January 7, 2013 Attn: Draft HVHF Regulations Comments New York State Department of Environmental Conservation 625 Broadway

Albany, NY 12233-6510 Comment with regard to Part 750-3.5(c)(1) Dear Commissioner Martens, I am writing to comment on the Revised Express Terms 6 NYCRR Parts 550 through 556 and 560 and 750 (the revised regulations). My comments are given under protest, as I am convinced that the issuance of the revised regulations by the Department of Environmental Conservation (the Department) without the prior publication of the final Supplemental Environmental Impact Statement (SGEIS) is a severely flawed procedure. I reserve the right to comment on the draft regulations again after the final SGEIS has been issued. Notwithstanding this reservation, I offer the following comments with regard to the depth of oil or gas wells below fresh water aquifers in New York State. Industry statements lead the public to believe that fracturing will occur many thousands of feet deep, so that the fluids cannot reach drinking water aquifers. To date most industry experience with horizontal high-volume hydraulic fracturing in tight shales is with relatively deep wells, about 5,000 to 14,000 feet deep. These wells are in fact many thousands of feet (4000 to 13,000 feet) below drinking water aquifers, so most experience in other parts of the United States is with a very large separation between the depth of the fracturing zone and the depth of drinking water aquifers. However, the Marcellus and Utica shales are at much shallower depths in many parts of New York State.

Furthermore, the revised regulations would allow fracturing at very shallow depths. Part 750-3.5(c)(1) states “the top of the target fracture zone at any point along any part of the proposed length of the wellbore, for HVHF must be deeper than 2,000 feet below the surface and must be deeper than 1,000 feet below the base of a known fresh water supply;” This is far shallower than most oil and gas wells in other parts of the United States have been drilled to date. At the shallow depths that high volume hydraulic fracturing would be allowed in New York State, the buffer of several thousand feet between fresh water supplies and fracturing simply would not exist as it does in other parts of the country.

The DEC must consider the potential impacts of hydraulic fracturing over short, medium and long time horizons. There is evidence that even if there are no immediate negative

impacts, both fluids and methane gas could reach aquifers within a few years. A study performed by ICF International for NYSERDA (Agreement No. 9679) states, “The literature review performed as part of the present study did not identify any published case histories or studies that included direct observation of the migration of frac fluids in hydraulically fractured shale.

“Studies of fracturing fluid migration in geological materials other than shale have shown some potential for migration beyond the propped portions of the induced fractures. In 2004, EPA summarized data on over two dozen mined-through studies in coalbed methane formations published between 1987 and 1993. In these studies, subsequent mining of sub surface coal seams allowed direct measurement of previous hydraulic fractures. Because shale does not have the economic value of coal and because shale formations are generally at much greater depths than coalbed methane deposits, there are no mined through studies in shale.

“The coalbed studies indicated that fracturing fluids follow the natural fractures and can migrate into overlying formations. EPA also reported that in half the cases studied, fracturing fluids migrated farther than and in more complex patterns than predicted. In several of the coalbed studies, the frac fluids penetrated hundreds of feet beyond the propped fractures either along unpropped portions of the induced fractures or along natural fracture within the coal.” (Emphasis added). Note, the forgoing was included in Appendix 11 of the July 2011 revised draft SGEIS but this section was expunged from the September 2011 revised draft SGEIS.

From these EPA studies, we have direct evidence that at shallow depths in material other than shale fracturing fluids migrated further and in more complex patterns than expected, sometimes hundreds of feet beyond the areas where the propant was deposited along fractures caused by the process or along natural fractures.

We do not have similar information on shale. Thus, we really do not know what depths are safe. Contamination of drinking water aquifers can be irreversible. A cautious approach is needed. The DEC should establish safer vertical distances. A minimum of 4000 feet below the deepest drinking water aquifers and the top of the target formation, or 5000 feet below the surface, would be similar to the de facto buffer that exists in other parts of the United States, simply because of the depth of the shale in those other locations.

The DEC should require a minimum of 4000 feet between any fracturing zone and the deepest drinking water aquifer, or 5000 feet below the surface, whichever is greater. Alternatively, a site-specific SEQRA review should be required, but under no circumstances should the fracturing zone depth be less than 3000 feet below the deepest drinking water aquifer or less than 4000 feet below the surface.

The revised regulations as proposed do not apply to wells using less than 300,000 gallons of fracturing water. Those wells would be regulated under the outdated 1992 GEIS and associated regulations, which does not specify a minimum depth requirement. The minimum depth requirement should apply to all oil and gas wells— regardless of the volume of fracturing fluid used.

With regard to the depth of the deepest potable water aquifers, it should be noted that water well drillers normally stop when they have obtained sufficient flow rates, so the depth of water wells in an area indicates only the presence of potable water at that particular depth. It does not necessarily indicate the maximum depth of potable water. Consistent with the rdSGEIS (7.1.4.2), a cautious approach to establishing potable water aquifer depth would be for the regulations to specify 850 feet or the maximum known depth in the area, whichever is greater.

Yours truly,

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