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Comments by Anthony Ingraffea.
Comments by Lou Allstadt.
Comments by Helen Slottje
Drilling and the DEC:
Responding to New Guidelines
Anthony R. Ingraffea Ph.D., P.E.
Physicians, Scientists, and Engineers for Sustainable and Healthy Energy, Inc.
Ithaca, NY
July 25, 2011
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For full video presentation see:
http://shaleshockmedia.org/2011/08/01/experts-speak-out-on-revised-dec-guidelines-for-drilling-2/
For Power Point Slides see:Â Â
http://www.tcgasmap.org/media/Ingraffea%20Slides%207-25-11.pdf
Purpose of An Environmental Impact Statement (slide [...]" />
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Drilling and the DEC: Anthony R. Ingraffea Ph.D., P.E. Physicians, Scientists, and Engineers for Sustainable and Healthy Energy, Inc. Â For full video presentation see: http://shaleshockmedia.org/2011/08/01/experts-speak-out-on-revised-dec-guidelines-for-drilling-2/
Responding to New Guidelines
Ithaca, NY
July 25, 2011
For Power Point Slides see:Â Â
http://www.tcgasmap.org/media/Ingraffea%20Slides%207-25-11.pdf
Purpose of An Environmental Impact Statement (slide 2)
I’m going to do a critique of certain elements of the draft generic environmental impact statement. And then I have decided to take certain elements of the impact statement and analyze them in terms of what impacts are being addressed and what mitigation or prohibition measures are being proposed.
First, what is an environmental impact statement, what’s it supposed to do? It’s supposed to identify potential impacts to the environment and then it’s supposed to assess those for their potential severity and then it’s supposed to propose either mitigation to reduce that severity, or if the severity is judged to be too severe a severity, it’s supposed to propose a prohibition.
Remember, the GEIS is not the law of the land. It is not a regulatory document. It is not a legally binding document. All it can do, is either propose mitigation, or propose prohibition. So those of you who have been reading the GEIS notice that very frequently you’ll see a phrase like, “the DEC proposes to require, via permit condition and/or regulation, that something should be mitigated or prohibited.†Then, at the end of the GEIS there’s a rule- making period that’s supposed to occur, in which either mitigation is enforced by permit condition or regulation or there is a prohibition by permit condition or regulation.
I’m going to proceed to take only two of the hundreds of items in this over a thousand (1,000) page document, only two items that have been identified as potential environmental impacts for which mitigation procedures or mitigation recommendations have been stated.
Focus on Two Potential Impacts and Proposed Actions (slide 3)
My focus tonight is only on two of those elements because I think they are important from a local point of view because they effect people’s underground sources of drinking water, and from a global point of view because they effect Climate Change.
1) “Emission of gases with global warming potential due to natural gas well drilling and production, 6.6â€.Â
2) “Contamination of groundwater/aquifers from natural gas, drilling fluids, or HVHF fluids in the wellbore, 6.1.4â€.
This is an extract taken directly from table 11.1.
For those who haven’t started reading this yet— it’s daunting. I suggest you go to the last section, table 11.1, because unfortunately, the people who wrote the SGEIS waited until the last section to give everybody a road map for how to read the document. The last part is table 11.1, it’s 20 pages long. But in that table the various potential impacts are identified, like   “Emission of gases with global warming potential due to natural gas well drilling and productionâ€, and then it takes you to the proper section in the GEIS where the proposed mitigation or prohibition is described, in this case section 6.6. It’s a roadmap, that’s where you start. Start with the last section.
6.6 Greenhouse Gas Emissions: GWP Factors And Time Horizon (slide #4)
The SGEIS identifies a potential environmental impact from global greenhouse gas emissions resulting from carbon dioxide from burning natural gas and methane from the emission of natural gas. The first thing it cites is an industry source.
“Chesapeake Energy Corporation’s July 2009 Fact Sheet on gas emissions states that CO2 has a GWP of 1 and CH4 has a GWP of 23, and that this comparison allows emissions of greenhouse gases to be estimated and reported on an equal basis as CO2e. However, GWP factors are continually being updated, and for the purpose of this analysis as required by the Department’s 2009 Guide for Assessing Energy Use and Greenhouse Gas Emissions in an Environmental Impact Statement, the 100-year GWP factors.…were used to determine total GHGs as CO2e.â€Â                                                          Page 6-197
The first thing our science document cites is not a refereed journal publication in the science literature, it cites “Chesapeake Energy Corporation’s July 2009 Fact Sheet†in which it claims that methane has a global warming potential twenty three times that of carbon dioxide. That information was accurate in 1996. They go on to say that the “global warming potential factors are being continually updatedâ€. Yes they are, and the GEIS ignored the most recent update.
They then go on to say that they are going to pick the one hundred year global warming potential. In assessing whether methane or carbon dioxide is more lethal in terms of, or more serious in terms of global warming potential, you have to pick a time period, it’s called a time horizon. And typically, currently in the science literature those time horizons are 20-years, 100-years, and 500-years. If you are concerned about what’s going to happen in the next generation with Climate Change, you should be most concerned about the twenty year time horizon. Our GEIS says, “forget the 20-years, let’s go to 100â€.
6.6 Greenhouse Gas Emissions: GWP Factors And Time Horizon (slide #5)
The above table says Methane is 25 times more potent than carbon dioxide over a hundred years. It’s 72 times more potent than carbon dioxide over 20 years, but that’s a big number so they ignored it, in my opinion. But both of these numbers are incorrect, they don’t reflect current science. They reflect 15 year old science. The GEIS does cite the current paper by the Duke University scientists, but does not cite the current paper by the Cornell University scientists, either the economic scientists or the climate scientists. There is obviously a prejudice in Albany against Cornell.
