JANE WELSH
Hamilton, NY 13346

February 13, 2009
Re: Statement Concerning Final Scope ( the “Scope”)for Draft Supplemental Generic
Environmental Impact Statement on the Oil, Gas and Solution Mining Regulatory
Program
SENT BY REGULAR MAIL
Governor David A. Paterson
Attorney General Andrew M. Cuomo
Commissioner Alexander B. Grannis
Director Bradley J. Field

Gentlemen:
I am sending this via e-mail to additional individuals who work for you for whom I have
found e-mail addresses. I would very much appreciate it if you or they would forward my
comments to any and all additional individuals in the Legislature, the Governor’s Office, the
Attorney General’s Office and at the Department of Environmental Conservation who may
have any interest in the above-referenced subject.

I am an attorney living in Madison County. My husband’s family has lived in this area for
fifty years. I have numerous friends and clients who live in the Town of Lebanon, not far
from where I live. In the Town of Lebanon alone, there are currently approximately fifty
drilled wells and yet another thirty are in various stages of development, according to the
Town Supervisor. I have just read all fifty-six pages of the Scope. As a constituent and a
concerned citizen, I am compelled to express my point of view, a point of view that I share
with others in this community, about the need for strict regulation of the gas and oil
industry in Central New York.

While I applaud DEC for considering those issues that are addressed in the Scope, I am
distressed that it is so limited. For this reason, the Scope is a disappointment. While DEC
explains its rationale for limiting the Scope to such a degree, I can’t accept this rationale.
The Scope states that “it is not the Department’s intention or objective to re-open the 1992
Findings for any activity that was reviewed in the GEIS [the 1992 Generic Environmental
Impact Statement] and which will remain consistent.” (Scope at 8). This approach fails in
two respects.

First, it would seem that DEC made a judgment prior to preparing the Scope – without
considering current evidence – not to revisit the 1992 Findings. DEC apparently assumed
that drawing upon many additional years of experience was not necessary or advisable.
Furthermore, the 1992 Findings are based on research and analysis that took place from
1988 until 1992. Thus, the DEC has made a conscious decision to treat findings and
conclusions that are based upon twenty year old data as current and not worthy of a fresh
look. WHY? The internet revolution had only just begun in 1988. Certainly, no one would
argue that current decisions about IT should be determined by what was state of the art in
the IT world in 1988 or 1992.

Second, Central New York has changed substantially during the past seventeen to twenty
years. Demographics are quite different as is population density. These wells are being
drilled in populous residential areas. I can’t think of any land use planner or zoning board
in the country that wouldn’t think long and hard before permitting an industrial use in a
residential area. The Scope states that the overall well site density is not likely to be
greater now than it was in 1992 (Scope at 39); yet the fact that population density and
development is far greater now than in 1992 has been conveniently ignored. In short, DEC
and the State have lost an important opportunity to conduct a thorough analysis and create
a coherent overall policy concerning oil and gas drilling in this State that would be relevant
in the twenty-first century.

The Scope states: “The State of New York’s official policy, enacted into law, is to ‘conserve,
improve and protect its natural resources and environment…’” (Scope at 2). In addition,
DEC’s job is to protect public health and ensure safety. The very nature of gas drilling in a
populated developed area is incompatible with these policies. Yes, the Environmental
Conservation Law requires DEC to prevent waste of New York’s oil and gas resources and
provide for recovery of those resources. But at what cost and at what degree of risk?
These are questions that absolutely MUST be asked and addressed by our State
government. If DEC does not consider these questions to be within their purview, then it is
incumbent on DEC to prohibit widespread drilling (no matter what technology is being
proposed) and take serious steps to prevent the waste and destruction of our relatively
unspoiled environment until our State government establishes policies and creates laws to
more thoroughly regulate the oil and gas industry.

