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Bureau of Oil & Gas Regulation
NYSDEC Division of Mineral Resources
625 Broadway
Albany, NY 12233-6500

Subject: Scope Comment

To Whom It May Concern:

I am writing to submit comments to the Draft Scope for Draft Supplemental Generic Environmental Impact Statement (DSGEIS) on the Oil, Gas and Solution Mining Regulatory Program.

I would like to make it clear that I fully support, as the first option, the alternative suggested by the DEC in the draft scope of work, quoted as follows:

“7.0 ALTERNATIVE ACTIONS
Alternatives to be reviewed by the dSGEIS will include (1) the prohibition of development of Marcellus Shale and other low permeability reservoirs by horizontal drilling and high-volume hydraulic fracturing”

As a second option, I call for an entirely new GEIS to be completed by DEC.  The 1988 Draft and 1992 FGEIS are at least 16 years out of date and no longer relevant.  The new GEIS should include cumulative impacts, and the impacts from gas pipelines and greenhouse gas emissions, which were specifically omitted in the scope of work.

I live in Delaware County, on Sullivan County’s northwest boundary.  My family owns about 230 acres, for a large portion of which Chesapeake solicited a lease last spring.  We are members of the Sullivan Delaware Landowners’ Coalition.  My family has suffered from economic trends of the last decade or more, and we’ve had to learn to live on less and less.  Nonetheless, we believe that the only acceptable option is the one cited above: prohibition of development of Marcellus Shale and other low permeability reservoirs by horizontal drilling and high-volume hydraulic fracturing.  The comments I herewith submit regarding the draft scope will show why.

1. Hydraulic fracturing uses enough pressure to crack rock that in the case of the Marcellus Shale has the weight of thousands of vertical feet of material between it and the surface. While Tom Price, senior vice president of Chesapeake, is quoted as saying that this is a “surgical technique”, it is not.  Regarding a subsurface trespass case before the Supreme Court of Texas, the Fort Worth Business Press reported the following: “The problem is, however, that fracture stimulation isn’t a precise science…in some ways, cracking the shale [predictably] could be thought of as trying to hammer a dinner plate into equal pieces…’You may plan a fracture that will go 1,000 feet and it might go 2,000 feet or 400 feet, ‘ said John S. Lowe, a professor of energy law at Southern Methodist University’s Dedman School of Law.”…’How do you prove any fracing was correct or incorrect in an area that is not precise to begin with?’ asked [John] Holden [a partner at Dallas-based Jackson Walker LLP]…’Either side has to prove what’s going on down below, and that’s hard for both sides.’…Lowe said, ‘You can bring the scientific evidence, the scientific testing to see whether or not a trespass has occurred but I’m not sure you can rely on it 100 percent.’” – Fort Worth Business Press, July 7, 2008.

In light of 16 years of data gathering since ’92, it is worth examining, especially in a fractured bedrock geology, given the unpredictable nature of hydraulic fracturing and the extraordinary pressures used, whether this technology may cause disturbances in other than the target formations or exacerbate existing fractures and faults, thus creating conditions in which substances could start to communicate from one stratum to another.  I would like to know if this could be contributing to the existence of conditions that led to the following headline:  “Western PA landowners regret deep gas wells deals, gases bubbling out of the ground and into drinking wells and ponds.” http://www.riverreporter.com/issues/08-04-10/head1-drilling.html

So-called research cited on DEC’s website (http://www.dec.ny.gov/about/47291.html) as evidence that hydraulic fracturing is safe is from a source that can only be described as suspect, the Ground Water Protection Council, which is nothing more than an industry front group which seeks to maintain the current legal and permissive status of underground injection waste disposal, and to that purpose is designed to alter the dynamics of the regulator-regulated relationship.  This group lobbies and co-opts regulating bodies through a clever method which creates a peer-to-peer atmosphere in discussions about regulation, effectively castrating regulators’ power to regulate for the safety and well-being of the environment and all life dependent on it.  It is a matter of great concern to many informed citizens that regulating agencies across the US, including DEC, have allowed themselves to be so thoroughly infiltrated and domesticated by an industry group that has no higher objective than to keep its toxic and dangerous industrial processes legal in the face of a growing body of evidence that they should be prohibited.

2.  The 1992 GEIS discussed injection wells for disposal of removed fluids, and deep well injection is now being considered for disposal of frack waste water.  Again, since 1992 we have 16 years of addtional data to consider.   Pennsylvania DEP acting secretary John Hanger has said that in PA, deep well injection disposal has not been favored because of Pennsylvania’s geology – geology which does not change at the state line.  The draft scope, or preferably a new comprehensive GEIS, must consider what they know in PA that we don’t know here.