The point is that the current SGEIS ignores much more recent research on GWP’s and the difference between HVHF and conventional wells in methane emissions. For example, the correct number here is not 25 as Chesapeake would say, it’s 33. And the correct number here is not 72, it’s 105.
Table 6.16 – Summary of Estimated Greenhouse Gas Emissions (Revised July 2011) (slide #6)
And then the SGEIS goes on to cite…and the only thing I can figure is it’s a mistake… it says that the estimated first year green house gas emissions from a single conventional vertical well are more than those from a horizontal well. It’s gotta be a mistake, I hope they catch it, it can’t be correct. Then they go on to say, if you have 4 wells, you don’t get 4 times the emission, you only get less than twice [the emissions]. This obviously doesn’t make sense.
Marcellus Well Being “Finished†Outside Dimock, Pa, June, 2011: Major Source of Methane Emissions (slide #7)
I want to make sure you understand what I’m talking about when I say there is methane being emitted. This is a FLIR (Forward Looking Infra-Red Radar) video. It shows what you can’t see with the human eye, namely methane being emitted from the finishing of a well in Susquehanna county. Those clouds are methane, you would not be able to see them by the naked eye. This is what happens during the flowback period when the gas is not flared but rather it’s vented. And our SGEIS gives the industry the choice, they can vent or they can flare.
Compressor Station in PA Under Standard and Infrared Photography: Major Source of Methane Emission as GHG (slide #8)
Now Im going to show you the next source. I’m going to show you something on a DVD, again through FLIR you are going to see a video taken from a compressor station, again in Susquehanna county. And you are first going to see it through regular video, like you would get with your DVD video. And then you are going to see it in FLIR. In the first video you won’t see anything, and when you get to the color, you will see methane. And those of you who live in Ellis hollow, drive by the compressor station and turn on a FLIR and this is what you will see. So those are two sources of methane, and as we say in our study at Cornell University, they’re very substantial sources. And I think they are being drastically underestimated in the SGEIS.
Bubbling in Muncy Creek, Lycoming County, PA: Example of Migration of Methane as GHG (slide #9)
One other one, you’ve heard about the incidents of the bubbling of methane in the Susquehanna river, and bubbling in various creeks. I’ll show you a video of bubbling, but when you look at this you have to understand that it’s easy to see gas bubbling in a creek or a lake. You can’t see gas bubbling in the woods. So for every incident of gas bubbling in a creek or a lake you have to ask, and this question hasn’t been asked, it hasn’t been addressed in SGEIS, how many incidences of methane migration to the surface, not to underground sources of drinking water, have been detected? Or are they even being measured, in a regional sense? And the answer is no. I can find nothing in the SGEIS that the study has been done.
This was a trout stream. So, as you can guess this is the result of inadequately engineered or inadequately constructed or inadequately maintained wells. And clearly the larger the number of wells the more incidences like this we are going to have. Because, as I’m about to point out, it is impossible to build a well that does not leak. You can quote me on that.
Identification of Impact and Proposed Mitigations: Table 11.1 (slide #10)
What does the SGEIS propose as mitigation measures? They say we are going to require the development of a greenhouse gas emissions impact mitigation plan. In other words the SGEIS suggests the creation of an assessment of a mitigation. It requires the development of a leak detection repair program and leak detection repair programs are part of the USEPA’s natural gas star program for which the GEIS encourages participation, does not require it. It also requires reduced emission completions only where a gathering pipeline is already in place. So all those emissions I showed you, especially the clouds of gas coming off at completion, that can happen if the company says “we don’t have a gathering line in place.†So I think those are fairly mild recommendations for mitigation.
Identification of Impacts and Proposed Mitigations (slide #11)
Let’s move on to the second one, “Contamination of groundwater/aquifers from natural gas, drilling fluids, or HVHF fluids in the wellbore, 6.1.4â€. The identified impact is the possible contamination of groundwater aquifers from natural gas drilling fluids, or high volume hydraulic fracturing fluids in the wellbore. And the proposed mitigation is to specify as a permit condition more stringent casing construction and cementing, and reporting of well information and testing of the cement job, all of which are currently required, so I don’t know what’s new here but I want to pick on one of those items, the one that’s underlined in red.
Because in making the announcement of the new SGEIS there was a Fact Sheet that was distributed, and I’ll show you that fact sheet in a minute, but let’s make sure you understand what we all mean when we say migration from a well.
Methane Migration to Well Head, Dimock, PA: Major Source of Methane Emissions and Indication of Possible Water Well Contamination (slide #12)
That’s natural gas coming up outside the well. Hear it? That natural gas is going into the atmosphere. It will continue to go into the atmosphere for the life of the well. It’s also possible that that migration outside the well could cause underground migration of methane and any other hydrocarbons mixed with the methane into an underground source of drinking water. This happens frequently.
The “New†Intermediate Casing Myth (slide #13)
So the GEIS says there is going to be a new intermediate casing that’s going to PREVENT the migration of gas. That’s gotta be incorrect word choice, I can’t believe that the GEIS would tend to lie to us to say that using something they’re already using is going to prevent something that’s already happening. So, the new intermediate casing, I want to emphasize, is not new.
As-Built Casing Layouts for 2 PA Marcellus Wells That Contaminated Water Wells (slides #14 & #15)
I’m showing you here two schematics, one from each of two wells from Dimock Pennsylvania where there are five layers of casing. This well failed. In fact this is the schematic of the well I just showed you bubbling. Here’s another one with four layers of casing. The point is that at least three layers of casing, and frequently four, five, or six layers of casing are used in high volume hydraulic fracturing of wells in shale formations. So I think the SGEIS is being a little bit disingenuous by saying adding a new layer of casing is going to prevent a problem which is chronic.
