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HVHF Comments Package

HVHF Comments Package

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Published by IOGANY
New York’s leading industry trade association delivered strong comments to state regulators, indicating rules for oil and gas exploration would be harmful to small businesses and discourage industry investment.
New York’s leading industry trade association delivered strong comments to state regulators, indicating rules for oil and gas exploration would be harmful to small businesses and discourage industry investment.

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Published by: IOGANY on Jan 24, 2013
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12/30/2013

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38 Lake Street • Hamburg, New York 14075 • Phone (716) 202-4688 • Fax (716) 202-4689
January 11, 2013New York State Department of Environmental Conservation625 BroadwayAlbany, NY 12233-6510Subject: Draft HVHF Regulations CommentsDear Sir/Madam:Enclosed please find comments from the Independent Oil and Gas Association of New York (IOGA NewYork) relative to the Revised Proposed Regulations proposing amendments to 6 NYCRR Parts 52 and 190,Parts 550 through 556 and 560, and parts 750.1 and 750.3. Thank you for the opportunity to provide thesecomments.In reviewing these comments, you will find that IOGA New York has been forced to take a moreadversarial position with these proposals. Notwithstanding our excellent working relationship over theyears and all the efforts that have been made by industry to educate Department personnel regardingmodern natural gas drilling techniques and best management practices to minimize potential adverseenvironmental impacts, it appears that most of our comments on the previous proposals have not beengiven any credibility and that the Department has erroneously come to the conclusion that the shaleresources in New York State will only be developed by large operators. This is truly unfortunate. Becauseof the failure of the Department to consider our comments that were submitted on January 11, 2012, we areresubmitting those comments. In addition, we are enclosing detailed comments on the Revised ProposedRegulations, together with suggested revisions to certain sections of the Revised Proposed Regulations thatwill ameliorate the adverse consequences of these proposals, without compromising environmental quality.Finally, we are also submitting additional letters from companies that qualify as small businesses under theState Administrative Procedure Act (“SAPA”) to reinforce the need for the Department to provideflexibility with these regulatory proposals and to meet the requirements of SAPA to reduce burdens onsmall businesses.As you are well aware, IOGA New York supports a high environmental bar, but the bar must be attainableby industry in order to have the valuable shale resources in this state properly developed. These regulationsare replete with requirements that have no foundation in science or in the long history of modern drilling inNew York State without adverse environmental consequences. In addition, in a number of instances, theDepartment has exceeded its regulatory authority, again with no scientific or historical basis for theoffensive proposals. For example, one of the most glaring issues is the proposal by the Department torequire a 300-foot setback from wetlands regulated by the United States Army Corps of Engineers. As youare well aware, the jurisdiction of the Department over wetlands is limited by Environmental ConservationLaw Article 24, wherein the Legislature made the determination that only a 100-foot buffer zone is requiredfrom state jurisdictional wetlands. By attempting to regulate federal wetlands and also to implement abuffer requirement that is three times the statutory buffer for state wetlands, the Department has proposed arequirement that is not only illegal, but, in conjunction with the many other proposed setbacks andprohibitions, will make it extremely difficult, if not impossible, to site a well pad in New York State.
 
Independent Oil & Gas Association Comment LetterJanuary 10, 2013Page 2We welcome the opportunity to discuss any of these issues with you and your staff. We urge you to modifythese regulatory proposals in a manner that is lawful, attainable, protective of the environment andconsistent with the statutory mandate that the Department promote the development of oil and gasresources in New York State and protect the correlative rights of landowners to do the same.Thank you for your consideration of our comments and our proposed regulatory revisions.Sincerely,Independent Oil and Gas Association of New York,Brad Gill Executive DirectorEnclosurescc: Andrew M. Cuomo, GovernorJoseph Martens, CommissionerMarc Gerstman, Executive Deputy CommissionerEugene Leff 
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Deputy Commissioner, Remediation and Materials ManagementSteven Russo, Esq., General CounselBradley J. Field, Director, Division of Mineral ResourcesThomas S. West, Esq., The West Firm, PLLCJames J. Carr, Hinman Straub PC
4811-8179-7138, v. 1
 
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Comments on the New York State Department of Environmental Conservation’sRevised Proposed Regulations for High-Volume Hydraulic FracturingSubmitted by the Independent Oil and Gas Association of New YorkJanuary 11, 2013
The Independent Oil and Gas Association of New York (“IOGA”) respectfully submitsthe following comments regarding the Revised Proposed Express Terms 6 NYCRR Parts 52 and190 Use of State Lands Administered by the Division of Fish, Wildlife and Marine Resourcesand Use of State Lands; Revised Proposed Express Terms 6 NYCRR Parts 550 through 556 and560 Subchapter B: Mineral Resources; and Revised Proposed Express Terms 6 NYCRR Parts750.1 and 750-3 Obtaining a SPDES Permit and High Volume Hydro Fracturing (HVHF)(hereinafter the “Revised Proposed Regulations”), as well as the related documents issuedpursuant to the State Administrative Procedure Act (“SAPA”). As part of these comments,IOGA has identified areas where the Revised Proposed Regulations and the related SAPAdocuments fail to comply with legal requirements, thus rendering the Revised ProposedRegulations legally defective and subject to challenge. In addition to the comments that follow,Exhibit A is IOGA’s proposal on how some of the Revised Proposed Regulations should bemodified, which will bring the Revised Proposed Regulations into compliance with law andimprove the overall quality of the Revised Proposed Regulations without compromisingenvironmental standards.Initially, IOGA would like to commend Department Staff’s continuing efforts regardingthese regulatory proposals, including the need to respond to an unprecedented number of publiccomments. Although we recognize that the task at hand has been difficult for the Department, inthe final analysis, the overarching concern of industry remains the failure of the Department toinclude provisions in the regulations that will allow Department Staff to implement theregulations in a manner that protects the environment to the maximum extent practicable, butdoes so in a manner that provides the necessary flexibility to allow the orderly development of the shale resources in New York State consistent with the mandates of New York law.IOGA previously submitted comments regarding the previously Proposed Express Terms6 NYCRR Parts 52 and 190 Use of State Lands Administered by the Division of Fish, Wildlifeand Marine Resources and Use of State Lands; Proposed Express Terms 6 NYCRR Parts 550through 556 and 560 Subchapter B: Mineral Resources; and Proposed Express Terms 6 NYCRRParts 750.1 and 750.3 Obtaining a SPDES Permit and High-Volume Hydro Fracturing (HVHF)that were put out for public comment on September 7, 2011 (hereinafter the “2011 ProposedRegulations”). In IOGA’s 2012 Comments, which were submitted on or about January 11, 2012,and are fully incorporated by reference herein (the “2012 Comments”), IOGA identified many of the same issues that are identified below, including the need for the Department to provideregulatory flexibility in the final standards such that the Department can meet its balancingobligations under the State Environmental Quality Review Act and fulfill the mandates of Environmental Conservation Law (“ECL”) § 23-0301 to promote the greater development of theoil and gas resources in New York State and to protect the correlative rights of landowners to

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