Deep well injection is implicated in a series of earthquakes that struck the city of Lake Erie, Ohio. (http://www.agiweb.org/geotimes/mar02/NN_quakes.html)  According to http://www.pollutionissues.com/Ho-Li/Injection-Well.html it is also implicated in numerous cases of water supply contamination.

There is an unwritten law more powerful than any passed by any legislative body anywhere: the law of  unintended consequences.  DEC must consider this reality: we do not know everything there is to know.  Try now, pay later is no more successful a strategy than buy now, pay later.

On page 13 of the draft scope, a sentence begins “Examination of each of the above disposal options along with others that may be suggested during scoping.”  The available evidence suggests to the uncompromised observer that there is NO acceptable disposal method at this time, and that high-volume hydraulic fracturing should be halted until there is.

3.  Spills of hazardous materials:  Page 11 of the draft scope begins with a paragraph that includes such phrases as:  “To date no spill or discharge of chemical fracturing fluid additives in their pure, undiluted liquid or solid form has ever been reported to the Department, nor has the Department documented any environmental degradation that could be attributable to such an event.”   In other places in the draft scope, (e.g. p. 20)  statements are made that adverse effects such as spills and excessive or dangerous atmospheric emissions could only happen in the case of accidents or permit violations – as if such events are impossible or unheard of.  This is a grave deficiency of the draft scope. Accidents are inevitable and New Yorkers are not so naive as to believe that permit violations never happen.  These dubious reassurances do nothing to remediate once the inevitable accident has occurred.

There is so much wrong with these collections of doublespeak that it’s difficult to know where to begin, but an attempt to itemize follows:
a)  Such statements attempt to obscure the reality that in industrial activity, accidents will happen.   They have happened.  If DEC has not documented them, that is cause for additional concern, not reassurance.
b) The fact that the inevitable spill has not been reported to the Department means nothing good, and only corroborates observations of the dishonest nature of the drilling industry.
c) The fact, if it is a fact, that the Department has not documented any environmental harms attributable to such spills means nothing, given, i. the Department’s gross understaffing issues, ii. the Department’s lack of applied intellectual rigor and regulatory zeal (as evidenced when DEC took the word of the Interstate Oil & Gas Compact Commission and incorporated the result of an informal poll of its members’ anecdotal recall in a PowerPoint presentation to municipal officials earlier this year, stating, “in over one million frack jobs, not one instance of groundwater contamination,”  when in fact, there are thousands of instances of groundwater contamination from frack jobs across the country).
d) The Department has never before regulated drilling activity at anywhere near the proposed magnitude and intensity, so even if there had never been even one spill of hazardous materials in all the decades of regulation of gas drilling to date, it is unreasonable and inapplicable to conclude or indicate that there is no reason for concern now.  Accidents are inevitable.  Increased activity mathematically computes to increased risk.

For the same reason, the assertion on page 10 that the Department has no record of any documented instance of groundwater contamination” is in no way reassuring – not only is there a lack of intellectual rigor, the will is missing too.  Numerous documented instances of groundwater exist in New York State, particularly in the western part of the state where drilling has been intensive for decades – though not even at the projected scale!  To say DEC has no record simply means DEC has not been doing its job.  Again, this lack of will, and the deliberate attempt to disarm concern by converting DEC’s wilfull neglect to document into a lack of evidence is a cause for only greater concern.

A little further down the page, one of the bulleted points reads: “information about fracturing fluid additives collected from service companies and chemical suppliers.”  This source list is inadequate.  Information from industry is only a start; this notoriously secretive and duplicitous industry should never be the exclusive source of such critical information. The phrase “independent researchers” should be added.  Dr Theo Colborn is a respected and authoritative source on the subject of fracking chemicals and no compilation of data on fracking chemicals could possibly be complete without including her work.  Two weeks ago I attended a presentation by the Independent Oil and Gas Association, where we were shown a slide that listed 4 main fracking chemical recipes.  The presenters were careful to point out the extreme dilutions of anywhere from 1/4 gallon to 5 gallons of chemical per million gallons of water.  One chemical, a biocide, is used at 1/4 gallon per million gallons. Yet during the Q&A, the presenter reviewed that slide and said, “Well, there’s nothing here that’s really toxic.”   This is not an isolated incident; active citizens have caught gas drilling industry representatives in deliberate lies over and over, and are documenting them.  DEC must not accept as a credible and self-verifying source the reporting of an industry whose representatives are so deliberately misleading.