Sustained Casing Pressure (SCP) and Gas Migration Are Chronic Problems (slides #16 & #17))
And here’s data from the Industry that shows just how chronic it is. This is a plot that shows the percentage of wells affected by sustained casing pressure as a function of the age of the well. Brand new wells about 5 percent of the time leak. And of course wells age, the older they get the higher the percentage of leakage. These are offshore wells, here’s data from 360,000 onshore wells, again about 4.5 percent of them leak initially.
“NYS DEC NEWS,
FACT SHEET: WHAT WE LEARNED FROM PENNSYLVANIA†(slide #18)
I want to conclude by pointing out that the GEIS also made a point to say that they learned something from Pennsylvania. And I’m here to tell you that if they did, they haven’t told us everything they learned. And I wish they would. And if they haven’t learned some things, I hope they go learn them. And here are the things that I don’t think they’ve learned.
What DEC Did NOT Report from What Was Learned in PA (slide #19)
The suggested, required addition of an INTERMEDIATE, “PROTECTIVE†layer of casing, does NOT prevent methane or other fluid migration.
The SGEIS does not contain a statistical analysis from the experience of 3500+ PA Marcellus wells of:
- Incidents of fluid migration. e.g. # of confirmed well water contaminations
- Incidents of blowouts, pipeline failures, pad fires, etc.
- Methane emissions, vented and fugitive
- Flowback, “produced waterâ€, and brine waste volumes
- Liquid and solid waste final disposition
- Citations and enforcements
The suggested addition of an INTERMEDIATE, “PROTECTIVE†layer of casing, does NOT prevent migration as the SGEIS says it does. It can to some degree mitigate it. But it is just another layer of casing, another layer of cement and it might be the outermost and it might fail. The vast majority of wells that show gas migration have intermediate casing already, this is nothing new.
The SGEIS, and this is the most important thing I’m going to tell you tonight, doesn’t do, in my opinion, good enough statistical science. We’ve had 4 years of operation and 3500 wells in Pennsylvania in the Marcellus, there is not a single statistical analysis in the SGEIS, as far as I can tell, that says the number of incidents of fluid migration, i.e. the number of confirmed well water contaminations, how many wells were contaminated, water wells. DEP has that information, why doesn’t DEC publish it? And tell us, here are the odds.
It doesn’t cite any statistical analysis of the number of blowouts, pipeline failures, pad fires, or any other serious accidents that have occurred. Why not? That’s DEP record, it’s gotta be there, all DEC has to do is call them and say send it, put it in the GEIS then we know it.
It does not contain any statistical analysis of Methane emissions. Either vented or fugitive, from the 3500 wells. So how are we going to assess what the global greenhouse gas impact is going to be in New York state from the 50 to 60 thousand wells that the SGEIS predicts will be drilled in New York state over the next twenty years.
It does not show any statistical analysis of flow back, produced water, and brine waste volumes. As you know, DEP in the last two years has required the statement from each well operator of what’s being produced, and that data has gone on a website at DEP. There should have been a very, very correctly done statistical analysis that says, here’s how much comes back from each well and here’s where it went. Instead they’re leaving us to do this?
Where did the liquid and solid waste finally go? The data is there in Pennsylvania, I would have hoped that the GEIS would have said, “here’s where it went the last four years in Pennsylvania, here are the lessons learned about environmental impact, here are the mistakes we’re not going to make. Here’s what we’re proposing to do to either prohibit or mitigate those mistakes. I can’t find it.
And finally, citations and enforcements. Again DEP has all that information, DEC should have gotten the information, should have published it in the GEIS so that we can judge what level of regulatory observance, control, and enforcement we’re going to need for the two thousand wells per year that GEIS is predicting will be drilled in New York state.
So, I don’t want to be overly critical. I’ve only picked on two things. There are a lot of things that the GEIS, current version, does much better than earlier versions. But I picked on these two issues because one is very local. And especially in upstate New York with so many people who run underground sources of drinking water. And we all live in the same climate, so whether the gas is coming out of Pennsylvania or New York it will affect climate change. And I’d like to have an accurate assessment of that coming from our GEIS.
Tony Ingraffea is the Dwight C. Baum Professor of Engineering and Weiss Presidential Teaching Fellow at Cornell. Since 1974 he has conducted R & D in various aspects of oil and gas drilling, cementing, fracking, and pipeline science, engineering and technology.
