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Worst Practices at the DEC

Worst Practices at the DEC

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The NY DEC is not prepared to regulate shale gas industrialization - because it never has been able to adequately regulate any gas drilling.

The NY DEC is not prepared to regulate shale gas industrialization - because it never has been able to adequately regulate any gas drilling.

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Categories:Types, Research, Science
Published by: James "Chip" Northrup on Dec 19, 2011
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09/17/2013

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“Worst Practices”
Failure of the DEC to Regulate Gas Drilling *
New York State’s Department of Environmental Conservation (DEC) is notready to address the challenges of permitting horizontal hydrofracked shalegas wells for a variety of reasons, most of which are well documented: lackof sufficient resources, lack of staff and a lack of regulations. The state isfurther hampered by a lack of resources to address the costs to fund itsregulatory obligations or repair its roads.
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The state’s inability to cope withshale gas industrialization is emblematic of long standing deficiencies atthe Division of Mineral Resources (DMN). Deficiencies that have beenknown for years persist today.
The DEC is not ready to regulate shalegas industrialization
because it has never adequately regulated gasdrilling at all.
The DEC’s programs were reviewed by the Interstate Oil & Gas CompactCommission (IOGCC) in 1994.
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The resulting 55 page report examined indetail how the DEC regulated the oil and gas industry. The DMN is theprinciple division in charge of oil and gas regulations. At the time, the DMNwas headed by Greg Sovas, who has since become a spokesman for thegas industry. The report paints an unflattering picture of the DMN’sregulatory practices and lack of resources. Finding I.10 summarized theDMN’s beleaguered state:
“DMN cannot meet its program responsibilities and administer an effective program under current budgetary conditions. The program is at acrossroads in this regard, because the status quo is not a tolerable long-term condition.” 
The DMN has gone downhill since that time - precipitously in the last 24months due to staffing cuts and resignations. The DEC’s proposedresponse to horizontal hydrofracking shale gas – the dSGEIS - is anembarrassment of junk science
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, voodoo frackonomics
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and political carve-
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* This paper is based largely on an analysis of the IOGCC report by Brian Brock  http://tinyurl.com/frackingroads
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“New York State Review, IOGCC/EPA Programs, September 1994”
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outs
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.The IOGCC review was conducted by a team of six experts from IOGCC,state governments, industry, and an environmental group, with observersfrom the federal government, industry, and another environmental group.First, the DEC answered an extensive questionnaire. Next, DEC staff were interviewed in Saratoga Springs, NY from May 1 to 5. The reviewteam met July 13 to 15 to discuss and prepare the draft report, which wasthen sent to all involved. The team met a final time August 29 toSeptember 1 to consider all comments and prepare the final report.Funding was from the federal Environmental Protection Agency. The fullreport, less some appendices, is available at
.
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Lack of Rules and Regulations
“DMN’s regulations ... largely originated in 1972. In the mid-1980s, DMN began a process to substantially upgrade its regulations through ... theGEIS in July1992. Despite the substantial period of time that has expired since the inception of this effort, revised rules have not been proposed or  promulgated to date [1994].” 
{Page 5}Despite hearings on proposed regulations in the fall of 1997, only a fewwere promulgated. Meaning the DEC still conducts its regulatory functionslargely devoid of 
regulations.
What guidelines it does have are the worst inthe United States.
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Remarkably, former director Sovas claimed the GEISadequate for horizontally fracking shale gas at an Assembly hearing
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. Healleged that the GEIS are regulations, when the IOGCC report noted theyare not:
“In absence of upgraded rules [and regulations], DMN relies substantially upon conditions attached to drilling permits to implement new technical guidance. ... Such permit conditions only apply to new wells and thereforeof limited utility. Enforcement questions may also arise from imposing generally applicable permit conditions without first issuing rules supporting those permitting conditions.” 
{Pages 5 to 6}
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This lack of regulations was twinned at the federal level; for instance theindustry has claimed that the use of diesel fuel in frack fluids was notillegal, despite being banned by statute, because EPA had not written thecorresponding
regulation
(before the EPA was removed from regulatoryoversight in 2005 by the infamous “Halliburton Loophole”).The report noted that, as the state “environmental” agency, none of its oiland gas rules address human health or the environment:
“One of the principal stated missions of the DEC is protection of humanhealth and the environment. However Part 550 of DMN’s rules do not expressly include protection of human health and environment as a goal or  policy directive.” 
{Page 6}As policy, the DMN is required – both by statute (Article 23.0301) andregulation (Part 550.1) – to only (a) “prevent waste”, (b) maximize “ultimaterecovery”, and (c) fully protect “the correlative rights of all owners” –
nothing about the environment 
. Since the DEC has been remiss inprotecting the rights of persons impacted by drilling, they have simplydeferred to local ordinances for those protections, as stated by the head of the DMN at the time, Sovas.
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New York is one of a few states thatcombines both minerals management and environmental enforcement inthe same agency, the former activity compromising the integrity of thelatter. Most states split these functions – and have an autonomousenvironmental regulatory agency.
Inadequate Staffing
Staffing was flagged as a problem 18 years ago, and has recently gottenworse:
“From a peak staff level of 52 in the mid-1980s, the number of positionsdeclined to 44 in FY 90[-91], and still further to 33 in the last two fiscal years. Equally important, non-personal funds for purchase of equipment,computers, gasoline, and supplies were dramatically reduced from$230,850 in FY 90-91 to approximately $76,000 in each of the last twofiscal years.” 
{Page 12}
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