Section 2.1.2.3 on confidential commercial status of additive formulas or constituents makes the statement that regardless of federal reporting exemptions, the Department is not prevented “from requiring that the information be submitted for review by DEC.”  “Not prevented from requiring” is far different than “will require.”  The draft scope should include information on how DEC will collect this information, from whom (including independent researchers, as mentioned above) and how DEC will verify and regularly update this information.

4.  Well spacing:  Potential of 16 wells per square mile is in and of itself a very significant and in fact unacceptable environmental impact.  The draft scope is at pains to repeat that noise and air quality issues are mostly temporary.  This may be true for each individual well, but the cumulative impact of having one well developed after another means that the noise and air quality issues continue, well after well, after well.  On page 9 of the draft scope, we find 2 curious statements.  One is that Chautauqua County has previously experienced 40-acre well spacing, that is, 16 wells per square mile.  However, this is not the reassurance that was intended.  An 81-year-old lady who lived in and traveled through Chautauqua County during that intensive phase says of it, “it STUNK” and noted that the water was undrinkable and tasted like gas.  The second curious statement is “the Department does not expect the rate of Marcellus drilling in any single county to match the peak Chautauqua County rate” – but fails to supply a justification for that perception.  DEC should be doing full buildout models for what it does anticipate, with  full cumulative impacts – not just individual site and localized impacts – detailed.

5.  Air quality and effects on human health:  Section 4.1.3 omits any mention of VOCs and ozone; again, it is essential to refer to Theo Colborn’s work on air quality on gas well sites. A new GEIS or else a revised draft scope must include consideration of findings from new research on the effects of VOCs and ozone on human and animal health as well as on crop yields.  New studies such as the very recently released, “Potential Exposure-Related Human Health Effects of Oil and Gas Development:  A Literature Review (2003-2008),” and the literature upon which it is based, must be examined thoroughly and the results reported and factored in fully and candidly.  Again, given the vast amount of data newly available in recent years, we need a new and comprehensive GEIS, not a patch that relies on foregone conclusions in a 16-year-old document based on now-outdated research.

Additionally, a phrase in section 4.1.3 reads that “concerns regarding evaporation of pit contents do not arise in New York because precipitation exceeds evaporation.”  This statement is an insult to the intelligence, and once again, it is difficult to know where to begin:
a) New York State is by no means unique in this regard; in fact, just the opposite is true:  There are probably very few places in the world in which precipitation does not exceed evaporation.  b) Of course precipitation exceeds evaporation; it is for this reason that we have surface water and ground water in abundance.
c) Any observer, even a child, understands that evaporation nonetheless happens in New York State.  Slightly more sophisticated observers understand that if water evaporates from the laundry drying (even on cloudy, misty days) on the backyard clothesline, then VOCs in drilling and fracking wastes will evaporate into the air we breathe all the more readily in almost any weather.
To imply that in this atmospheric condition,  evaporation of pit contents is of no consequence is a patent absurdity that is shocking and unsettling to see in a document prepared by the department that purports to regulate for environmental safety.

6.  Sensitive areas and water bodies: The specified setbacks mentioned in section 4.2.3 (page 28) and 4.5 (page 32) are inadequate and can only be seen as a gift to industry.  A new GEIS should study whether these setbacks are adequate, although common sense leaves no doubt that they are not.  This reader finds in the draft scope no mention of restrictions on sensitive or unsuitable topography.  Here in Delaware County, Chesapeake sought to lease our nearly 200 acres despite the fact that it’s all almost vertical.  We still have scarring from the 1996 flood.  On nearby properties, from one summer’s small -scale logging 4 years ago, there are erosion issues from soil compaction:  ditches where once were paths, streambeds that formerly were woods roads.  Here, the valleys are narrow, slopes are very steep, and soil is fragile and unstable.   The draft scope makes no mention of the potentially catastrophic effects of allowing a drilling operation to take place on sensitive topography and unstable soils.

Section 4.5 admits that drilling in wetlands is enough of a concern that it will be permitted “only when alternate locations are not available.”  In fact, if drilling in a wetland is of sufficient concern to warrant that precaution, then it should never be permitted, even when an alternate location is not available.