Transcribed by Adam Singer from http://shaleshockmedia.org/2011/08/01/experts-speak-out-on-revised-dec-guidelines-for-drilling-2/, edited by Adam and Beverly Singer, 9/3/2011
Comments on Preliminary Revised Draft Supplemental Generic L. W. Allstadt For full video presentation see:http://shaleshockmedia.org/2011/08/01/experts-speak-out-on-revised-dec-guidelines-for-drilling-2/ Major Omissions (slide #2) • Cumulative Impacts • No Control of Pace of Drilling • No Integration of Transportation, Socioeconomic, Pipelines, Processing Plants and         Compressor Station Impacts • No REGULATIONS To start with, I’m going to talk about what I didn’t find in the GEIS. After reading through it, it occurred to me that there are several things missing. I’m going to go through these in more detail but— nothing on cumulative impacts, no control of the pace of drilling, and no integration of a lot of other things with recommendations, and NO REGULATIONS. No review of Cumulative Impacts (slide #3) • SGEIS lists numerous impacts from drilling and related activities. -       – Mitigation proposals usually relate to a single occurrence of an individual impact • No discussion of long term cumulative impacts of repeating an individual impact over many         years • No discussion of how all of these impacts interact with each other, either immediately or over      many years Cumulative impacts, this is a very hard thing to do, we don’t have a whole lot of experience with high volume fracking, a few years at most . So it’s almost impossible to do it, but it’s supposed to be done. What the GEIS does is basically propose mitigation that usually relates to a single occurrence of an individual impact. It doesn’t think about what a mitigation would be if you had to deal with multiple versions of that same impact or with multiple versions of different impacts. There’s no discussion of how all of these individual impacts interact with each other either immediately or over a long period of time. So, I think that’s a major failing. Incomplete Review (slide #4) • Draft SGEIS was issued with no review of: - Transportation Infrastructure Impacts 2.4.12 - Socioeconomic Impacts 2.4.13 - Visual Impacts 6.8 - Noise 6.9 - Roads 6.10 - Community Character 6.11 - Pipeline, Gas Processing Plants and Compression Station Impacts (PSC jurisdiction) The review is really incomplete. (The small numbers are citations in the SGEIS document, if you ever want to go look at the individual pieces), but what isn’t in there right now is the transportation infrastructure impact, socioeconomic impacts, visual, noise, roads, community character. And there’s nothing related to pipelines, gas processing plants or compression stations which are all under the PSC (Public Service Commission) jurisdiction. So to do a thorough job they would have had to have known what these impacts were before they could design appropriate mitigation measures, and they simply don’t have it because it’s not in there yet. Each Well Treated as Separate Project (slide #5) • DEC treats each well as a separate permit without regard to other permits or projects in the        area          appendix 5 & 6 • Permitting several wells, time-staged to reduce overlap with other wells or related facilities,         could significantly reduce intensity of local impacts. • DEC rejects regulating the pace of drilling         9.2 -       – Will only limit pace to DEC capabilities    9.2.4 -       – Does not consider what localities can absorb The DEC treats each well as a separate permit and it doesn’t consider what else is going on. So a well or a well pad extended from that well is all it considers. You could significantly mitigate the intensity of some of these impacts if you time staged when they were occurring and where they were occurring. And basically the DEC rejects the whole idea of regulating the pace of drilling. They are taking whatever the industry gives to them, they’re not trying to control it. And they say as much in the document. They really don’t consider what a local community can absorb. So, they will just look at the well permit coming in, and permit it, and the next one coming in, not considering that they are piling a hundred wells on one community, and maybe a compression station, and then a treatment plant and a lot of pipelines all at the same time. REGULATIONS (slide #6) There are no regulations. This document is not the regulations. They propose to start permitting as soon as the GEIS is issued, and then do the regulations. The 1992 GEIS was published in a similar way and we still don’t have the regulations, so waiting for the regulations doesn’t make a whole lot of sense, they should be in place before the permits are issued. Frack Fluids (slide #7) Material Data Sheets required   8.2.1.8 Better control at well pad Alternative fracking (less risk) additives to be used Now let’s talk about some of the specifics. Fracking fluids, some good things, some not so good. They are requiring Material Data Sheets. They have quite a bit better control of the fluids at the well pads, they have to be in closed containers within a secondary containment area. They also require the drillers to consider alternative fracking fluids, less risky fracking fluids, unless they are not equally effective or feasible in the determination of the DEC. And the DEC really needs to push this harder. There are better fluids out there. There will be over time. But they won’t be there unless the DEC and other state governments push. Flow-Back Treatment (slide #8) Treatment of flow back water. One good thing is that they require the driller to have a place to take the flow back water before they will issue a permit. And in some cases they will require a backup location. A significant problem that they go into in some detail, is that municipal plants don’t have enough capacity. They estimated that a typical plant that has some spare capacity, might be able to handle the treatment from one well pad. Now we’ve got something like thirty of these plants around, thirty plants will nowhere near cover the wells. They talk about private plants but nothing in specifics. Somebody would have to build them and they’re not there yet. Injection wells require a SEQRA process, full blown evaluation, and they don’t go into detail. But there haven’t been any approved wells in a long time in New York State. They are allowing that material to be transported as commercial waste. These same chemicals come to the site as hazardous waste, go down into the ground and come up with additional noxious things, and then they get transported off as commercial waste. That shouldn’t be done that way, they should be treated as hazardous waste. They have proposed a transportation tracking system which sounded good in the initial announcement, but it’s self reporting. Open Pits (slide #9) Open pits. This was a big concern last go around. They have done the right thing on part of it. They’ve prohibited open pits for frack fluids and flow back fluids. Those have to be in closed containers and secondary containment. They allow open pits for fresh water that would go into fracking, which is not a particular problem. But they still allow open pits for some drilling waste. Drilling waste is what comes up in the drilling process. It actually contains chemicals that are similar to the fracking chemicals, plus the cuttings from the drill bore. And those really ought to be in contained systems, closed systems, and why they let this one go through I don’t know. It simply should be prohibited. The industry usually does it in closed systems. They can do it, there’s no reason it shouldn’t be required. Municipal Water Source Setbacks (slide #10) You’ve probably heard about New York city-Syracuse versus the rest of the state. You have to actually think about what those distances mean. For New York city you start at the edge of the reservoir, go to the top of the watershed and add four thousand feet. For everybody else in a municipal system that draws from lakes or reservoirs, you get two thousand feet from the reservoir but only five hundred feet from any tributary stream feeding that lake or reservoir, and only five hundred feet from an aquifer that would feed that reservoir. So in effect you really only get about five hundred feet. The rationale is that Syracuse and New York city have unfiltered systems. The problem with that rationale is that the chemicals are dissolved and are going to go through any filter anyhow. So the rest of the state is not protected by the filters that they’re using to justify New York and Syracuse. Other Water Source Setbacks (slide #11)
Environmental Impact
Statement
July 25, 2011
For Power Point Slides see: http://www.tcgasmap.org/media/Allstadt%20Slides%207-25-11.pdf
| • Municipal wells 7.1.12.1 | 2,000 ft * |
| • Personal wells 7.1.12.1 | 500 |
| • Livestock wells | ? |
| • Primary Aquifers 1.8 | 2,000 ** |
| • Principal Aquifers 1.8 | 500 ** |
can be reduced after * 3 years
** 2 years
A few of the other setbacks distances you saw on the map earlier, two thousand feet from municipal wells. Personal wells five hundred feet. No mention about livestock or agricultural wells that I could find. Primary aquifers we talked about earlier, but the municipal wells and the aquifers will be reviewed and those distances could be reduced in future years.
