Posted By James J. Periconi, Esq. on November 15, 2011
As mentioned in our last NY Fracking Series post, hydraulic fracturing as a method of extracting natural gas is nothing new in New York State. But the type of high-volume horizontal hydraulic fracturing, or “fracking,” now being considered for the Marcellus Shale formation in New York is new. That’s why it has triggered a revision of the State’s environmental review of the issue and a revision to its regulations of natural gas drilling. This post will summarize the State’s recent Environmnetal Impact Study on the impacts of fracking in New York State to human health and the environment.
What is an Environmental Impact Study?
Under the State Environmental Quality Review Act (“SEQRA”) state agencies are required to perform Environmental Assessments (“EA”) and, if necessary, Environmental Impact Statements (“EIS”) to study and identify significant adverse impacts to human health and the environment for any “significant state action.” The requirement of a permit to be issued by a state agency to drill for gas is such a significant state action. Generic EISs (“GEIS”) are broader and more general than site or project specific EISs, and often look at the environmental impact of an action – like drilling for natural gas extraction – as a whole, instead of the impacts on a site-by-site basis.
EAs and EISs evaluate the environmental impact of a proposed state plan or action (including approving a permit for a private company to undertake an action such as drilling), consider alternatives to that proposed action, and ultimately determine whether there will be a “significant environmental impact” as a result. If there is a significant environmental impact from the proposed action, the State may require that an alternative action be undertaken instead, or may put limitations and conditions on the proposed plan to reduce those environmental impacts. If there is a finding of no significant impact, the action may proceed as proposed.
2011 Revised Draft SGEIS
A copy of the 2011 Revised Draft SGEIS discussed in this section is available here. Before explaining what the New York State Department of Environmental Conservation (“DEC”) did and did not do in the Revised Draft SGEIS, we note that public hearings will be held at four locations across the state on November 16, 17, 29, and 30. Comments on the Revised Draft SGEIS are due to the DEC by December 12, 2011.
In 1992, DEC completed a GEIS which considered the environmental impacts of allowing natural gas extraction through hydraulic fracturing in the State, and determined that there would be “no significant environmental impact” as a result.
In response to an increase in applications for permits to drill horizontal wells for natural gas exploration and extraction in the Marcellus Shale by high-volume hydraulic fracturing – a technique not practical at the time of the 1992 GEIS – DEC undertook to prepare a draft Supplemental GEIS (“SGEIS”) to study the new technique (i.e., high-volume horizontal hydraulic fracturing, or “fracking”) and to identify potential new significant adverse impacts.
In 2009, the DEC issued the draft SGEIS on the environmental and health impacts of fracking in New York State. After extensive public comments stating that the 2009 draft SGEIS was insufficient, in 2010, then-Governor Paterson issued an Executive Order which required DEC to issue a Revised Draft SGEIS by June 1, 2011. The Executive Order also imposed a “moratorium” on fracking in New York State until the DEC published the Final SGEIS (Governor Cuomo extended this moratorium).
On September 7, 2011, DEC published its Revised Draft SGEIS. Without going into the voluminous details of the DEC’s findings, the Revised Draft SGEIS made the following general conclusions and recommendations:
- Site-specific EISs must be performed on wells (whether horizontal or vertical), in the following scenarios:
- Any proposed high-volume hydraulic fracturing where the top of the target fracture zone is shallower than 2,000 feet along a part of the proposed length of the wellbore;
- Any proposed high-volume hydraulic fracturing where the top of the target fracture zone at any point along the entire proposed length of the wellbore is less than 1,000 feet below the base of a known fresh water supply;
- Any proposed well pad within the boundaries of a principal aquifer, or outside but within 500 feet of the boundaries of a principal aquifer;
- Any proposed well pad within 150 feet of a perennial or intermittent stream, storm drain, lake or pond;
- A proposed surface water withdrawal that is found not to be consistent with the Department’s preferred pass-by flow methodology as described in Chapter 7 [of the Revised Draft SGEIS]; and
- Any proposed well location determined by the New York City Department of Environmental Protection (NYCDEP) to be within 1,000 feet of its subsurface water supply infrastructure.
- High-volume hydraulic fracturing operations will be prohibited in the following areas:
- TheNew York Cityand Syracuse Watersheds and within 4,000 feet of these watersheds;
- Primary aquifers and within 500 feet of these aquifers;
- Certain State lands, including in theAdirondacksand Catskills;
- Principal aquifers and within 500 feet of these aquifers, without site-specific environmental review;
- Within 2,000 feet of public water supply wells, river or stream intakes, and reservoirs; and
- Floodplains or within 500 feet of private water wells.
