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Attn: Draft HVHF Regulations Comments NYS Department of Environmental Conservation 625 Broadway, Third Floor Albany NY 12233-6510 dec.ny.gov/energy/76839.html
FROM: Brian Brock 486 Oak Hill Road Franklin NY 13775-3130 DATE: January 8, 2013
RE: Comments on HVHF Revisions to Regulations, Parts 550 to 560
The purpose of these revised regulations is to provide for environmentally-safe high-volume hydraulic fracturing of horizontally-drilled low-permeability gas reservoirs such as black shales. Necessarily they must build on the regulations for environmentally-safe drilling. Unfortunately those regulations are deficient. Current regulations for the Division of Mineral Resources (DMN), Title 6 of New York Code of Rules and Regulations Parts 550 to 559, are woefully inadequate – and have been so for 40 years now. The 1992 guidelines for environmentally-safe drilling, the Generic Environmental Impact Statement on the Oil, Gas and Solution Mining Regulatory Program resulted in not a single change to the regulations. In the GEIS (1992), DEC admitted that such regulations were needed, page 21-5: The State’s oil, gas, solution mining and underground gas storage regulations have not been updated since 1972. The current regulatory program is in need of modernization through updated regulations. This Statement went on to explain what had been done as a stop-gap measure: Most of the environmental protection measures mandated by the new Laws are currently applied through permit conditions. For decades, this abuse of permit conditions – with them being substituted for regulations – ignores their original intent. For an example of this intent, from the GEIS (1992) page 4-12: The Department of Environmental Conservation can also add special permit conditions to wells located in areas needing extra protection. Chautauqua County has suffered some of the worst oil, gas, and brine pollution. The County Environmental Management Council was more emphatic on the need for revised regulations in remarks on the draft GEIS (1988), page CR-129: The document is at least a decade late.
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The Council was alluding to the rash of pollution to water wells that started in the early 1980s with the Medina drilling boom that introduced hydraulic fracturing to vertical gas wells in New York. For example see NYTimes 8/18/86 T.J. Knudson, Tainted Well-Water Mystery Spoils Tranquillity of Southwest New York. Presciently the Council continued: The documents carry statements of recommendations but suggest no time table for changing the present rules and regulations. And we are still waiting for those changes a quarter century later. Two years after the GEIS was finalized, this lack of rule making was similarly criticized in the New York State Review: IOGCC/EPA State Review of Oil Gas and Exploration and Production Waste Management Regulatory Programs (1994), page 6: Finding I.1 “DMN rules require substantial upgrading to reflect current statutory directives, program policies, and state-of-the-art improvements in E&P waste management. Some of the areas requiring improvements are discussed in the GEIS and others will be highlighted in the remainder of this report. Recommendation I.1 DMN should establish and adhere to a schedule for completing its rule revisions as soon as possible, incorporating the relevant recommendations contain throughout this report into rulemaking. Pursuant to this, revisions and additions to the regulations were drafted and then discussed in public workshops held in September of 1997 at Batavia, Oleans, and Jamestown. However no regulations were finalized. In response to a FOIL request (11-1415), the DEC states that every single copy of those GEIS regulations had been destroyed. Unstated is who was responsible for trying to erase all traces of them. A copy must have survived as late as 2000, when those proposed GEIS regulations were revised, mostly by deletions. However these revisions never presented to public, and once again no regulations were finalized. A copy of these revisions exists and was obtained through a FOIL request, which was cited above, but only on appeal after the initial request was denied. Before being released, this list of regulations was redacted. Based on the GEIS (1992), the revision of regulations belatedly proposed in 1997 are a major reorganization and rewrite of Parts 550 to 559 and an addition of 560. In contrast, based on the SGEIS, the revisions of regulations proposed in 2012 – a.k.a. the HVHF revisions – are comparatively minor. For example, existing regulations Parts 557 (Secondary Recovery), 558 (Transportation), and 559 (“Bass Island” Trend) are antiquated. The GEIS proposed revisions (1997/2000) wisely eliminate them. However in the SGEIS/HVHF (2012) proposed revisions, these Parts remain, although they have become so inconsequential that no changes are made to them – the only Parts not updated.