Multi-well Pads (slide #12)
- • Far less surface disruption
- • Easier to manage and monitor
- • Industry moving in this direction
- • DEC should give priority over singles
– Establish greater setbacks from homes due to longer construction period.
5.1.4.2
Multi-well pads. This is one of the things that they somewhat push in the documents. I think they should push them farther. It’s far less surface destruction when you have multiple wells on one pad rather than a lot of them spread around. The industry is moving in that direction and I think the DEC should give priority for multiple well pads over singles, and if they do it, when they do it, they should probably put some greater setbacks because the intensity in that one well pad is going to go on for a period of time, a longer period of time than in a single well.
DEC Staff (slide #13)
- • Current staffing cannot possibly handle increased work load
- -Â Â Â Â Â Â Â DEC says permits will be limited to what staff can handle 9.2
- • Alternative – Limit by law the number of wells that each DEC inspector can handle
The current staffing, and you’ve all heard the ridiculously low numbers, they can’t possibly handle a lot of additional workload. The DEC says that they will limit permits to what the staff can handle. You know that when senator x-y-z calls up and says, “my local driller needs this, the towns need the revenue, we’ve got to get a permit,†somebody’s going to bend in that office and the permits are going to be issued beyond what they can handle. If that’s how they are going to do it, then we ought to limit by law how many permits or wells the individual people at the DEC can handle.
License Drillers and Sub-Contractors (slide #14)
- • DEC does not Require
- -Â Â Â Â Â Â Â Experience for company or key personnel
- -Â Â Â Â Â Â Â History of safe operations
- • Water well drillers need to pass test.
- – Why not gas drill rig operators and frackers?
This is another thing that’s missing. There are few cases where they require certification. The only place that they require certification is during the fracking period when there has to be a certified well control specialist on site. But there’s no requirement for any checking of the background skills, safety records, of the people that are running the drill rigs or running the fracking. The guy who comes and drills your water well has to pass a test. These guys don’t.
Performance Bonds (slide #15)
- • Not mentioned in GEIS
- • Driller should not be able walk away from problems
- • Multimillion dollar bond on each well until plugged and abandoned
- – Currently $5,000 max per well - http://www.dec.ny.gov/energy/1622.html
Performance bonds, it’s not mentioned in the GEIS, but if you go to the website (http://www.dec.ny.gov/energy/1622.html), you’ll find out that if you want to drill a well you have to put up at most a five thousand dollar bond. That’s currently, and there is no mention of changing that. It really should be a really significant bond. It does two things, 1) it makes the driller pay more attention, t2) the bonding companies that supply the bonds will pay a lot more attention to who they give the bonds to.
Relative Safety (slide #16)
- • IDEAL SAFETY LEVEL
- • BEST COMPANIES
- • CURRENT REGULATIONS
- • WORST COMPANIES
- • CURRENT ENFORCEMENT
This is a chart I’ve used before, an ideal level of safety at the top. The best companies have moved up, in my opinion, a few notches in the couple of years that we’ve been working on this. They’re moving toward closed systems, they’re moving toward reprocessing some of the waste, things like that. They are actually looking for and using some better fracking fluids, or less bad fracking fluids. The current regulations have probably moved up a notch, I’ll give the DEC a little credit for moving them up a notch, but nowhere near enough. The worst companies, you may have seen some reports today of a company that was sited in Pennsylvania. The worst companies are flaunting the regulations, and they’re flaunting them in part because the enforcement is week. You can’t make all of this work unless you get the regulations up and get the enforcement up.
Lou Allstadt spent 31 years working in the oil and gas industry. He was Executive Vice President of Mobil Oil Corporation responsible for exploration and production (drilling for oil and gas) in the US, Canada and Latin America. Previously, he headed Mobil’s worldwide supply, trading and transportation operations. Former Member of Board of US Oil and Gas Association.
