January 4, 2013 Attn: Draft HVHF Regulations Comments New York State Department of Environmental Conservation 625 Broadway

Albany, NY 12233-6510 Dear Commissioner Martens, Please accept the following comments regarding draft regulations on High-Volume Hydraulic Fracturing. At the outset, I wish to protest the process by which these draft regulations have been prepared and released for final public comment prior to completion of the revised SGEIS, which by law is required to inform the subsequent development of regulations, and prior to completion of a credible health impact study. Furthermore, the burden that DEC has placed upon individuals, organizations, and local governments to submit final comment on regulations within 30 days over the holiday season discourages meaningful public participation. Because of the inherent risks to public health, the environment, sustainable economies, and communities, in addition to programmatic deficiencies within the DEC, highvolume hydraulic fracturing should not be permitted in the state of New York anytime in the foreseeable future. Notwithstanding the above, I submit the following comments relating to one of many problems with the draft regulations, specifically the management of process wastes from oil and gas production in New York. 6 NYCRR Part 364.1 (e): Waste Transporter Permits: Exceptions Paragraph (1) of this section states: “Rail, water and air carriers are exempt from the requirements of this Part.” This paragraph should be repealed with respect to oil and gas development wastes, particularly for rail and water transport. 6 NYCRR Part 371.1 (e) (2): Identification and Listing of Hazardous Wastes: Exclusions Exclusions from being listed as hazardous wastes include paragraph (v): “drilling fluids, produced waters, and other wastes associated with the exploration, development, or production of crude oil, natural gas or geothermal energy”, regardless of whether they contain substances which are defined as hazardous in 6 NYCRR Parts 371 and 597 – and many of them do. This contradiction-introducing paragraph should be repealed. 6 NYCRR Part 550.3: Definitions “Subdivisions (a) through (g) of Section 550.3 are unchanged.” This segment of unchanged language includes §550.3 (f), which states: “Brine is synonymous with salt water.” The related definition of salt water, formerly §550.3 (at) but now re-designated (av), states: “Salt water shall mean any water containing more than 250 parts per million of sodium chloride or 1,000 parts per million of total dissolved solids.” These two sentences constitute the only descriptions of flowback fluids, production brines, organic chemical condensates, or any other process wastes in the entire canon of definitions in Section 550.3. Indeed, “waste”, formerly listed as §550.3 (ax), but now designated (bb), is defined as follows: "Waste shall mean: (1) physical waste, as that term is generally understood in the oil and gas industry; (2) the inefficient, excessive, or improper use of, or the unnecessary dissipation of reservoir energy; Page 1

(3) the locating, spacing, drilling, equipping, operating, or producing of any oil or gas well or wells in a manner which causes, or tends to cause, reduction in the quantity of oil or gas ultimately recoverable from a pool under prudent and proper operations, or which causes or tends to cause unnecessary or excessive surface loss or destruction of oil or gas; (4) the inefficient storing of oil or gas; (5) the flaring of gas produced from an oil or condensate well after the department has found that the utilization thereof, on terms that are just and reasonable is, or will be within a reasonable time, economically feasible." This definition for “waste” clearly has no relationship to oil or gas industrial process wastes. And one does not need to be a chemist to understand that the two definitions which are given for brine and salt water do not begin to describe the materials which flow as byproducts from oil and gas wells developed in New York or any other place. In fact, they are so simplistic as to be negligently misleading. Therefore, NO WORKING DEFINITIONS FOR PROCESS WASTES RELATED TO OIL AND GAS PRODUCTION EXIST IN THIS SECTION OF NEW YORK REGULATIONS. I am surprised that permits for petroleum extraction projects or the disposition of their process wastes could have been legally approved with such weak regulatory constructs in place. Moreover, improved language to address these issues is sequestered in the new Part 560.2, paragraphs (2), (3), (6), (8), (12), (13), (22) and (23), where it has no practical effect on industrial activity not defined as “high volume”. Therefore, even though the DEC acknowledges a need for regulation of chemicals disclosure and definition of process wastes, the changes proposed are worthless for conventional oil and gas projects targeting “tight” rock formations, which utilize chemicals indistinguishable from high-volume projects except for by the quantities consumed and disposed. The DEC should adopt regulations on chemical disclosure and the definition of process wastes that will apply to all wells, not just HVHF wells. 6 NYCRR Part 554.1 (c): Prevention of pollution and migration The new language of Paragraph (1) includes references to drilling mud, flowback water and production brine, which have no antecedents in Part 550.3: Definitions, as stated above. The new language requires owners or operators to state that they will maximally reuse or recycle used drilling, flowback and production fluids, without any consideration that the means of recycling or re-use involve the applications of heat (for facilitated evaporation) and pressure (for reverse osmosis), which promote chemical reactions that, given the complex mixtures involved, have never been studied. Again, one need not be a chemist to grasp that this simplistic requirement is a recipe for disaster. Revised regulatory language should require public reporting on the products resulting from the attempted reuse or recycling of waste fluids prior to acceptance of any disposal plan. The new language also mentions the importance of noting the history of other drilling operations in the area, but makes no mention of an even more important factor: the regulatory compliance history of the applicant. This paragraph should be revised to ensure that the compliance history of the applicant is evaluated for each owner / operator who submits an application. Paragraph (4) of Part 554.1 opens the possibility of beneficial re-use of drill cuttings as solid wastes, as specified in 6 NYCRR Part 360-1.15: Beneficial Use Determinations. However, certain drill cuttings, including some of those from the Marcellus Shale formation, are too radioactive or otherwise environmentally toxic to be safely re-used in any context. The reuse (road-spreading, asphalt manufacture, etc.) of oil and gas process wastes should be prohibited. 6 NYCRR Part 560.2: Definitions Page 2

