Our neighbors in Tonawanda, on the Niagara River in western New York State just south of Buffalo, were being poisoned for decades by a company that, unlike the gas/oil industry, does not enjoy exemptions from clean water, clean air, toxic waste laws and other regulations set in place to protect our environment and health.

For many years regulatory agencies DEC (NYS) and EPA (federal) ignored residents’ complaints of foul air and physical ailments, outrageously high rates of cancer and other diseases, and benzene levels 500 TIMES HIGHER than what is considered the highest acceptable level in state guidelines. Not only benzene, but other highly toxic chemicals were being released over decades into the air and water by a company called Tonawanda Coke Corporation. (No doubt others of the 50 or so industrial polluters that have PERMITS in Tonawanda contributed even more.)
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From the piece:
Joe Martens, commissioner of New York’s Department of Environmental Conservation, defended the record of his agency, which eventually set up high-tech air quality monitors that documented extremely elevated benzene levels, leading to the  enforcement actions. But he said such sophisticated equipment had not been available previously. So state officials had no way of knowing about the benzene, formaldehyde, and other toxic emissions seeping from leaks in equipment and piping at the plant, Martens said. “Hazardous air pollutants are difficult to detect. We didn’t have the equipment to do the type of detection — you know, police work — that EPA was able to do” later.
After reading this, what kind of idiot would say, “Hey, sure the DEC and DEP and EPA will protect us from being poisoned by industry”? Ask the people of Tonawanda, many of whom have become very sick and some of whom have died because of the toxins dumped on them by this single iron-smelting factory.
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Yet we are to trust that the DEC and other flaccid regulatory agencies will protect us from Big Gas and related industries and their fracking and related machines? No way, Jose! We must tell the DEC and the governor that no amount of regulation is acceptable. DEC (and DEP and other states’ agencies) regulations are not acceptable. Only a full and total ban on industrial poisoning from fracking and other industries is acceptable. 
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Read the great investigative piece on Tonawanda citizens who fought back against the polluting company, which was FINALLY CHARGED IN CRIMINAL COURT because poisoning us and our communities IS A CRIME and thus should be in the criminal code. Every one of the corporate officers and senior staff should serve serious jail time and pay heavy financial damages to those they poisoned. Not that any amount of money could restore the poisoned people’s lives or adequately compensate for their losses.

This piece is part of a fine, scary, and eye-opening new series by the Center for Public Integrity in concert with Slate and NPR, called “Poisoned Places.”
As often happens during in-depth investigations — an unexpected discovery. Reporters learned that the EPA maintains a “watch list” that includes serious or chronic Clean Air Act violators that have not been subject to timely enforcement. Two versions of the internal list, never previously made public, were obtained through the Freedom of Information Act. (More about the watch list here.)

Congratulations to the investigators, researchers, writers, editors, publishers, and funder of these important pieces. May they awaken people to the dangers we face and help them force change to protect and sustain the places we live, the air we breathe, and the lives we hope to continue leading.

- Maura Stephens, independent writer, associate director of the Park Center for Independent Media, and a cofounder of Coalition to Protect New York

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FAILURES  OF  DEC  OIL  &  GAS  REGULATION

By Brian Brock

Programs for oil and gas regulation by the New York State Department of Environmental Conservation were reviewed by Interstate Oil & Gas Compact Commission in 1994.  The resulting fifty five page report examines the details, but does not provide an overview.  Nevertheless Finding I.10 is a good summary: “DMN can not meet its program responsibilities and administer an effective program under current budgetary conditions.  The program is at a crossroads in this regard, because the status quo is not a tolerable long-term condition.”  The Division of Mineral Resources (DMN) is the principle division in charge of oil and gas regulation.

This review was conducted by a team of six experts from IOGCC, state governments, industry, and an environmental group with observers from the federal government, industry, and another environmental group.  First, DEC answered an extensive questionnaire.  Next, DEC staff were interviewed in Saratoga Springs NY May 1 to 5.  The review team met July 13 to 15 to discuss and prepare the draft report, which was then sent to all involved.  The team met a final time August 29 to September 1 to consider all comments and prepare the final report.  Funding was from the federal Environmental Protection Agency.  The full report, minus some of the appendices, is available at strongerinc.org.