Transcribed by Adam Singer from http://shaleshockmedia.org/2011/08/01/experts-speak-out-on-revised-dec-guidelines-for-drilling-2/, edited by Adam and Beverly Singer, 9/3/2011
Local Control & the SGEIS 2.0 Ithaca, NY For full video presentation see: http://shaleshockmedia.org/2011/08/01/experts-speak-out-on-revised-dec-guidelines-for-drilling-2/ (accessed 9/3/2001) For Power Point Slides see:   http://www.tcgasmap.org/media/Slottje%20Slides%207-25-11.pdf (accessed 9/3/2011) I am here to talk about two things, 1) what does the SGEIS say about local control, and 2) some background on commenting– reasons to comment, and how to comment. Regulating the Oil & Gas Industry ECL 23-0303(2) provides that the State’s oil, gas and solution mining regulatory program “supersede[s] all local laws or ordinances relating to the regulation of the oil, gas and solution mining industries; but shall not supersede local government jurisdiction over local roads or the rights of local governments under the real property tax law.†So, the first question is, where are we on local regulation of the industry? There’s presently, in the environmental conservation statute, a limitation on the ability of local municipalities to regulate the industry. And we agree, everyone agrees, that’s what the statute says. What the question has been is, in a “Bill Clinton†way, what’s a regulation? Local Laws Municipal Home Rule Law #10(11), (12) vests towns with the police power to enact laws relating to the “protection and enhancement of its physical and visual environment†and for the “protection, order, conduct, safety, health and well-being of persons or property therein.†The answer there has been that a regulation is something that relates to the operational process of the gas drilling company, versus local land use and other police power laws. The governments in the state of New York do have the power under the municipal home rule law to enact laws that relate to the protection and enhancement of the physical and visual environment, for zoning purposes, to reduce traffic and the like. So, the question is, are these local laws really a regulation of the industry? Local Land Use Laws “Turning first to the statute’s plain meaning and reading the language in its natural and most obvious sense, we cannot interpret the phrase ‘local laws relating to the extractive industry’ as including the Town of Carroll Zoning Ordinance.†In the Matter of Frew Run Gravel Products, Inc. v. Town of Carroll, 71 N.Y.2d 126 (1987) And in fact the courts in New York have historically found that land use laws of general applicability address that land use, environmental comprehensive planning, things like that are not regulations of an industry. They’ll have an incidental impact on that industry. If you have regular zoning laws that say, “not in this neighborhood,†or “not here, not there, perhaps not anywhere,†that those are not regulations of the industry. In this instance you are not trying to tell, whether it’s a Seven-Eleven on the hours they can operate or how somebody has to be licensed for a group home. And the closest analogue to the drilling statute is the mining statute which now reads differently, it’s been amended. The way it originally read it very closely tracked what the environmental conservation language of the oil and gas context looks like. The court of appeals, which in New York is the highest court, specifically said that local laws, in that case relating to the extractive industry, did not include zoning. So based on this interpretation that you can have local land use laws, police power laws, laws that are not addressed at trying to regulate hydrofracking in particular (like how deep someone can drill or with what sort of equipment), but instead you have a general prohibition as you do in any town that at least has zoning. For example, there’s a number of things in Ithaca that you can’t build, I can’t build, let alone have the Industry build. If I want to put a shed in my backyard I have to go ask somebody about it. So based on [land use laws] that are not trying to regulate hydrofracking in particular, there’s been a lot of communities, across the state, communities that are working on prohibitions, bans, moratoriums and the like. (You saw these areas from Karen’s maps earlier.) And this has caught the attention of the DEC. Treatment in the SGEIS 2.0 “The Department proposes that applicants be required to compare the proposed well pad location to local land use laws, regulations, plans and policies to determine whether the proposed activity is consistent with such laws… If the applicant or the potentially impacted local government informs the Department that it believes a conflict exists, the Department would request additional information with regard to this issue so it can consider whether significant adverse impacts relating to land use and zoning would result from permit issuance.†1.7.5 So they have come out and originally in the first version of this, the beta version, they did not address local government power at all. In fact they said, “we are not going to even tell you when we issue a permit. It’s totally up to you to figure this out, and we have no interest in even communicating with our local governments.†So here they’ve now said, “we’re going to require, at least on your permit application that you look to see whether or not your permit is consistent with the local land use planning, and you have to tell us if it’s not, and we’re at least going to pay some attention to try and come up with some mitigation factors. In fact in other cases, again in the mining context, and I think in injection well context, the courts have told the DEC that they can’t get involved in local permitting control. So there have been cases where the DEC did not want to issue a permit based on a conflict with local laws and the person seeking the permit has gone to court and the courts have said, “you issue your permits based on your laws and the state laws and let the other people fight it out with the town about zoning. And that’s generally the rule in New York. So the DEC, presently, really doesn’t have the power to refuse to issue a gas drilling permit on a conflict with local laws. So in our opinion this is really the best that the DEC could say, is that we’re going to look at it and we’ll try to come up with some impacts. Local Bans are Considered a Mitigation Measure “Requirement to consult local land use laws and planning documents and additional analysis and mitigation required to address potential conflicts (Note: in addition to increasing costs, this requirement could also suppress activity in areas where local communities enact bans and court decisions are required before development may proceed)â€. 9.2.4 They’ve gone on to say that they understand that these local bans are going to result in court decisions and legal action for this to become ultimately clear what the home rule powers are of the towns. So our local bans have now reached the status of mitigation measures. They assume that the timing and the issuance of permits, at least in some communities, will be slowed by fights over these local bans. Some people had been concerned about the DEC getting in the middle of this fight. And it seems relatively clear that they’re not planning to get in the middle of it, at least presently. They are going to leave it to the drilling companies and the communities to fight this one out. Lead Agency “In terms of SEQRA compliance, the Department considers itself the appropriate lead agency for purposes of SEQRA review involving such applications inasmuch as the Department is principally responsible under ECL 23-0303(2) for regulating oil and gas development activities with local government jurisdiction being limited to local roads and the rights of local governments under the Real Property Tax Law.