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Albany, NY 12233-6510 Dear Commissioner Martens, Please accept the following comments regarding draft regulations on High-Volume Hydraulic Fracturing. First, I wish to object to the process by which these draft regulations have been released for final public comment before the revised SGEIS is finalized, as required by law to inform the drafting of regulations, and prior to a credible health impact study. The DEC has also placed undue burden on citizens, organizations, and municipalities to prepare comments on highly technical regulations with a minimal 30 days over the holidays, thereby squelching meaningful public participation. Due to the inherent risks to health, the environment, economies, and community character, hydrofracking should not be permitted in New York anytime in the foreseeable future. Notwithstanding the above objection, I submit the following comments relating to one of many problems with the draft regulations, specifically the failure to prohibit open pits in all circumstances. First, the regulations fail to prohibit open pits for flowback in all circumstances. Because HVHF has been improperly defined as operations using at least 300,000 gallons of water, the prohibition on open pits for flowback in Section 560.6(c)(27) does not apply for fracking with 299,999 gallons or less. This loophole must be closed and all flowback captured in closed tanks regardless of fracking volume. Second, the regulations do not prohibit open pits for drilling fluids, drilling mud, and cuttings. As written, open pits are only required for drilling fluid and cuttings associated with horizontal drilling in the Marcellus shale formation and this can also be exempted if an "acid rock drainage mitigation plan" exists, in which case cuttings might even be left onsite. According to Section 560.6(a)(4), open pits holding up to 250,000 or 500,000 gallons could actually be permitted and requirements regarding their construction would only apply to those used on multiple wells. It is also disturbing that DEC removed a requirement to maintain two feet of freeboard since the last draft of the proposed regulations; thus allowing open pits to be filled to the brim. This constitutes a further weakening of the regulations, and virtually guarantees the overflow of contaminates if any rainfall occurs.
With the exception of freshwater impoundments and regardless of the gas-bearing formation, regulations should clearly prohibit the use of open pits during the drilling or fracking of any well. Sincerely,