Greetings. My name is Walter L. T. Hang. Thank you very much for the opportunity today to comment on the New York State Department of Environmental Conservation’s Marcellus Shale Revised Draft Supplemental Generic Environmental Impact Statement (RD SGEIS)

I reviewed the RD SGEIS and determined that it is a deliberately misleading, factually incorrect, incomplete and inadequate proposal for safeguarding New York’s environment and public health. For the detailed reasons documented herein, I request that Governor Cuomo immediately require DEC to withdraw the proposal in order to resolve its fundamental shortcomings. I am joined by nearly 4,000 signatories to a coalition letter making that request. Until that requirement is fully achieved, the de facto moratorium on horizontal hydrofracturing in New York’s Marcellus Shale must be continued.

DEC’s Marcellus Shale draft SGEIS

When DEC released its Marcellus Shale draft SGEIS on 9/30/09, I carefully reviewed it and presented testimony on its wide-ranging shortcomings. I also drafted a letter to former Governor Paterson requesting that he withdraw the draft SGEIS (dSGEIS). My letter noted:

“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.’"

“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.”

“With all due respect, the dSGEIS is a largely theoretical proposal that fails to deal with the harsh realities of DEC's long-standing oil and gas regulatory shortcomings. New York needs the effective means to prevent and clean up oil and gas drilling hazards. Unless and until DEC accomplishes that goal by addressing the drilling concerns outlined herein and voiced by concerned citizens, elected officials and environmental, conservation and community groups, the moratorium on high-volume, "slickwater" horizontal drilling in the Marcellus Shale formation must be maintained.”

The RD SGEIS Must Be Withdrawn Due to DEC’s Failure to Fulfill Executive Order No. 41

DEC’s dSGEIS received such withering criticism that Governor Paterson signed Executive Order No. 41 requiring DEC to: “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 …” On 1/1/11, Governor Cuomo signed a “continuation” of that Order.

DEC’s RD SGEIS simply fails to fulfill the mandate of Executive Order No. 41. First and foremost, it is based on the erroneous assertion that:

“No documented instances of groundwater contamination are recorded in the Department’s files from previous horizontal drilling or hydraulic fracturing projects in New York. No documented incidents of groundwater contamination in public water supply systems were reported by the NYSDOH central office and Rochester district office... References have been made to some reports of private well contamination in Chautauqua County in the 1980s that may be attributed to oil and gas drilling... The reported Chautauqua County incidents, the majority of which occurred in the 1980s and which pre-date the current casing and cementing practices and fresh water aquifer supplementary permit conditions, could not be substantiated because pre-drilling water quality testing was not conducted, improper tests were run which yielded inconclusive results and/or the incidents of alleged well contamination were not officially confirmed.”
 
This statement is factually incorrect and deliberately misleading. Hundreds of natural gas and oil drilling, hydrofracturing and related problems have reportedly impacted private water wells, homes and the environment in New York. Those problems are documented by DEC as well as health authorities in Chautauqua, Cattaraugus and Allegany counties.

Ferrugia’s “Well Documented” Drinking Water Problem “Seemingly Related to Gas Well Development”

For example, DEC is well aware that the Ferrugia family near Jamestown, NY has not been able to drink their well water since 2007 after a gas well was drilled approximately 300 feet from their home.  Their water is so polluted that their veterinarian even warned them not to allow their dogs to drink the water. Chautauqua County Health authorities determined: “This is a well documented case showing drinking water impacts that are seemingly related to gas well development.” Yet, DEC has refused to assist this family.

The Ferrugia’s problem directly refutes the RD SGEIS assertions about gas drilling incidents in Chautauqua County because it: a) occurred relatively recently and is on-going; b) was not prevented by DEC regulatory safeguards or gas well drilling and production improvements; c) is documented by pre-drilling and post-drilling drinking water baseline testing and d) was confirmed by local health officials.