†3.2 So, I then went through, and most of this is for purposes of people looking at this later, but I’ve gone through and put in here every sort of quote about the local governments’ roles that are presently in the SGEIS and the section numbers from the SGEIS. So they are continuing to plan on being the lead agency, because as the statute says they’re the ones that are responsible for regulating the industry. Local Planning Documents “The EAF Addendum will require the applicant to identify whether the location of the well pad, or any other activity under the jurisdiction of the Department, conflicts with local land use laws or regulations. The applicant will also be required to identify whether the well pad is located in an area where the affected community has adopted a comprehensive plan or other local land use plan and whether the proposed action is consistent with such plan(s).†3.2.3.9 They are going to require the identification of the location of the well pad and other information in this EAF about the local zoning or comprehensive plan issues. Waste Disposal “In New York State the NORM (Naturally Occurring Radioactive Materials) in cuttings is not precluded by regulation from disposal in a solid waste landfill, though well operators should consult with the operators of any landfills they are considering using for disposal regarding the acceptance of Marcellus drill cuttings by that facility.†5.13.1 And some of the other things that we’ve been suggesting to communities that they look at when they consider bans on gas drilling type activities, heavy industrial activities, is the issue of waste disposal. And in the new version of the SGEIS they again note that there is the ability of persons to dispose of these drill cuttings in regular land fills and there are cases in New York presently where these are being beneficially distributed on farm lands as fertilizer and soil and the like, so the DEC continues to not be involved in that, but that is an area where local governments can prohibit these because there are powers under the ECL that give municipalities the right to regulate and prohibit solid waste. So, as long as they are not calling this hazardous waste, and not treating it in a more restrictive sense, communities actually have the power to make it illegal to dispose of these kinds of wastes in their town. Wastewater Treatment “Privately owned facilities built specifically for the reuse or treatment and disposal of industrial wastewater from [HVHF] operate in other states, including [PA]. Similar facilities that might be constructed in [NY] would require a SPDES (State Pollutant Discharge Elimination System) permit if the operator of the facility intends to discharge treated effluent to surface or groundwater. …properly maintained and regulated systems, along with waste tracking and SPDES permitting control measures…†would mitigate the potential for adverse environmental impacts. 6.1.8.2 So, similarly there’s the concern, there was talk before about what were we going to do with all this waste water, that private facilities were going to have to be built for this. Presently the SGEIS considers that a speedy storm water permit and the waste tracking is really going to mitigate any problems that one might have, having a waste water transfer treatment site located in your town. The DEC is not regulating these facilities, that leaves them open for local regulation and prohibition. Local Governments “ECL 23-0303(2) provides that the Department’s Oil, Gas and Solution Mining Law supersedes all local laws relating to the regulation of oil and gas development except for local government jurisdiction over local roads or the right to collect real property taxes. Likewise, ECL #23-1901(2) provides for supersedure of all other laws enacted by local governments or agencies concerning the imposition of a fee on activities regulated by Article 23.â€Â 8.1. Some communities might ask, can we impose some kind of permitting fee, can we require bonds, is there anything we can do to try and get some money up front from these gas drilling companies? And the answer to that is no. The environmental conservation law specifically prohibits communities from imposing permitting fees or bonds. This part of the SGEIS cites that requirement. Local Government Notification “The Department will notify local governments of all applications for [HVHF] in the locality, using a continuously updated database of local government officials and an electronic notification system that will both be developed for this purpose.â€Â 8.1.1.3 So this is the part of the SGEIS that requires local government notification, although it’s only of an application, and as we’ve seen there are presently applications that are stacked up at the DEC. So they’re not agreeing to notify you when the well permit is issued, when fracking is going to commence, but they are going to at least notify communities when an application comes in. Conclusion So the upshot of all of that is that the DEC is obviously aware of the local ban activities– that has gotten their attention. They are continuing to to hold onto their original position, which is correct, that localities cannot regulate industry. And they leave open and support the idea that communities do have the ability, or are not prohibited in the DEC’s interpretation, to institute local bans. So that’s sort of the upshot of where the local government angle plays out in the SGEIS. So, a lot better than it was before. Personally, I’d like to see it be a much stronger statement, but legally this is as strong as the DEC can really come out on this. So we were very happy with this teeny component of the SGEIS. There are numerous, numerous problems with it and one could comment on the SGEIS without even having really read it, just going through the table of contents on all the things that aren’t in it. So you could avoid reading it altogether and just come up with things that aren’t in it. Who Should Comment Who should comment? Everybody. Individuals, I think it would be great if kids drew pictures and sent them into the DEC. Business owners trying to get the National Chamber of Commerce, don’t get me started, but local chambers of commerce there might be some ability, there are some counties that have convinced, uh…. one they’ve gotten them chamber to go the right way. So, all sorts of organizational type groups, we’re blessed here in the Ithaca area to have our fair share of academics, that’s terrific. Professionals, municipalities, literally there isn’t anyone who shouldn’t be commenting on this. Municipal Comments Get your town board, planning board, and other boards (such as conservation) started now – the time frames to comment are short and town boards are very busy with many projects. On the idea of municipal comments, the deadlines here are going to be short, we still only even have half the document, but getting a municipality to have the time to send in official comments, it really would be advisable to start talking to your town board now about that. Making some suggestions, doing some of the work with providing samples of other comments and the like, because they all have a ton of stuff to do particularly when we are haranguing them to pass bans at the same time. Purpose/Goal of Commenting So, what’s the point in commenting? I did have to put up here, attempt to improve the document, but that’s, at least for my money, not the primary reason for