From this final report “New York State Review, IOGCC/EPA State Review of Oil and Gas Exploration and Production Waste Management Regulatory Programs, September 1994”:

Rules and Regulations

“DMN’s regulations … largely originated in 1972.  In the mid-1980s, DMN began a process to substantially upgrade its regulations through … the GEIS in July1992.  Despite the substantial period of time that has expired since the inception of this effort, revised rules have not been proposed or promulgated to date.” {Page 5}  No rules and regulations have been promulgated since.  What is more, the recent draft SGEIS was likewise issued without a rules package.

“In absence of upgraded rules [and regulations], DMN relies substantially upon conditions attached to drilling permits to implement new technical guidance. … Such permit conditions only apply to new wells and therefore of limited utility.  Enforcement questions may also arise from imposing generally applicable permit conditions without first issuing rules supporting those permitting conditions.” {Pages 5 to 6}

“One of the principal stated missions of the DEC is protection of human health and the environment.  However Part 550 [to 559] of DMN’s rules do not expressly include protection of human health and environment as a goal or policy directive.” {Page 6}

“DMN regulations were not in conformance with Article 23 statutes after 1981 [revisions] and were changed as emergency in 1992.” {Appendix B, page 6}

Staffing

“From a peak staff level of 52 in the mid-1980s, the number of positions declined to 44 in FY 90[-91], and still further to 33 in the last two fiscal years.  Equally important, non-personal funds for purchase of equipment, computers, gasoline, and supplies were dramatically reduced from $230,850 in FY 90-91 to approximately $76,000 in each of the last two fiscal years.” {Page 12}

“Consequently, six inspector positions [including one filled by an inspector on extended leave] are available statewide to inspect [500 to 600 annually of the] 14,000 active wells and 5,000 wells of unknown status.” {Page 38}  Also an estimated 45,000 inactive wells.  In 2008, DMN reported inspection of 2,445 sites annually with a staff of 19.  The 2009 annual report has yet to be released.

“[Staff for] both regions [8 and 9] are under milage and overtime limitations, and have not been able to replace vehicles or purchase other equipment in the past five years.” {Page 38}

“… field staff indicated that they generally operate in a reactive mode due to staff limitations.  For example, they have not conducted routine inspections in the last three years.” {Page 38}

“Additionally inspections such as well plugging, permit transfer, and temporary abandonment inspections are done as resources are available.  Many of the 25 gas storage fields have not been inspected over the last 15 years.” {Page 38}

“The legal side of DMN activities suffers from similar resource deficiencies.  There is currently one program attorney in headquarters, whose responsibilities are divided between oil/gas and mining activities.  While DEC regional attorneys assist DMN regional staff in enforcement matters, this assistance is not always timely or adequate because of competing demands on these DEC attorneys.” {Page 14}

Siting and Permitting

“DMN rules contain several siting provisions, but these provisions apply to wells and not pits or tanks associated the wells.” {Page 21}

“DMN rules related to siting are not comprehensive, since they do not cover areas such as floodplains, wetlands, proximity to drinking water supplies, and depth to groundwater.” {Page 21}

“Fencing flagging, and caging requirements are instituted on a case-by-case basis and are not contained in regulation or guidance documents” {Page 31}

“DMN does not consider operator compliance history when issuing permits.” {Page 17}

“DMN does not provide notice of intention to issues drilling permits and does not allow public comment on drilling permits prior to issuance unless an EIS or other supplementary SEQR document is deemed necessary.” {Page 24}  Since the release of the GEIS in 1992, no permit has required EIS or other supplementary SEQR documents.

“Permits are usually issued within 10-14 days of application” {Page 17}

Brine Wastes

“This [1987] survey indicated 8.6 million barrels [360 million gallons] of produced water were generated that year.  Most produced water is discharged into streams, discharged to land surfaces, or roadspread for ice and dust control [85 to 90 percent] or recycled for water flooding [or commercially treated, 10 to 15 percent].” {Page 9}  Percentages are from Appendix B, page 7.