See an interview with Mr. David Ferrugia and extensive documents regarding his water well problem at: http://www.youtube.com/watch?v=0Ka0QJaKZ4s and http://www.toxicstargeting.com/node/7084

Dave Eddy’s Confirmed Drinking Water Contamination in Andover, NY

The Ferrugias are not the only New Yorkers who reportedly were impacted by inadequate regulation of gas drilling. Mr. Dave Eddy and his family experienced drinking water contamination and gas intrusion into their home, reportedly due to hydrofracturing of nearby gas wells. His water pollution was confirmed by the gas drilling firm. See: http://www.toxicstargeting.com/MarcellusShale/videos/andover_independenc... and http://www.toxicstargeting.com/MarcellusShale/documents/allegany_us_ener...

Recently Reported Natural Gas and Oil Spills Further Document DEC’s Regulatory Shortcomings

DEC's hazardous materials spills database identifies hundreds of on-going failures to clean up oil and gas drilling pollution impacts, including at least 72 recently reported natural gas and oil concerns. See: http://www.toxicstargeting.com/sites/default/files/pdfs/jamestown/group1... These problems further document DEC’s regulatory enforcement shortcomings. For example:

LITTLE WELL - EAST SULLIVANVILLE ROAD HORSEHEADS, NY, 6/23/2011: EQUIPMENT FAILURE – BRINE – 200 gallons. “APPROX 200 GALLONS OF BRINE WATER TO GRAVEL AT WELL SITE. THE SPILL WAS THE RESULT OF A LEAK IN A PORTABLE STORAGE TANK.” Meets Cleanup Standards: NO.

STOSCHEK WELL - 49 BECKHORN HOLLOW ROAD VAN ETTEN, NY, 3/8/2010: EQUIPMENT FAILURE – BRINE – 756 gallons. “VALVE ON THE BRINE TANK FROZE AND BROKE. ALLOWING ABOUT 18 BARRELS OF BRINE TO LEAK OUT.” Meets Cleanup Standards: NO.

POYSA WELL #E1 - 61 BRIGGS HILL ROAD VAN ETTEN, NY, 4/8/2011: EQUIPMENT FAILURE – BRINE – 693 gallons. “Valve on brine tank at closed-in well froze and cracked allowing a release of 16.5 barrels of fairly fresh brine.” Meets Cleanup Standards: NO.

GRUNERT NO. 1 WELL – SOUTH MAIN STREET EXTENSION [?], NY NO ZIP PROVIDED, 6/1/2011: EQUIPMENT FAILURE – CRUDE OIL – 200 gallons. “LEAKING ABOVEGROUND PLASTIC TANK THAT’S INVOLVED WITH GAS WELL.” Meets Cleanup Standards: NO.

TUSCARORA BRINE APPLICATION – TOWN OF TUSCARORA DIRT ROADS TUSCARORA, NY, 6/21/2010: DELIBERATE – BRINE. “Caller states Town is using brine from gas wells to control dust on dirt roads and are applying it way too heavy causing runoff to ditches and streams. Also concerned about his well and what might be in the brine.” Meets Cleanup Standards: NO.

A total of more than 400 historic natural gas and oil concerns are documented by DEC and local health authorities. These concerns refute DEC’s assertion that gas extraction problems do not exist: http://www.toxicstargeting.com/sites/default/files/pdfs/jamestown/CCDOH-... and http://www.toxicstargeting.com/MarcellusShale/drilling_spills_profiles


At Least 16 Additional Reasons Why the RD SGEIS Must be Immediately Withdrawn

In addition to the regulatory enforcement problems noted above, the RD SGEIS must be immediately withdrawn and sent back to the drawing board because it does not resolve key concerns voiced by Region 2 of the Environmental Protection Agency (EPA), academic researchers, citizens and local officials. It fails to:


1. Afford equal health protection to all New Yorkers living above the Marcellus Shale formation. The RD SGEIS proposes to ban Marcellus Shale horizontal hydrofracturing in the New York City and Syracuse watersheds and above State Lands and primary aquifers (at least temporarily). If horizontal hydrofracturing is not allowed in those areas, it cannot be considered “safe” for other areas of New York.