commenting on this document. The first is to send an avalanche of comments to more than surpass the fourteen thousand comments the last time, to send back a resounding message that while there may be some small improvements that is not nearly enough. That there’s just a groundswell of community opposition to this document. Also to try to drive local news coverage. To create media events that get coverage that highlight, for people, the problems with unconventional gas drilling. We all had been working on this months, years, some people will say they’ve been fighting this since the Vietnam war. So it’s all the same thing. But there are still people that have no idea what we’re talking about and what we’re upset about, and getting stories in the paper about this are a good way to do that. And then related to the groundswell of community opposition is just slowing down the process. The DEC has to read comments, they have to categorize them, they have to, even if they’re not substantive they have to put them in a pile and all that takes time. And they don’t have a lot of staff, and time is our friend. It seems like every day, at least every week, you can read about some new study that’s come out. Some new horrible thing that’s happened somewhere else which is terrible, but to the extent that we have more information, more things that we can point to as reasons why they shouldn’t happen in New York, that’s really to our benefit. Purpose Drives the Content Statement of Dissatisfaction News Coverage Improve the Document So the purpose of your comments really drives the content. So if you’re simply trying to send an emotional message of dissatisfaction, you don’t need to knock yourself out reading the SGEIS, you can just send in a comment that you really don’t like it. That’s not a great comment, but it counts as a comment, and again it’s something, it’s a political statement. Again, if you are trying to get news coverage, letters to the editor, things like that sort of focusing, that’s going to be a different sort of comment. And if you are trying to really improve the document, and on the idea of slowing things down because they have to read reports and the like, then substance is important, but clearly not everyone is going to have the time, or the expertise to read a thousand page document and pick it apart, so that’s sort of an idea of how to consider what sort of comment you would like to make. Substantive Comments Content of SGEIS Process of Preparing SGEIS It’s important in making substantive comments to talk about the things that you support, in addition to the things that you don’t like, because just as we’re trying to change certain things we don’t like, industry and other people are going to be writing in with problems that they see with things that we like. So you want to make sure that if there are things that you like in there that we indicate some support for those. As a legal matter, if you are referring to the reports and the like, you have to attach the report in order for the government to consider it as a substantive part of your comment, if you simply make reference to it, they don’t have to go out and find it. If it’s something that they’ve already cited, like the Duke study, or it’s a statute or something that they have to take notice of, that’s one thing, but for reports, you really have to send them an actual copy of the report, don’t expect them to go looking for it. And then there are also comments that are geared towards the whole process, what the length of the comment period should be, that there should be public hearings, that certain people have been excluded, that industry’s voice is resonant throughout the document, but no one’s really consulting with other groups and the like. Pick a Specific Area So those are some ideas there. If you do want to make a substantive comment, you certainly don’t need to read the whole thing, you can pick a specific area or one of these myriad of things that don’t even get addressed in the SGEIS, so no need to read it. Writing Comments In writing your comments you want to try to summarize your main points, be very specific in what you want done. It’s helpful to include revised language. One of the groups here that’s been working, particularly on the mortgage type impacts from this, the DEC came back and said, “what should this look like, help us out here.†They need help, so on areas where you really do want it re-written, and that’s sort of your particular interest, including definitive suggestions is very helpful. Highlighting examples, simply saying, “I’m unhappy about this,†while a good political statement, is not as strong as saying, “this is what’s actually happened in another community, I say I’m concerned about acts, here’s an example of where acts happened, how does the SGEIS address this, I don’t think it does. Categorize your comments because they’re putting them in categories, so if you’re organized, you have bullet points, you can make sure that your comments get put in as many different piles. If your comments are not clear and you are rambling on about all these different things, they are just going to pick one comment and put it in that pile, they’re not going to read it for the substance of your other areas. So if you label and organize your comments, you can get them considered in more than one category. And again, active sentences, not using the passive voice, things like, “sharp writing†is very helpful, these people are reading a bunch of stuff, so if you make it a little more engaging, there’s a bit more chance that someone might pay some attention. Examples of Comments Many of the comments prepared for the dSGEIS 1.0 are available on For examples of comments, if you go to tcgasmap.org, while you are picking up presentations from tonight, you can look at comments from the last round. They collected a whole bunch of good ones, so some of those would be great examples on sort of what comments look like, what did people address, you could even make your own little project, did these comments get addressed in the revision, if some of those appeal to you. And then where to send the comments. Obviously the DEC, but also the New York Department of Health, governor Cuomo’s office and the Attorney General’s office are great places to send the comments too. Where to Send Comments DEC – Department of Environmental Conservation (send comments to DEC after official comment period starts) Correct Email address will be announced when comment period officially starts NY DOH – State Department of Health Governor Cuomo’s Office Attorney General Schneiderman Assembly Person Senator What Format Postal/Snail Mail is best Email for DEC because unlike the Governor, DOH, and AG – the DEC has to read your comment For the DEC, sending comments in email format is fine, because they have to read your comments. But if you are trying to send a message to the governor’s office, the AG’s office (attorney general), the department of health, an email is easy enough to delete. Packages of mail coming to them on this topic helps make the political statement. Transcribed by Adam Singer from http://shaleshockmedia.org/2011/08/01/experts-speak-out-on-revised-dec-guidelines-for-drilling-2/; edited by Adam and Beverly Singer, 9/3/2011
Community Environmental Defense Council, Inc.
CedcLaw.org
July 25, 2011
Attn: Dr. Howard Freed, Director
Center for Environmental Health
New York State Department of Health
Flanigan Square, 547 River Street
Troy, NY 12180-2216
Honorable Andrew M. Cuomo
Governor of New York State
NYS State Capitol Building
Albany, NY 12224
Office of the Attorney General
The Capitol
Albany, NY 12224-034