7. Setbacks for drinking water sources: Section 4.2.3.1, as well as numerous other locations in this document, mentions special considerations for municipal water sources.  I want the same consideration for my spring.  My springs are every bit as important to the health of my land and to my quality of life as municipal water sources are to those served by them.  If proximity to municipal water supply is “always significant” then proximity to private water supplies must also be considered “always significant.”

8. Noise impacts: Section 4.1.1 on noise impacts says that moderate to significant noise impacts may be experienced within 1000 feet of a well site.”  Anecdotal evidence suggests that number is an underestimate and that 1/2 mile is more accurate.  And the duration is understated as well, since with 40 acre spacing one location could conceivably be subjected to drilling noise for over a year.   Section 2.1.3 discusses well testing, including flaring.  It is supremely ironic that this corporate, large-scale activity is permitted – but DEC wants to ban individual citizens’ use of burn barrels.

9. Impacts from large well pads: Section 2.1.4 discusses the possibility of environmental impacts from larger well pads; the draft scope fails to mention any regulation of herbicide use; I am given to understand that “DEC exercises no control over the constant use of herbicides on 5 acre drilling sites.”

10. Impacts on communities:  Section 4.8 (pg 35) describes community impacts as temporary.  Again, with industrial scale operation, community effects are NOT temporary; intensive activity may move from one well pad to another, but is of sustained duration in the community.

For all the above reasons and more, the draft scope is inadequate.  It fails to address the issues the issues listed above and others, either adequately or at all ; for what it does superficially address it fails to meet the standard of a draft scope in that it does not state areas of interest in detail nor how and by whom each area of examination will be undertaken.

The draft scope reveals the Department’s bias in favor of natural gas extraction in many places, including mentions of the clean-burning quality of natural gas and the perceived need for additional energy sources.  This bias is unfortunate, short-sighted, and inappropriate.  Regarding the oft-repeated perceived need for further exploitation of energy resources:  Just as someone who has maxed out 10 credit cards doesn’t need another credit card, we don’t need more energy at any cost to our quality of life.  Even fossil-fuels industries admit that dependence on a finite resource is a dead-end course of action.  Instead, we need to learn to live within our energy means.  Much of the reason we have so much trouble with that is due to the close relationship between government and the energy industry, (sadly, a relationship much in evidence as we watch DEC’s interactions with the energy industry).  For the years 2002-2006 Chesapeake Energy had an average tax rate of 3/10ths of a percent.  If those taxes had been collected and put into real energy independence options, we would have some viable options each day for living within our energy means.  Other countries are much further ahead in this than we are.  If we were to emulate them, we would have solar panels along major highway rights-of-way,  as along Germany’s Autobahn.  We’d have small wind turbines on our buildings and would able to ride light rail for much of our personal transportation needs.  It’s the oil and gas and auto industries who decades ago persuaded our government to use our tax dollars to increase their control and profits, and decrease our choices; it was their lobbying that destroyed the early mass transit that was the common mode of transportation until the early years of the last century.

As the regulating body for the extractives industry, DEC must not accept the false choice that it should make concessions to industry, to sacrifice even a little bit of what environment still remains, let alone as much as this exploitation in actuality will cost us, for a few years’ worth of yet another highly polluting hydrocarbon energy source.  (Pollution is pollution, regardless of whether it happens at the extraction end or the consumption end of the process.)

Finally, perhaps outside the scope of this comment but nonetheless relevant:  many New Yorkers are not confident of the effectiveness of this comment process as a democratic exercise.  Citizens have come to expect contempt and disregard from all levels of government, including the Department of Environmental Conservation.   Nonetheless, we have invested ourselves in the process because we have a business relationship with DEC – we pay you to look after our interests.  Many of us have concluded that DEC cannot effectively do that because of the dual but conflicting responsibilities which which it has been charged:  stewardship of the enviroment and maximizing resource “recovery.”   Likely in part because of the compromising nature of that dual mission, many of us have come to feel we are not getting our money’s worth, and that if we were, the scope and scale of this proposed industrial activity would have been dismissed by DEC from the outset, instead of being promoted by it.

Many citizens have noticed that DEC is quick to pounce on private individuals doing inconsequential things that have no negative environmental consequences and in fact may be of environmental benefit. DEC has much to do to regain our trust as an enforcer of equal zeal when it comes to the activities of large corporations and the energy industry.

Sincerely,
(name removed for public posting)

Tags: biocide, buildout, Chesapeake, Colborn, contamination, cumulative, DEC, erosion, evaporation, Garza, GEIS, Ground Water Protection Council, groundwater, hazardous, hydraulic fracturing, impact, SGEIS, spill, VOCs