To be more specific, the interests and needs of the public must be addressed first. Why
must the gas and oil companies (the “Companies”) hold all of the cards while the State’s
people and property are put at risk. Laws need to be amended and/or enacted and
regulations promulgated to accomplish the following:
- The Companies must be accountable to local authorities concerning local issues
and local government must be given the power and authority to enforce local laws,
to which the Companies should be subject just like any other business. The
Companies must be required to carry their weight like any other taxpayer. They
overburden our roads, our first-responders and our resources without contributing
a nickel.
- A state trust fund must be established and funded with Company revenues to be
used in case of damage or destruction to property, wetlands, aquifer, streams,
wildlife, etc. Believe me, the inevitable will occur and our tax dollars should not be
used to clean up the mess.
- The Companies are spending money to influence the outcome of local elections in
an attempt to unseat local officeholders who are working to educate and protect
their constituents. This behavior should be criminalized. The Companies should
stay out of local politics. Local officeholders should be required to disclose
contributions received from the Companies.
- The laws regarding compulsory integration must be revised to make it possible
for a property owner to REFUSE to be forced into a spacing unit. Every property owner
whose property is used to create a spacing unit should be included only
voluntarily. The companies are using compulsory integration law as a weapon
against the people that it was initially designed to protect.
- Seismic testing must not be permitted anywhere along the road right of way
without notification and prior written consent of the owner of the property
adjacent to the right of way. The State should adopt the law of seismic trespass.
- Well drilling within one mile of a municipal water supply or a private well should
be strictly prohibited. If a one mile buffer zone excluding drilling can be created to
protect New York City’s water supply, why would the State not create an equally
large exclusion to protect the water supply of its citizens upstate?
- The chemicals and other additives being used in the hydraulic fracturing process
(or for that matter in any drilling process) must be listed on DEC’s website and
otherwise be made available as a matter of public record. If laws need to be
amended to make this possible, then amend them. The use of known carcinogens
and other chemicals and additives that are a threat to public safety and the
environment should be strictly prohibited.
- State laws must be enacted to ensure that State standards and requirements are at
least as stringent as, if not more stringent than, federal Clean Water Act and Safe
Drinking Water Act requirements from which the oil and gas industry were
exempted by the Bush administration.
- Municipalities must be prohibited from leasing municipal land for drilling and oil
and gas development. This practice presents a clear conflict of interest.
- State lands likewise must not be leased to the Companies. These lands should be
held in trust for the use and enjoyment of the people. First and foremost, the State’s
goal must be the protection of State land for all of us and for future generations, not
for profit. Again, it presents a conflict of interest.
- The Companies are wantonly destroying timber in the process of building access
roads and pipelines. This timber is irreplaceable in our lifetime. Erosion and
sedimentation controls should focus on preserving our forested land, and laws must
be enacted to this end restricting timbering by the Companies.
- Wetlands consisting of less than 12.4 acres should be protected.
- Contrary to statements (Scope at 11) in the Scope, water supplies have been
contaminated, perhaps not by hydraulic fracturing, but I would argue that that
qualifier is of little consequence to those affected. Brookfield is a notable example.
There was a gas well fire in Smyrna at the beginning of the year. Clearly, more
regulation and disclosure is required.
- DEC needs only to rely on a Company’s affidavit, submitted without evidence or
back-up, when considering a permit application. This is ludicrous. Appropriate
measures must be taken to place the onus on the companies to demonstrate
compliance at all stages of the permitting and production process. DEC needs to be
funded at a level that will permit frequent inspections and oversight at the well
sites. If this is not possible, then permitting and production should be slowed and
regulated to the point where adequate oversight and inspection can take place with
the current resources at DEC’s disposal.
- Standards for leases and other legal documents need to be established. Control of
the contents of these documents should not be left in the hands of the Companies
and their often unscrupulous agents. It should be recognized as a matter of public
policy that people with limited resources should not be forced to incur substantial
legal expenses in order to protect themselves against unconscionable practices. If
the State’s policy is to encourage drilling (as it appears to be) then the State first
needs to protect its residents. The Companies and individual people are hardly
evenly matched and State policy and law should take this obvious fact into
consideration. The prices being paid for lease rights and pipeline rights of way
must be a matter of public record. The State must not countenance the Companies’
practice of pitting neighbor against neighbor. This is definitely not sound public
policy.
- The Scope cites potential positive impacts from gas development in the 1992 GEIS.
I can’t say the inhabitants of Madison County have felt them. Legislation should be
enacted to require the Companies to put something valuable back into the
community since they are removing something valuable with little or no
compensation to the community. So far, the quality of life of my friends and
neighbors is being adversely affected as they sit by, without any recourse, during a
time of economic uncertainty and watch their property values diminish even
further.
- With respect to areas of historic, architectural and archaeological significance, the
State Historic Preservation Office has determined that portions of Madison County
are indeed eligible for nomination to the National Register. This work was funded
by Stop NYRI, a private local group dedicated to stopping the construction of
proposed power lines. The PSC is the lead agency on this. DEC should interface
with SHPO and take this information into consideration. It is insufficient for DEC to
review only those sites that are listed on the National Register. A declaration of
eligibility should be sufficient, since the only difference is the substantial cost
involved in obtaining the listing, and those maps do exist.
- Minimum setback requirements should be established at boundary line
perimeters. All too often, the Companies are building their access roads right at the
lot line, thereby hurting the adjacent landowner. At the very least, the Companies
should be required to adhere to a setback policy and to mitigate the visual and noise
impacts on the adjacent landowner. The Scope states that “in the absence of any
evidence of environmental degradation having occurred from the lack of …
setbacks…,” recommendations for setbacks are not included in the Scope. I doubt
that you would feel this way if your property were the one being adversely affected.
- Each of the leases being signed has the potential to last for a very long time and
thus to qualify as a taxable transfer under the New York State Real Property
Transfer Tax Law. This is an issue that should be looked into. Again, the landowner
must be shielded from potential liability for these taxes and the Companies should
be contributing something to the State’s coffers if they want the legal protections
afforded by placing their document of record.

The Scope states that the DEC has “far-reaching enforcement authority over the activities it
regulates.” It continues: “It is not, however, the purpose of an environmental impact
statement to provide enforcement recommendations or policies” (Scope at 51). I tend to
agree with this statement. But, then whose responsibility is it and what is being done to
address the points that I, and others before me, have raised. In fact, the Scope, in its final
pages, presents a list of concerns which “require legislative action” – not as comprehensive
as mine, but it’s a start.

Where is the political will to actually address these policy issues and take the legislative
action necessary to level the playing field between the gas companies and your own
constituents? Where is the leadership? By the time you wake up and start thinking about
these things, it will be too late for the people of Central New York. Do you care?

Respectfully submitted,
Jane Welsh

Tags: buffer zone, CI, compulsory integration, Marcellus, property values, scope, seismic testing, setback, SGEIS