2. Resolve mortgage lending problems associated with gas leasing.  The RD SGEIS ignores gas leasing impacts on mortgage lending documented by lenders, including lender reluctance to secure mortgage loans with properties with gas leases; concerns about property valuation and marketability; "set-back" issues regarding the sale of mortgage loans on the "secondary" market and potential voiding of title insurance.  See: http://www.toxicstargeting.com/MarcellusShale/alerts/natural-gas-leasing...


3. Assess horizontal hydrofracturing conducted at the same well pad in both Marcellus Shale and underlying Utica Shale. The RD SGEIS does not address this potential practice, but EPA views it as a matter of grave concern.  See: http://toxicstargeting.com/sites/default/files/pdfs/map-email-responses-...

4. Ban gas drilling wastewaters from being discharged into Publicly Owned Treatment Works designed for sanitary waste or adopt strict pretreatment standards.  POTWs are not designed, constructed or maintained to remove or break down the high levels of Total Dissolved Solids (TDS), toxic petroleum constituents and radionuclides documented in gas drilling wastewater.  EPA reports that shale gas extraction wastewater contaminants may "'pass through' the POTW, causing the POTW to violate its permit, cause 'interference' with the POTW's operation, or contamination of biosolids..." Pennysylvania has banned this practice. EPA has just begun the process of adopting national pretreatment standards for gas drilling wastewaters. See: http://www.toxicstargeting.com/MarcellusShale/documents/letters/2011/06/...

5. Ban toxic gas drilling wastewater from being recycled as hydrofracturing or drilling fluid. Gas drilling wastewaters, including "flowback" as well as "brine" or "produced water," are currently exempted from “GA” effluent limitations designed to safeguard drinking water drawn from the ground in New York. The RD SGEIS fails to eliminate this exemption even though gas drilling wastewater is documented to contain up to 413,000 parts per million of TDS, 72,600 parts per billion of Total Petroleum Hydrocarbons in the diesel range as well as benzene up to 660 parts per billion. Those pollutant concentrations would vastly exceed applicable GA effluent limitations. For example, benzene is only allowed at one part per billion in permitted groundwater discharges.


6. Ban land-spreading of toxic gas drilling wastewaters.  DEC allows gas drilling brine to be spread on land for dust control, roadbed stabilization and melting ice and snow.  EPA recommended: "A program must be implemented to properly manage the elevated radionuclide concentrations in the brine to protect the worker health, public health, and the environment." The practice of gas drilling wastewater spreading must be halted. 


7. Resolve inadequate DEC staffing problems.  The infamous memo that caused DEC Commissioner Grannis to be fired noted: "Many of our programs are hanging by a thread.  The public would be shocked to learn how thin we are in many areas;" The memo further noted: "While the risks to human health have already increased due to cuts to certain environmental quality programs, and especially to enforcement activities related to pollution sources, further cuts would result in unacceptable risks to New Yorkers and unacceptable liability for New York State government (emphasis added)." Governor Cuomo cut DEC’s budget in 2011. See: http://www.toxicstargeting.com/sites/default/files/dec_dobletter_Grannis...

8. Identify New York areas prone to higher seismic activity and propose measures to prevent earthquakes potentially associated with horizontal hydrofracturing.  EPA reported that: "The dSGEIS notes that the State of New York is fairly active seismically.  EPA recommends that NYSDEC limit the number of wells in areas of higher seismic activity, or require additional protective measures and monitoring." See: http://www.toxicstargeting.com/MarcellusShale/documents/comments/2009/31...


9.  Adopt comprehensive radionuclide standards to safeguard gas drilling workers, public health and the environment.  EPA notes that "radionuclide concentrations specified in the DSGEIS represent elevated radionuclide concentrations and need to be handled, managed, and disposed of appropriately to avoid unnecessary exposure to workers, the public, and the environment."  EPA also determined that "such concentrations are considered elevated and may pose unacceptable human health risk mainly via external exposure, inhalation of radon and thoron decay products, and to some degree via inadvertent ingestion." 

