December 30, 2010

Honorable David A. Paterson
Governor, State of New York
The Capitol
Albany, NY 12224

Dear Governor Paterson:

I write to thank you very much for signing Executive Order No. 41 regarding Marcellus Shale gas. I also request you to take several actions before leaving office to make sure that its goals can be achieved.

You have required the 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;”

As you know, I wrote a coalition letter requesting you to withdraw the draft SGEIS and “send it back to the drawing board” due to its fundamental inadequacies. That letter has more than 10,000 signatories, including elected officials, business owners, environmental groups and concerned citizens. I am grateful that DEC is now required 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. 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.” He reportedly added, “‘it behooves’ the next administration to incorporate the range of different issues in the revised draft.”

DEC purposely excluded a broad range of critical issues from the scope of the SGEIS proceeding by ignoring the testimony of numerous elected officials, municipal authorities, academic researchers, environmental groups and individuals. In order to fulfill Executive Order No. 41, DEC must reopen the scoping process and invite full public participation in revising the draft SGEIS.

With those goals in mind, I request you to take the following actions before leaving office:

A) Begin the process of convening a Citizens Advisory Committee as well as a separate Technical Advisory Committee to guide DEC in its decision-making regarding Executive Order No. 41. 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) Require DEC to accept public comment for no less than 30 days regarding how it can fulfill the requirements of Executive Order No. 41; require DEC to respond to those comments in writing before beginning the process of revising the draft SGEIS; and afford the public on-going opportunities for participation and comment comparable to State Superfund proceedings.

C) Make sure DEC’s efforts to revise the draft SGEIS include the following actions:

1. Require discharges of natural gas flowback, drilling and production wastewaters to meet New York’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 fracking. Natural gas wastewaters have been documented to contain high concentrations of Total Dissolved Solids (TDS), toxic petroleum constituents and Technology Enhanced Naturally Occurring Radioactive Materials (TENORM). These persistent pollutants can “pass through” “secondary” wastewater treatment systems, concentrate in residual sludges and cause water quality impairments and worker hazards.

    

2. Determine if individual EIS proceedings should regulate Marcellus Shale horizontal hydrofracking instead of a Generic EIS. DEC proposed to require individual EIS reviews for the NewYork 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 hydrofracking 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 are granted on the basis of a site-specific, individual EIS review. A Generic EIS review is not acceptable for that purpose.

    

3. Determine if a new GEIS is required to regulate Marcellus Shale horizontal hydrofracking instead of a Supplemental GEIS. 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 hydrofracking regulations. DEC must respond to that concern as well as all the other critical issues identified by EPA.

   See: http://www.toxicstargeting.com/MarcellusShale/documents/epa_letter

    

4. Determine if the 1992 GEIS regulations are adequate to safeguard public health and the environment 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 its own voluminous spill data as well as extensive information compiled by Chautauqua, Cattaraugus and Allegany County Health Departments.

The review of DEC’s rationale for undertaking a Supplemental GEIS instead of a new GEIS must include an investigation of the following information:

On November 9, 2009, I released for public review detailed DEC spill information that identified more than 270 incidents involving drilling 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 never been cleaned up. Many of those problems have exceeded remediation requirements for decades.

See: http://www.toxicstargeting.com/MarcellusShale/drilling_spills_profiles

On April 5, 2010, I released extensive information regarding widespread natural gas impacts documented 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 yet to be cleaned up.

See: http://toxicstargeting.com/MarcellusShale/documents/chautauqua_cattaraug...

I also released documents and a video regarding a gas development firm that reportedly impacted a residential home in Andover, NY and offered to compensate the homeowner. See: http://toxicstargeting.com/MarcellusShale/documents/allegany_us_energy_pdfs and http://toxicstargeting.com/MarcellusShale/videos/andover_independence_ny

Conclusion

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 Hydrofracking are “appropriately avoided or mitigated” prior to the permitting of that activity. The actions I respectfully request you to undertake would help assure that goal is achieved.

Thank you for your outstanding leadership regarding Marcellus Shale horizontal hydrofracking. You have provided a model of regulatory effort that the incoming Cuomo administration, the Environmental Protection Agency and other states should emulate.

Thank you also for your many years of public service. I wish you the very best of luck in all your future endeavors.

Very truly yours,

Walter Hang