“In Region 9, according to DMN, there is also a large but unknown number of discharges of produced water directly to land (where there is no pit at the end of the pipe).” {Page 10}

“DMN investigation activities to date have not included abandoned pits and other waste management units.” {Page 44}

“There is no explicit authority in DMN’s rules to require corrective action for non-oil releases.”  {Page 27}  Releases such as brine and gas.

“There is little or no coordination between DRA, DMN, DOW, and local governments regarding the determination of appropriate controls for roadspreading, the monitoring of environmental impacts, or sharing of information on this practice.” {Page 11}  DRA is the Division of Regulatory Affairs, and DOW is Division of Water.

Other Wastes

“DMN’s programs do not require representative testing of drilling cuttings disposed on site, produced brines which are roadspread, or associated wastes.” {Page 29}  Associated wastes include stimulating fluids, completion fluids, produced sands, and drying and sweetening chemicals.

“In short, no agency within the DEC is responsible for, or can produce, reliable information on associated wastes generation or disposal.” {Page 9}

“According to DMN, 90% of drilling solids are buried on-site, and 10% are recycled off-site.”  {Page 9}

“E&P [exploration and production] waste is regulated by DSW as a municipal waste since it is specifically excluded from the definition of industrial waste.” {Page 19} DSW is Division of Solid Waste.

Orphaned Wells

“Almost 18,000 of the 30,000 wells in the database are not plugged according to DMN records.  [Of these 18,000,] the agency has received reports from operators on 12,857 active wells, leaving approximately 5,000 wells of unknown status requiring further investigation.” {Page 42}

“Five thousand three hundred twenty-two unplugged wells of record drilled before 1973 are grandfathered [ie exempted] from financial assurance requirements. … [therefore] DMN holds approximately $12 million of financial assurance to cover a potential liability of $100 million.” {Page 19} Assumes that plugging a well will cost an average of $20,000.

While a few of these deficiencies are addressed in the dSGEIS, those changes would only apply to horizontally drilled shale gas wells.

Changes to the DEC programs since the summer of 1994 have not been documented.  The DEC has not cooperated in a follow-up review to evaluate its progress in the last 17 years.  In 2006, follow-up reviews for New York and Kentucky were scheduled, but the one for New York never took place.  (In contrast, Pennsylvania DEP had its review in 1992, two follow-up reviews in 1997 and 2004, and a review of its hydraulic fracturing program in 2010.)  In response to a 2009 survey, DEC claimed that of the 37 deficiencies cited in the 1994 report, they had fully remedied 10 (27%) and partially remedied 14 (38%), but no documentation was provided.

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From the Desk of Senator Tom Libous
April 27, 2010

Dear ———-,

DEC announced last week that permit applications in the Syracuse and New York City watersheds will be excluded from their environmental review process. All applications for horizontal drilling in these watersheds would need to be reviewed on a case by case basis.

You can read DEC’s full announcement by clicking here.

What does that mean to us? With Syracuse and NYC watersheds having extra protection, this could do two things:

1) Help stop some of the New York City opposition to drilling.

2) Free up DEC’s review efforts to focus on permit applications outside of those areas.

We might see safe gas drilling begin sooner than we thought.

But, we still face opposition from New York City Assembly Speaker Sheldon Silver. You can read his statement on www.SafeDrillingNow.com. We have to keep fighting.

Best wishes,

Tom

________________

Sounds familiar, doesn’t it? : Two maps, two standards, part 2

Then again, maybe he reads our blog…

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MB writes:

I just attempted to call Grannis about this decision to do separate
reviews for NYC and Syracuse. I told the operator what my call was
about and I was transferred to the Division of Mineral Resources. I
asked them to please transfer me back to Grannis’s office. After I was
on hold for several minutes, someone answered my call and when I
explained that I was calling to register my displeasure at the plan to
give unequal treatment to different parts of the state, I was told
that they are not taking calls on this matter except through the
Division of Mineral Resources. She said that I could email my concerns
to Grannis, and then they would be documented. I told her I knew the
decision was not hers and I was not angry with her, but that I was
furious that the commissioner’s office is not taking calls on this
matter. I went ahead and told her that I was opposed to the unequal
treatment–she said she was keeping no record of the call. I told her
that I understood that, but I was telling her my position so that if
she got many, many similar calls, she could go and tell her superiors
that she had gotten a lot of calls in opposition to the unequal
treatment, even if the individual calls were not recorded. I also told
her that I have lived in and paid taxes in NY for over 25 years, and
that I bet if Chesapeake were to call about something they would get
through.