- Mandatory disclosure of the chemical additives used in the fracking water.
- Enhanced well casings.
- Secondary containment and stormwater controls.
- DEC-approved wastewater and solid waste management plans, including requiring closed-loop drilling.
- Additional air quality monitoring and mitigation measures, including a greenhouse gas emission impacts mitigation plan.
- Site-specific ecological assessments for forest patches of 150 acres or more or contiguous forest patches of 30 acres or more within specifiedForestand Grassland Focus areas.
- DEC denial or modification of “risky” well site plans.
- The DEC will revise the applicable regulations to correspond with the conclusions and recommendations in the Revised Draft SGEIS.
This is just a list of some of the most “important” recommendations from the Revised Draft SGEIS. We consider these items to be the most “important” because they are the issues that have been pegged as being the most controversial with fracking – and which are therefore likely to receive the greatest scrutiny, opposition, and legal challenges.
The Controversy Continues . . .
Already, many of the comments received by DEC indicate that the commentors believe that the DEC has not gone far enough to protect human health and the environment. Two such examples are:
- That disclosure of “proprietary” chemicals is not required by federal regulatory agencies is troubling to opponents of fracking. The issue is then left up to the individual states to determine if they will require disclosure of these chemicals, and to what degree. Here, the Revised Draft SGEIS proposes that the drilling companies must disclose all chemicals to the DEC, but that the proprietary chemicals will not be available to the public. Commentors have claimed that this does nothing to adequately protect human and environmental exposure to these chemicals.
- That the Marcellus Shale formation overlaps much of theDelawareand Catskills River Watersheds, which provide unfiltered drinking water to millions of residents inNew York Cityand parts ofNew JerseyandPennsylvania, is of particular concern inNew YorkState. Even before the Revised Draft SGEIS was released, there had been much public opposition to fracking inNew Yorkfor this reason. The Revised Draft SGEIS attempts to deal with this controversial issue by prohibiting fracking within 4,000 feet (less than one mile) of these watershed areas, and within 2,000 feet (less than one-half mile) of public water supply wells, river or stream intakes, and reservoirs. Yet commentors have claimed that these distances are insufficient to adequately protect the drinking water supplies.
Right now, we are not sure how DEC will respond to all of the comments received from the public or if the Final SGEIS will reflect changes to the Revised Draft SGEIS based on those comments. Regardless, based on the sheer volume of comments being sent to DEC both in support of and in opposition to the Revised Draft SGEIS, and many parties asking for more time to review and comment upon these documents, we anticipate that litigation over the adequacy of the Final SGEIS will occur, regardless of any changes DEC may or may not make.
What About the Economics of It All?
The Revised Draft SGEIS is a study of the impacts of fracking on human health and the environment in New York State. That type of study does not take into consideration the economic impacts of the proposed action. Therefore, the State created the “High-Volume Hydraulic Fracturing Advisory Panel” to study the economic impacts of fracking in the State and to draft a report of its findings. In addition to drafting the economic impact report, the Advisory Panel is also charged with approving fees and new taxes to help pay for the costs incurred from fracking. The Advisory Panel is made up of industry, environmental, and local community representatives.
Governor Cuomo established a November 1, 2011 deadline for the Advisory Panel’s final report to be published, but this deadline was not met. Although a draft report was presented this fall, missing from the initial study was the cost to local governments in New York from fracking operations; only net job increases in the State was presented to the committee. The Advisory Panel’s study thus far also lacks estimates of what resources (for activities such as supervision and enforcement) will be needed from the following State agencies: Health; Transportation; Agriculture & Markets; and Public Service.
Based on these inadequacies, DEC Commissioner Martens stated that the Advisory Panel’s final report will address the costs, not just the benefits, of fracking to the State, State agencies, and local governments, including road repairs, police and fire costs, and hospital and medical expenses associated with the industrialization of portions of upstate New York. The Advisory Panel will continue to study these additional economic issues, and plans to reconvene in January 2012.
The DEC hopes that a report will be issued by the first or second quarter of 2012, although DEC Commissioner Martens stated that it is unlikely the report will be ready in time for the Governor’s budget proposal in January, which may delay publication of the final report – and possibly even the start of fracking operations in New York – even further.
Our next post in the Fracking NY blog series will focus on the DEC’s proposed fracking regulations for New York State.