Conspicuously absent from the definitions in this section and from Part 550.3 are any references to by-products and wastes released primarily to the air, or the major pieces of equipment responsible for such releases, such as chemical processing facilities using glycol dehydrators, and compressor facilities. At a minimum, the following terms should be defined in this section and in Part 550.3: diesel exhaust particulates, ozone, silica dust, and volatile organic compounds (VOC) including benzene, toluene, ethylbenzene, xylenes (BTEX), and polycyclic aromatic hydrocarbons (PAH). 6 NYCRR 560.5 (f): Drilling and Production Waste Tracking Form As mentioned above, the proposed regulations contain no mention of wastes released primarily to the air by oil and gas development projects. Since they can negatively impact the health of humans and other organisms nearby, waste products released to the air must be monitored and reported. The Drilling and Production Waste Tracking Form should be modified to include measurements of diesel exhaust particulates, ozone, silica dust, and volatile organic compounds which are released from each project site. Measuring equipment should be required to be fixed in place and continuously operational at various points, so as to be capable of monitoring substance releases in varying wind conditions. This section should also require the reporting of any releases of aerosols or powders which are not on this list. 6 NYCRR 560.7: Waste Management and Reclamation Paragraphs (a) and (b) prescribe the timely removal of fluids and other materials from pits. Overall, the use of pits for oil and gas production is very vaguely described and poorly organized. Whether and how they may be used for flowback fluids and production brines in projects requiring less than 300,000 gallons of completion fluids remains unclear, but it appears that they may be so used for such projects. Whether they could be used as contingency receivers in HVHF projects (as has happened in other states) is also unclear. The use of open pits for oil and gas development in New York should be summarily prohibited—regardless of fracking fluid volume. Paragraphs (c), (d) and (e) prescribe conditions for on-site burial (encapsulation) of certain drill cuttings. On-site burial of drill cuttings should be summarily prohibited. In the event that the DEC disagrees with this assessment, the specific place where any cuttings are encapsulated underground should be mapped and marked for future reference. Paragraph (i) prescribes the testing of flowback fluids and production brines for radioactivity. This paragraph should be revised to include a standard or maximum contaminant level, and to clarify that certain parties (landfills, treatment centers, general public) will have access to the test results. 6 NYCRR Part 750-3.2 Definitions The new definitions in this Division of Water section, especially (5), (7), (8), (14), (15), (18), (19), (20), (30), (31), (33), (38), (39), (40), (41), (42), (45), (51) and (52) should be harmonized with the Division of Solid Waste definitions section (Part 360-1.2), and the Division of Mineral Resources definitions sections (Part 550.3 and 560.2). That this has not been done is emblematic of a larger problem: the lack of inter-divisional coherence which currently exists in the New York Code of Rules and Regulations. 6 NYCRR Part 750-3.11: HVHF General Permit Paragraph (c) clarifies that “An HVHF general permit does not authorize the discharge of hazardous substances (as listed in Part 597) or petroleum.” Because of the heavy Page 3

reliance of Part 597 on Part 371, it is critical for the contradictory language of Part 371.1 (e) (2) titled Exclusions to be repealed, as noted earlier in this letter. 6 NYCRR Part 750-3.12: Disposal of HVHF Wastewater Paragraph (b) leaves open the possibility of beneficial use determinations (BUD) for flowback fluids by the Division of Solid Waste under Part 360-1.15. Given the difficulties of assessing and updating the chemical composition of these fluids, this loophole should be eliminated. Paragraph (c) prescribes requirements for acceptance, treatment and disposal of HVHF wastewater at publically owned waste treatment works (POTW’s). These facilities are not designed to process industrial wastes, particularly those with such disparate components as radioisotopes, biocides, oil- and polymer-based lubricants, endocrine-disrupting compounds, resin-coated proppant materials and toxic heavy metals. Therefore, flowback fluids and production brines from oil and gas projects should not be accepted at these facilities; this paragraph should be replaced by a prohibition on this treatment option. Paragraph (d) prescribes requirements for acceptance, treatment and disposal of HVHF wastewater at privately owned industrial treatment facilities. This is an appropriate destination of these wastes, but a new provision should be added that aggregates the combined effluent limits for individual facilities within a watershed in setting these limits. Paragraph (f) describes requirements for deep well injection of HVHF wastewater, which is primarily regulated by the Federal EPA’s Underground Injection Program. Sub-paragraph (5) provides that the DEC “may propose additional monitoring, recording and reporting requirements in a State Pollution Discharge Elimination System (SPDES) permit”. In view of the 5-year update cycle imposed by the USEPA, within which changes or anomalies may not be reported, the DEC should replace the language of (f) (5) “may propose” to “shall propose”, and shorten the update period to 12 months or less. Overall, I find that the proposed regulations regarding process wastes from oil and gas production in New York are riddled with deficiencies which include lack of harmonization among sections overseen by different Divisions of the DEC, lack of comprehension of the similarity of conventional and HVHF oil and gas productions technologies (except for scale), lack of rigor in defining the responsibilities of industry operators, and lack of appreciation for how problematic the disposal of oil and gas process wastes is likely to become. Thank you for your attention to these comments. Respectfully submitted,

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