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DEC’s Revised Draft Environmental Review Shows Improvement, But Serious Gaps

On July 8, 2011, Governor Cuomo’s Department of Environmental Conservation (“DEC”) released its preliminary revised draft environmental review on proposed new hydraulic fracturing (“fracking”) (the “Preliminary Revised Draft Supplemental Generic Environmental Impact Statement” or “revised DSGEIS”).  Our initial review shows that the revised DSGEIS is a substantial improvement over the seriously flawed draft version released in September 2009 by the Paterson administration.  However, though Riverkeeper has not had time to adequately review the entire document – like many others, we will be taking our time to do so and relying on the input of highly qualified experts – the there are still some serious gaps.  The following are our preliminary reactions:

 

• Permits Should Come After Regulations. Riverkeeper is encouraged by DEC’s proposal to conduct a rulemaking process that would formalize its Final SGEIS recommendations in legally enforceable regulations.  Unfortunately, DEC has said it would begin processing permit applications for new fracking after the completion of the Final SGEIS, but before regulations are in place.  This is a backwards approach – DEC should process permit applications only after detailed regulations are in place to adequately protect against the environmental, public health and safety risks associated with horizontal drilling and fracking.

 

• Buffers Should Be Measured From Any Fracking Activity. While DEC proposes in the revised DSGEIS to restrict surface drilling in the primary aquifers, public water supply wells, private water wells, and state-owned conservation areas and to prohibit surface drilling and fracking activities in the NYC and Syracuse watersheds, the buffers set forth are insufficient to prevent horizontal drilling underneath these sensitive areas.  It is critical that DEC issue regulations that require buffers to be measured from any gas extraction activity, including the furthest reaches of subsurface horizontal drilling, in order to sufficiently protect our drinking water supplies and state-owned parks, wildlife areas, and forests.

 

• NYC Water Supply Infrastructure Needs Protection. Much of NYC’s water supply infrastructure is west-of-the-Hudson and falls outside of the NYC watershed itself.  Many of the water supply tunnels, the building of which commenced back in the 1940’s, are in desperate need of repair.  Despite this infrastructure’s well-known susceptibility, DEC has proposed only minimal protections – the revised DSGEIS calls for a site-specific review for any well proposed within 1,000-foot wide corridor surrounding a water tunnel or aqueduct.  Riverkeeper fears that these tunnels would be threatened by vibrations and shaking from drilling activities and susceptible to contamination from migrating fracking fluids.  It is crucial that DEC prohibit drilling around any infrastructure that falls outside watershed limits.

 

• Setbacks Should Not Be Waivable. Riverkeeper is encouraged that DEC has proposed to require a 500-foot setback from any private drilling water wells in which drilling would be prohibited.  However, DEC inexplicably would allow individual landowners to waive the 500-foot setback.  The government has a responsibility to ensure clean drinking water for its residents by making this buffer mandatory.

 

• Buffers Should Not Be Open for Reconsideration. Similarly, Riverkeeper is deeply concerned that the prohibition against drilling in and around primary aquifers and public water supply wells would be subject to reconsideration two to three years after the issuance of the first fracking permit in the state.  This seems to leave an open door for drilling in these vulnerable areas.

 

• Principal Aquifers Should Be Off Limits. Principal aquifers are aquifers known to be highly productive or whose geology suggests abundant potential water supply, but which are currently only minimally used as sources of water supply by major municipal systems.  DEC proposes any applications for fracking in or within 500-feet of these areas be subject to site-specific environmental review for two years after the issuance of the final SGEIS.  DEC should protect these critical water resources of the future and make principal aquifers permanently off limits to gas extraction operations.

 

• DEC Should Address Hazardous Fracking Fluids. The revised DSGEIS does not adequately address the treatment of potentially hazardous waste from drilling and fracking operations.  Specifically, it does not tackle the current loophole that allows contaminant-laden, potentially radioactive drilling and fracturing fluids, mud-drilled cuttings, pit liners, flowback water and produced brine to be classified as nonhazardous industrial waste.  As long as this loophole exists, natural gas companies would be able to send hazardous waste materials to POTWs not equipped to handle these wastes.  While DEC proposes a tracking system for solid and liquid wastes generated in connection to fracking, similar to what is required for medical wastes, this system does not go far enough to protect New Yorkers from the serious public health threats associated with hazardous fracking wastes.

 

• Open Pits Should Be Prohibited. Based on industry’s assertion that is unlikely to use open pits or impoundments for storage of wastewaters, DEC is proposing to require a site-specific environmental review prior to permitting any such pits.  These pits should be outright prohibited, especially given industry’s indication that there are other alternatives.

 

• Chemical Alternatives Should Be Required. Riverkeeper is encouraged that DEC proposes to require companies to report its chemical additives used pre- and post-fracking.  This information would be disclosed to the public, unless it is classified by the company as “confidential business information,” better known as “trade secrets.”  DEC would still be privy to this information.  The revised DSGEIS also proposes to add a requirement that industry evaluate the use of alternative fracking fluids that pose less risk to water resources.  While this is a positive development, we urge DEC to go a step further and ban the use of chemicals known to be toxic or carcinogenic.

 

• Public Health Impacts Should Be Evaluated. The revised DSGEIS does not address public health impacts, despite the fact that we have seen fracking-related air pollution and the potential for water contamination have serious effects on people in other parts of the country.

 

• Enforcement Should Be Addressed Before Permitting. DEC has indicated it will only permit as many drilling operations as it has the enforcement capacity to monitor.  DEC has appointed and charged the High-Volume Hydraulic Fracturing Advisory Panel with developing recommendations for funding to ensure the proper oversight, monitoring and enforcement of mitigation measures, including both state and county agencies responsible for drilling activities and reviewing water sampling data.  Their recommendations feasibly might include increasing the fees, penalties, and bonding requirements associated with hydraulic fracturing, which would require legislative action.  The Panel’s recommendations should be in place before any permits are issued to ensure adequate enforcement.

 

• Public Should Have Adequate Time to Comment. Finally, DEC has indicated that it will formally issue the complete revised environmental review in approximately late August, at which time it has said it will provide a 60-day formal public comment period.  This is inadequate.  The agency provided 90 days on the last draft, and this version is even more comprehensive.  At least 120 days is necessary to give the public a full and fair chance to comment.  It is also vital that DEC provide for formal public hearings across affected areas of the state.