10. Resolve EPA concerns about inadequate protection of Ecosystems and Wildlife.  EPA reported: "This section [7.4] is incomplete, and does not account for the changes in the ecosystems in New York State since the preparation of the 1992 GEIS. For example, more animals and plants are on federal and state endangered species lists, habitats of all kinds are more fragmented, invasive species have impacted existing animal and plant populations, and climate change has impacted plant and animal ranges and migrations.”


11. Assess "cumulative impacts" on a comprehensive basis.  EPA notes that it is "concerned that cumulative and indirect impacts need to be more thoroughly discussed in the dSGEIS. Even with its generic format, the EIS should discuss the impacts that may result from past, present, and reasonably foreseeable future projects as well as those impacts associated with drilling and hydrofracturing that may occur later in time and/or further from the immediate project site."



12. Update the 1992 GEIS.  EPA notes that it 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."

13. Require compliance with a critical EPA policy change regarding air quality assessment.  Shortly after the draft SGEIS was released on 9/30/09, EPA adopted a major new policy regarding New Source Review (NSR) and Title V permitting programs pursuant to the Clean Air Act. This reversed the EPA policy in effect when the draft SGEIS was prepared. The new policy changes the requirements for "source aggregation" for air permitting programs.  According to a DEC Powerpoint slide: "Since level of aggregation must be case by case, SGEIS cannot provide definitive answers (emphasis added)."  See: http://www.nytimes.com/gwire/2009/10/14/14greenwire-epa-tosses-bush-era-... and http://toxicstargeting.com/sites/default/files/pdfs/powerpoint_foil-4pg.pdf

14. Eliminate DEC’s current hazardous waste regulatory exemption for gas drilling wastes and impose strict liability for cleaning up gas drilling pollution hazards.

15. Require the New York State Department of Health to share co-lead agency status with DEC and assess health impacts on a comprehensive basis.

16. Require immediate disclosure of uncontrolled gas drilling pollution releases, establish a dedicated fund to remediate gas drilling hazards and require gas drilling firms to provide financial surety for remediating problems by posting bonds or providing insurance coverage.

Conclusion

In closing, I would like to observe that after Executive Order No. 41 was signed, former acting DEC Commissioner Peter Iwanowicz was reported by The New York Times to note: “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. He said ‘it behooves’ the next administration to incorporate the range of different issues in the revised draft.”

DEC and Governor Cuomo stubbornly and deliberately failed to heed that suggestion. That profound unwillingness to respond favorably to public comments made in good faith has brought the agency to where it is today facing an onslaught of disbelieve, criticism and a loss of the public respect that the agency requires to enforce environmental and protection laws.

I met personally with DEC Commissioner Martens last March to implore him to require a public comment period to spell out additional issues that should be addressed by DEC in order to comply with Executive Order No. 41. I similarly asked Governor Cuomo to support that proposal, all to no avail. It is for that very reason that DEC’s RD SGEIS remains woefully inadequate and unacceptable.

Horizontal hydrofracturing in New York’s Marcellus and Utica shale formations presents a grave risk of exacerbating New York’s existing contamination hazards. The last thing that our state needs is more toxic pollution problems that DEC and EPA would be unable to cope with.

For example, there already are 144,739 existing leaking petroleum tanks and spills in New York State that reportedly do not meet clean up standards based on DEC’s own data. At least 6,415 of those leaking tanks and spills are located above the Marcellus Shale formation.

New York’s Marcellus Shale formation also has a legacy of:

88 Class 2 Inactive Hazardous Waste Disposal Sites that are a “Significant threat to the public health or environment – action required.” Many of those sites have not been properly investigated or clean up for decades;

92 Brownfield Class A sites where work is underway and not yet complete. Again, many of those sites have widespread problems that were discovered decades ago; and

505 Resource Conservation and Recovery Act Hazardous Waste Violations.

Against that grim background, the RD SGEIS fails to provide a meaningful plan to safeguard New York from the irreparable harm that could be caused by the vast industrialization associated with Marcellus Shale horizontal hydrofracturing. Unless and until DEC resolves its regulatory enforcement problems and addresses the additional concerns documented herein, New York’s de facto moratorium on horizontal hydrofracturing in Marcellus Shale must not be lifted.