safeguard their health and property values. Oil and gas firms must also post performance bonds or obtain clean up insurance to remediate any pollution hazards that occur without delays.
Conclusion
With all due respect, the dSGEIS is a largely theoretical proposal that fails to address the harsh realities of DEC's long-standing oil and gas regulatory shortcomings. As a matter of statute, New York is required to provide the means to prevent and clean up oil and gas drilling hazards in a timely manner. Unless and until DEC accomplishes that requirement by addressing the gas drilling concerns summarized herein and otherwise voiced by citizens, elected officials, government agencies and environmental, conservation and community groups, the existing de facto moratorium on high-volume, "slickwater" horizontal drilling in Marcellus Shale must be maintained.
For that reason, I request the draft SGEIS to be withdrawn. I also request that the Scope of the SGEIS be reopened for public review and comment.
Finally, I have attached detailed comments submitted by Region 2 of the U. S. Environmental Protection Agency. Those comments echo many of the concerns spelled out herein regarding the inappropriateness of relying on the 17-year-old GEIS, the inadequacy of DEC's proposed efforts to safeguard water quality, the need to manage natural gas drilling wastewater documented to be contaminated with toxics, high levels of dissolved solids and radioactive materials and the request that these matters be resolved prior to the completion of DEC's review.
I specifically urge DEC to heed two key observations offered by EPA:
"While protecting the New York City watershed is important because of the millions of New Yorkers who rely on this drinking water supply, we also have concerns about water quality impacts throughout the state. Just because fewer people rely on upstate water sources does not imply that these supplies are not also worthy of protection."
"In conclusion, EPA believes that NYSDEC has prepared an informative dSGEIS on hydrologic fracturing of the Marcellus Shale. However, we have concerns regarding potential impacts to human health and the environment that we believe warrant further scientific and regulatory analysis. Of particular concern to EPA are issues involving water supply, water quality, wastewater treatment operations, local and regional air quality, management of naturally occurring radioactive materials disturbed during drilling, cumulative environmental impacts, and the New York City watershed. EPA recommends that these concerns be addressed and essential environmental protection measures established prior to the completion of the SEQRA process (emphasis added).
While EPA's request might be considered advisory, I believe that the public interest would be best served by withdrawing the dSGEIS until all those matters are resolved with full public participation.
I trust you will find my comments self-explanatory, but please do not hesitate to contact me if I can answer any questions that I may have raised. Thank you for your consideration.
Very truly yours,
Walter Hang