People calling about Walter Hang’s effort to get the dSGEIS withdrawn
have been getting similar treatment.

We live in this state and they are not taking our calls! Are they
deliberately trying to piss us off or what? Do they think this will
make us LESS determined to stop this nightmare? If I sound furious,
that’s because I am.

If you have not already done so, please consider calling and sending
emails to the appropriate officials to express your displeasure at the
DEC’s recent decision to create separate regulations for the NYC and
Syracuse watersheds. Phone numbers and email addresses are:

DEC Commissioner Alexander “Pete” Grannis:
518-402-8545
pgrannis@gw.dec.state.ny.us

EPA Region 2 Administrator Judith Enck:
212-637-5000
enck.judith@epa.gov

Governor David Paterson
518-474-8390
governor@chamber.state.ny.us

When contacting Grannis and Paterson, you may also wish to complain
about the fact that, as of last Friday, Grannis’s office was NOT
accepting phone calls on this issue: they were instead transferring
the calls to our “friends” over in the Division of Mineral Resources.

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Last week, high-profile news stories indicated that “DEC won’t allow gas drilling in ‘the watershed.’”  Is that true?

You may have heard or read that the NYS Department of Environmental Conservation (DEC) has decided not to allow gas drilling within the Catskill and Delaware watersheds, which supply water to NYC.

Don’t believe it.

On April 23rd the DEC announced that it will exclude unfiltered water supplies from its generic environmental impact statement. Instead gas drilling applicants will have to go through their own environmental review process to obtain permits. [1] In the 1992 GEIS there are other situations which trigger an additional environmental review.

The main question is why did the DEC decide to release this statement now, instead of including it in the final Supplemental Generic Environmental Impact Statement (SGEIS)?

Here are three good reasons for this public relations stunt:

1. To diminish public opposition

Late last October, just before the start of the public review of the draft SGEIS, Aubrey K. McClendon, the head of Chesapeake Energy, announced that his company would not drill in the Catskill and Delaware watersheds. However, he was not willing to tear up their current leases, or sign a binding agreement never to drill there. Nor could he speak for the dozens of other gas drilling companies. The public saw through his maneuver and submitted over 14,000 comments to the draft.

It seems that Pete Grannis has been taking lessons from the CEO of Chesapeake Energy.

2. To try an end run around current proposed legislation

Over two dozen bills have been introduced in the NYS legislature about gas drilling. One that is gaining momentum calls for a state-wide moratorium until 120 days after the EPA finishes its report on hydrofracking. [2] Another proposed bill calls for a state-wide ban.

The last thing the DEC and the gas industry want is a multi-year moratorium. This press release is merely an attempt to stop these bills.

3. To try to avoid some legal requirements of their environmental review

NYS is in a very difficult position because no matter what they do they are going to get sued once the SGEIS is finalized. This move is an attempt to avoid some of those legal issues. However, it’s not likely to succeed since it simply creates a new legal challenge.

The point is this: gas drilling would still be allowed in unfiltered water supplies. The DEC’s decision does not block gas drilling anyplace, and it may not be legal.

[1]. DEC Press Release: DEC Announces Separate Review for Communities With “Filtration Avoidance Determinations”

[2]. Englebright bill, A10490

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Today, two maps to ponder.   Tomorrow, why.

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Toxics Targeting reports:

See un-naturalgas.org’s Resources & Documents page for
Pennsylvania DEP cease & desist order against US Energy

So, why is US Energy still allowed to do business in New York State?

And DEC thinks it can handle

more drilling?

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From Toxics Targeting:

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