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HVHF Regulations Comments

HVHF Regulations Comments

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Published by Donna Lupardo
My letter to the DEC regarding the proposed regulations for hydrofracking. The DEC's comment period ended on Jan. 11, 2013.
My letter to the DEC regarding the proposed regulations for hydrofracking. The DEC's comment period ended on Jan. 11, 2013.

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Published by: Donna Lupardo on Jan 20, 2013
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01/20/2013

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DONNA A. LUPARDOMember of Assembly123
RD
District
THE ASSEMBLYSTATE OF NEW YORK ALBANY
CHAIRLegislative Commission onScience and TechnologyCOMMITTEESEconomic Development, Job Creation,Commerce and IndustryElection LawEnvironmental ConservationHigher EducationTransportationVeterans’ Affairs
January 11, 2013Attn: Draft HVHF Regulations Comments New York State Department of Environmental Conservation625 BroadwayAlbany, NY 12233I am writing in my capacity as a member of both the NYS Assembly Committee on EnvironmentalConservation and Governor Cuomo’s High-Volume Hydraulic Fracturing Advisory Panel. Pleaseconsider this letter as my formal comment in response to the DEC’s proposed regulations for high-volumehydraulic fracturing.One issue that I have raised repeatedly is the failure of the rdSGEIS to properly address the potentialnegative economic impacts that drilling may have on communities. Although I have been assured that potential negative impacts will be studied and considered before moving forward with this activity, the proposed regulations make numerous references to the flawed economic study contained within therdSGEIS. Any set of regulations adopted by the DEC should address the added costs to state and localgovernments, which will be significant. As you know, I remain deeply concerned about urban impactsgiven the nature of my Assembly district.In addition to the economic issues, there are a number of other concerns I have with the proposedregulations that I would like to see addressed. Those concerns are as follows:
1)Current regulations place caps ($25,000/well; $2 million for all wells in NYS) onthe bonds an owner of a deep well must post to cover plugging and abandoningcosts. The proposed rules would have repealed those caps, but the revised rules(at §551.6) would re-establish the potential for a cap in an amount determined byDEC. Nothing in the revised rules provides any assurance that DEC will set thosecaps in amounts that are sufficient to ensure that resources are available to properly close all of the affected wells.2)Permits required for flaring of wells (burning off gas) and re-fracturing operationshave been dropped in the revised rules. Instead, a driller would only be required(in §556.2) to ask DEC for approval, without any public notice or involvement.
3)
A requirement (which appeared in proposed §750-3.4(b)(1)) that a permitapplicant must certify that it has arranged for waste fluid disposal at a facility withavailable capacity (along with a backup plan) is removed. DEC would now provide that the facility must use the backup facility if it would be “unsafe or impractical” to use the primary disposal option. This increases the likelihood that
 ALBANY OFFICE:
 
Room 557, Legislative Office Building, Albany, New York 12248 • 518-455-5431, FAX 518-455-5693DISTRICT OFFICE:
 
State Office Building, 17
th
Floor, 44 Hawley Street, Binghamton, New York 13901-4416 • 607-723-9047, FAX 607-723-9313E-MAIL:lupardod@assembly.state.ny.us 
 
when it is time to dispose of a well’s wastes there may be no viable disposaloption available.
4)
Throughout the revised rules (
e.g.
, §560.5 – an emergency response plan must bemaintained at the well site by “the owner or operator”), DEC assignsresponsibilities to the
owner or operator” of a well. This may result in conflictsover which party bears responsibility for accidents or spills.
5)
The revised rules (at §750-3.12(e)(1)) delete language that bars on-site recyclingfacilities from discharging to “ground or surface waters” and instead refer toFederal rules that only cover discharges to navigable waters, not groundwater.Particularly since such facilities are not required to obtain a permit, the prohibition against discharging to groundwater must be clear.6)Requirements for site reclamation (restoring a site after the well is plugged to its pre-drilling condition) have been weakened by removing a mandated DECinspection (in revised §560.7(l)) and by language allowing greater use of materials such as crushed stone, concrete and pavement (in revised §750-3.2(b)(16)). Restoration of a site to pre-drilling condition, substantially with nativecover, is important to the surrounding ecosystem.
7)
Various definition and wording changes (
e.g.
, (in revised §750-3.2(b)(15)) couldallow high-volume fracking with propane instead of fracking fluid, withoutmeeting any of the regulatory safeguards for HVHF operations. If DEC intends toallow propane fracking to proceed in the Marcellus Shale, a full environmentalreview should be conducted and appropriate and protective regulations adopted.
8)
Water well and groundwater testing requirements remain inadequate and are far less protective than Colorado’s new regulations for pre- and post-drillinggroundwater sampling(http://cogcc.state.co.us/RR_HF2012/Groundwater/COGCC_APPROVES_PIONEERING_NEW_GROUNDWATER_PROTECTIONS.pdf ). Also, the revisedrules (in §560.5(d)(3)) delete a requirement that water well test results must besent to local health departments. This is counterproductive, since local healthagencies are responsible for assuring the safety of water wells. The State of Ohiohas adopted best management practices for water well testing that require testresults to be sent to the local government upon request9)Setback provisions (revised §560.4(a)) have been strengthened, but are vague andincomplete – it is not clear whether schools or churches are included in theundefined term “places of assembly” and there are still no setbacks from barns or milking sheds.
10)
The proposed
 
rules required the use
 
of the least toxic fracking fluids unless theapplicant documented that alternatives were not “equally effective or feasible.”The revised rules (at §560.3(d)(1)(vii)) allow use of more toxic products where
 ALBANY OFFICE:
 
Room 557, Legislative Office Building, Albany, New York 12248 • 518-455-5431, FAX 518-455-5693DISTRICT OFFICE:
 
State Office Building, 17
th
Floor, 44 Hawley Street, Binghamton, New York 13901-4416 • 607-723-9047, FAX 607-723-9313E-MAIL:lupardod@assembly.state.ny.us 

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