The Division of Mineral Resources Considered as a Foreign Body

The contemplation of whether to ban hydraulic fracturing in one’s community, town, county or state necessarily takes place within the context and expectation of competent, reasonable state regulation of a dangerous practice, as High Volume Hydraulic Fracturing admittedly is. On a page of the Department of Environmental Conservation’s website can be found the following: "Chemical and pollution control is at the core of the New York State Department of Environmental Conservation's (DEC) mission, to protect New York's natural resources and our environment." (http://www.dec.ny.gov/25.html). Well, heck, what could go wrong? The DEC’s got our back! But there is fly in the soup, as always. A section of New York Environmental Conservation Law, ECL 23, describes, among other things, the regulation of mineral resources. Here is how the DEC describes the objectives of that section: “The legislative objectives of ECL Article 23, found in Section 23-0301, recognize that it is “in the public interest to regulate the development, production and utilization of natural resources of oil and gas in this state in such a manner as will prevent waste; to authorize and to provide for the operation and development of oil and gas properties in such a manner that a greater ultimate recovery of oil and gas may be had, and that the correlative rights of all owners and the rights of all persons including landowners and the general public may be fully protected, and to provide in similar fashion for the underground storage of gas, the solution mining of salt and geothermal, stratigraphic and brine disposal wells.” But here is how the DEC reinterprets the intent of the law in its proposed regulation, dropping the word “regulate” oil and gas in the statute and substituting it with “fostering, encouragement and promotion” of oil and gas: §550.1 Policy “The Department of Environmental Conservation, having been entrusted with the basic responsibility for administering to and regulating activities relative to the natural resources of oil and gas within the State, does hereby promulgate the following rules and regulations. These have been formulated after consultation with landowners, producers and other interested persons involved and a public hearing relative thereto. The rules have as their objectives: (a) the fostering, encouragement and promotion of the development, production and utilization of the natural resources of oil and gas in such a manner as will prevent waste; So the DEC, by substituting the word “regulate” with the phrase “the fostering, encouragement and promotion of” development, has misconstrued ECL 23-0301, thus invalidly converted itself from an environmental conservation organization into an environmental exploitation organization, as regards the regulation of hydraulic fracturing. How does it actually achieve this its regulations? By creating the Division of Mineral Resources (or DMR), to which it hands the job of fostering, encouraging and promotion of the gas industry. Thus the DEC, devoted to protecting the state’s natural resources, has imbedded within itself a division mandated to exploit natural resources. In fact, the DMR has no proper place within the DEC and should be an independent entitiy, so the DEC could defend us against it. There are only two states – for damned good reasons – in which exploitation of resources is regulated by the same department tasked with the conservation of those natural resources and the environment: New York; Pennsylvania. And this explains many of the shortcomings of the proposed regulations, for instance: • There are none of the scientific citations, required by New York State rule-making law, in any matter; for example ‘setbacks’ - the distance drillers have to keep away from homes, lakes, rivers, places of public assembly, and state lands and parks. And no provisions at all for

setbacks from suburban housing tracts and developments, businesses, office buildings, workers, farm animals, schoolyards, hospitals, nursing homes, places of worship, town and county parks, recreational fields and trails, wetlands, marshes, irrigation systems, canals, etc. There is no discernable reason for the exclusion of New York City and Syracuse from fracking. The DEC it excludes these two lucky cities because their water supplies are unfiltered, and all the rest of New York’s town waters are filtered systems. But filtering doesn’t remove liquids, dissolved chemicals and radioactive compounds (most of which are soluble), does it? Filtering doesn’t remove the fracking biocides that incapacitate water treatment facilities, either. Frackers’ toxic waste disposal is left to the individual inventiveness of the various drilling contractors, which the DEC proposes to approve one at a time, as they come in – a formula for inadequate, quixotic, and variable handling, depending on who is the DEC staff regulator of the moment and what his or her work-load and attention span is at the moment, etc.

This is not intended to become an outline of the failings of the DEC’s proposals. Rather, the point is that if you vote not to ban hydraulic fracturing, you will not be held safe by people at the DEC devoted to fostering, encouraging and promoting the well-being of your and your family’s and your neighbors’ health and the resources and environment of your town, your county, your state. You will be left to the dubious mercies of the DMR, pledged to foster, encourage and promote the gas industry. Hey, what the heck could go wrong?

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