NORTHRUP

December 18, 2012 Attn: Draft HVHF Regulations Comments New York State Department of Environmental Conservation 625 Broadway Albany, NY 12233-6510 Re: The Proposed Regulations do not follow ECL 23 Summary The proposed regulations do not follow the intent of ECL 23, thereby jeopardizing the environment and the rights of landowners and the general public, for the purpose of promoting the oil and gas industry. The Proposed Regulations Misstate ECL 23 The proposed regulations alter the wording of the underlying statute, ECL 23, by dropping the task of regulating the industry and substituting foster, encourage and promote fracking. In this, the DEC misconstrues its role and misinterprets its responsibilities. Indeed, it alters its mission to fit the goals of the oil and gas industry to the clear detriment of the environment, landowners and the general public. Here is the wording of the ECL statute on the DECs website:

Oil, Gas and Solution Mining Law Declaration of Policy ECL Article 231 It is hereby declared to be in the public interest: to regulate the development, production and

http://www.dec.ny.gov/energy/26498.html

utilization of natural resources of oil and gas in this state in such a manner as will prevent waste; to authorize and to provide for the operation and development of oil and gas properties in such a manner that a greater ultimate recovery of oil and gas may be had, and that the correlative rights of all owners and the rights of all persons including landowners and the general public may be fully protected, and to provide in similar fashion for the underground storage of gas, the solution mining of salt and geothermal, stratigraphic and brine disposal wells.

Here is how the DEC describes the objectives of ECL 23.2

Mineral Resources:

The legislative objectives of ECL Article 23, found in Section 23-0301, recognize that it is in the public interest to regulate the development, production and utilization of natural resources of oil and gas in this state in such a manner as will prevent waste; to authorize and to provide for the operation and development of oil and gas properties in such a manner that a greater ultimate recovery of oil and gas may be had, and that the correlative rights of all owners and the rights of all persons including landowners and the general public may be fully protected, and to provide in similar fashion for the underground storage of gas, the solution mining of salt and geothermal, stratigraphic and brine disposal wells. This Section provides a general discussion of the existing oil and gas program and describes the legislative objectives of the draft regulations.

But here is how the DEC reinterprets the law and the intent of the law in their proposed fracking rules, dropping the word regulate oil and gas in the statute and substituting it
2

http://www.dec.ny.gov/regulations/87440.html

with fostering, encouragement and promotion of oil and gas, 550.1 (a):

550.1 Policy The Department of Environmental Conservation, having been entrusted with the basic responsibility for administering to and regulating activities relative to the natural resources of oil and gas within the State, does hereby promulgate the following rules and regulations. These have been formulated after consultation with landowners, producers and other interested persons involved and a public hearing relative thereto. The rules have as their objectives:

(a) the fostering, encouragement and promotion of the development, production and utilization of the natural resources of oil and gas in such a manner as will prevent waste;

(c) full protection of the correlative rights of all owners and the rights of all persons, including landowners and the general public;.

Since 1978, the ECL statute has been to regulate not fostering, encouragement and promotion. Why the change in wording ? When it comes to oil and gas, the DEC is acting as a minerals management agency not an environmental agency. In 550.1 (a) the DEC is literally pretending that its primary mission is to foster, encourage and promote fracking by rewording the 1978 law in its proposed regulations.

Note too that the DECs proposed fracking regulations completely ignore the rights of landowners and the general public in 550.1 (c) because the regulations do not respect

or even recognize property lines in any sense.3 Nor do the regulations protect most land uses as required in 550.1 (c) landowners and the general public.4 Nor do they protect the general public from being gassed by an unregulated shale gas industrial infrastructure.5

This rewording of legislative intent underscores the fundamental flaw in New York States approach to oil and gas regulation. The DEC sees itself as an agency for promoting fracking as its first priority but no independent arms length environmental oversight of the industry. 6

The DEC says as much in their mission statement for the new proposed regulations, the proposed regulations really do maximize the environmental costs and costs to the public as the DEC states in its Revised Regulatory Impact Statement:7

3. NEEDS AND BENEFITS (paragraph #6, last sentence)

http://www.scribd.com/doc/117527641/No-Protection-for-Surface-Property-Rights

http://www.scribd.com/doc/116960614/Response-to-Proposed-New-York-Fracking-

Regulations

http://www.scribd.com/doc/117440914/Fracking-Air-Pollution

http://www.scribd.com/doc/100132075/New-York-s-Nonexistent-EnvironmentalAgency
7

http://www.dec.ny.gov/regulations/87440.html

However, the use of HVHF also raises potentially significant adverse impacts to the environment. DEC proposes these regulations as a means to maximize environmental impacts and costs to the public and to maximize the benefits of natural gas extraction.

You might think that maximize impact on the environment and the costs to the public is a typographical error, until you start reading the proposed regulations, which completely ignore property rights and permit the gassing of an unprotected public. And understand that the DEC sees its primary role as promoting oil and gas, no protecting the environment. Or realize that, since there is no state tax on gas production, the costs of repairing state roads, regulating HVHF activities and remediating environmental damage really are a net cost to the taxpayers, maximizing the costs to the public.8

James L Northrup

17 River Street

Cooperstown, NY 13326

http://www.scribd.com/doc/63145742/New-York-State-Gas-Production-Tax