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Critical issues that were left unaddressed by this failure of regulation including: * responsibility to protect human health and the environment, * brine disposal, * underground storage and solution mining, and * unplugged abandoned wells. The HVHF regulations contain many small revisions unrelated high-volume hydraulic fracturing but neglect revisions concerning these essential topics. Responsibility to protect human health and the environment. From the IOGCC/EPA (1994) Review, page 6: Finding I.2 One of the principle stated mission of the DEC is protection of human health 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. Recommendation I.2 DMN should revise its rules to explicitly incorporate protection of human health and the environment, and craft a mission consistent with this goal and objective. Pursuant to this, the GEIS proposed regulations included these revisions of Goals and Objectives, page 2: 3. to protect the public from hazards to public health, safety, and welfare that may result from regulated activities;[REDACTED] 4. to protect the environment and prevent pollution of lands, soil, air, surface waters, groundwater, plant and animal life and other natural resources on and off site of the regulated activity;[REDACTED] Nothing similar has been included in the proposed HVHF revisions to regulations. Brine disposal. In addition, because preparation of a generic environmental impact statement (GEIS) is the key step in developing criteria for recommending changes in existing regulations, it is anticipated that new regulations related to brine disposal may be proposed in the future. Any new proposed regulations may affect the acceptability of current disposal methods. Therefore, in anticipation of possible future changes in brine disposal regulations and the need for more cost effective brine disposal. From NYSERDA EAA No.1591-ERER-RIER-91 (October 1992), Executive Summary. New York State government anticipated that in the revised regulations, Public Operated Waste Treatment Plants would be banned from accepting drilling waste fluids. Therefore in reaction to the draft GEIS (1988), New York State Energy and Development Agency (NYSERDA) commissioned this report to explore the construction of commercial waste treatment plants in the state. The geology of New York has been found unsuitable for the only other alternative for the local disposal of drilling waste fluids: injection wells. Nothing similar has been included in the proposed HVHF revisions to regulations.
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Underground storage and solution mining have caused so-called “brine” spills, some of tens of thousands of gallons each. In Title 6 of NYCRR, a Part was added to address each of these two topics in the 1997/2000 proposed revisions. Nothing similar has been included in the proposed HVHF revisions to regulations. Unplugged abandoned wells are a hazard to public health and the environment, and orphaned ones are a burden on New York State. There are estimated to be tens of thousands of wells of unknown location and status, thousands with know locations but unknown status, and hundreds with know locations and on a priority list of orphaned wells to be plugged. Money for plugging orphaned abandoned wells comes from the Oil and Gas Account. This is funded by a $100 surcharge on each well permit, and with hundreds of wells permitted annually, yields tens of thousands of dollars each year. Unfortunately one abandoned well typically cost thousands of dollars to plug and can cost tens of thousands. (What is more this account is also available to compensate local governments for damages by the regulated activities.) As a result, most of the orphaned abandoned wells have been plugged when funded by the Federal Government. To address this, at least in part, the GEIS proposed regulation, pages 130 to 140 added the new Part: PART 560, PLUGGING AND ABANDONMENT, Sections 560.1 to 560.4. In particular Section 560.4 Good samaritan plugging and abandonment In contrast, the HVHF revisions require operators to provide extremely limited assistance by locating the single closest abandoned unplugged well within 1 mile of the wellhead, Section 552.1(b). Also there remains the responsibility for plugging these wells. Nothing similar has been included in the proposed HVHF revisions to regulations More recently, the Office of New York State Comptroller Report 2005-S-54 Department of Environment Conservation: Lease of State Land for Gas and Oil Exploration and Production exposed significant deficiencies in existing regulations. ECL Article 23 Title 3 Section 0301 requires of the Division of Mineral Resources (DMN): that the correlative rights of all owners and rights of all persons including landowners and the general public may be fully protected This statutory right of landowners to be compensated for the sale of gas from their property (royalties) require certain knowledge of the amount of gas produced from each well. According to this report, page 5: However, the Department does not have a system to determine whether well operators accurately report all oil and gas production The Comptroller’s audit found that DMN does not: * require calibration of meters at the well head, * verify that meters readings are accurately recorded, or * audit reports of production. As stated in this report, page 9: such steps are routinely taken in other states. Regulations are needed to empower and require these actions by the DMN.
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Nothing similar has been included in the proposed HVHF revisions to regulations Recommendation Fully codify the guidelines of the GEIS (1992), IOGCC/EPA Review (1994), and State Comptroller Report (2005) into Title 6 of New York Code of Rules and Regulations. These can hardly be controversial because they either originated from New York State government (GEIS and State Comptroller Report) or the government was an active participant (IOGCC/EPA Review). Also limit the appending of conditions to drilling permits to what is unique to that specific drilling site. Until these more extensive revisions of Title 6 are completed, DEC is unprepared to fulfill its statutory obligations. In the current politicized atmosphere, such revisions will tax the Department. However, this state-of-affairs resulted from decades of DEC neglecting its regulatory responsibilities over oil and gas exploration and production.
End note: These comments are submitted under protest because DEC required it to be completed within 30 calendar days, which included major holidays, and be based on only a draft of the SGEIS. Given this limited time and information, my comments deal only with the scope of the HVHF revisions. By no means should my lack of criticism of the text of individual regulations be construed as approval.
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