Starkey Citizens for a Clean & Healthy Environment
How the DEC Gutted the Fracking Regulations

Brian Brock FOIL’d copies of the DEC’s proposed 1997 fracking regulations, as previously reported here. The DEC then redacted them in 2000 – blanking out entire sections of the proposed regulations or putting a line through them. The DEC then pretended that they had lost the proposed regulations entirely - during the entire four (4) year dSGEIS review process.

The DEC pretended to lose the proposed regs. because they offer substantially more protections for the environment, the general public, and adjacent property owners than what the DEC is currently proposing. After receiving over 80,000 comments on the dSGEIS, the DEC’s new proposed drilling regulations – that received over 210,000 comments - are substantially worse than the DEC’s own internal draft of 16 years ago. These “lost” regulations are a history lesson in corruption at the DEC.

Brian FOIL’d the DEC, and on the appeal of his denied FOIL, finally obtained a copy, here – marked up, as if the DEC has something to hide. Here are a few examples of what environmental protections were proposed (long before the dSGEIS hearings) and what was eliminated or changed prior to the December 2012 draft :

Section 553.1 General setbacks and requirements Page 46

In the ’97 proposed regulations, “well site“ the entire area of operations, has been replaced with “well pad” – only the drilling rig itself – in the December 2011 draft, which means there is no setbacks for the generators, compressors, pits, etc. at the well site from adjacent land uses:

“a) General setbacks for all wells.

For any well subject to Parts 550 – 560 of this Title, the well site, excluding the access road, must not be located closer than:”

In the currently proposed regulations, the only named protected land uses are “inhabited dwellings” and “places of assembly” – the long list of protected uses from the ’97 draft was eliminated in the December 2011 draft, at the behest of the gas lobby:

“2. 150 feet from: (i) any public building or area which may be used as a place ofresort, assembly, education, entertainment, lodging, trade, manufacture, repair, storage, traffic or occupancy by the public;”

Definitions. Page 9

The DEC eliminated all mention of an SEQR from the regulations:

“SEQR means the State Environmental Quality Review Act, Article 8 of the Environmental Conservation Law and Parts 617 and 618 of this Title”

Pit & Tank Construction Page 14

DEC eliminated the requirement for an automatic shut off to keep a pit from overflowing; the DEC subsequently eliminated the 2 feet freeboard requirement from pits, open pits can be filled to the brim under the proposed regulations:

“In the event of tank leakage or overflow, the department may require the installation of fluid level controls to automatically shut down wells producing into a tank or tank battery. The department may order all wells producing into the tank or tank battery shut in pending installation of the equipment.”

Waste Byproduct Storage Page 17

DEC eliminated protections for “property, public health” The 2011 proposed regulations have no protections for surface property rights:

“b) Waste byproduct storage. All waste byproducts must be stored in a manner that prevents pollution and protects the environment, the public health, safety and welfare,and property.”

Definition of Waste Page 16 and 17

DEC eliminated definition of Waste, but added a new definition for brine.

Associated wastes.

“Associated wastes are waste byproducts other than those covered in sections 550.5(a)(1) and (2) that are produced by regulated activities. Associated wastes include, but are not limited to:

(i) used completion, treatment and stimulation fluids including frac fluids, acid and produced sand;
(ii) waste fluids from drillstem testing, blowout preventer testing and other test procedures;
(iii) waste packer fluids and waste fluids from well swabbing or well blowback;
(iv) paraffin treatment wastes and other waste solvents and cleansers;
(v) production and fluid treating equipment wastes including, but not limited to:
(a) injection fluid pretreatment wastes; and
(b) gas processing wastes including, but not limited to: glycol based compounds, used scavenging materials and used filters and backwash;
(vi) accumulated solids and other residual materials removed from tanks, piping, lines, production separators and other equipment as part of a maintenance procedure, before replacing equipment or during well plugging . Accumulated solids and other residual materials include, but are not limited to: tank bottoms, emulsions, and paraffin buildup
(vii) trash, rubbish and other miscellaneous wastes including, but not limited to: open or empty sacks, bags and containers of supplies, surplus materials and old liners;
(viii) equipment maintenance wastes”

Time Limit on Storage of Waste On-Site Page 18 DEC eliminated 45 day time limit wording:

“Well site storage of drilling (waste) is limited to 45 days after cessation of operations, as specified under the partial site reclamation requirements in section 550.4(c). All associated wastes must be removed from the site within 45 days of generation unless otherwise approved by the department. Any remaining waste must be removed from the well site during final reclamation, as required in section 550.4(c).”

On Site Disposal Page 20 Bold deleted, indicating waste disposal onsite without landowner’s permission:

“(iv) The pit liner may be buried with the pit contents provided the liner is slashed to allow drainage. Landowner permission is required”

Prevention of Pollution Page 27

No standard of care regarding prevention of pollution:

“Pollution. The owner and/or operator must prevent or remediate pollution caused by activities regulated under Parts 550 – 560 of this Title. Owners and/or operators must at all times take all reasonable measures to prevent pollution and to remediate any pollution that occurs.”

Public Safety Violations Page 27

Bold deleted, DEC eliminates public safety violations:

“Public safety hazards. All owners and/or operators must prevent, control, remove or correct any public safety hazard associated with activities regulated by Parts 550 – 560 of this Title.The department may issue a notice of violation for any public safety violation. Violations must be corrected by the date specified in the citation.”

Bankruptcy or Tax Foreclosure Page 36

Deleted. Operator does not have to notify DEC of bankruptcy filing or tax foreclosure, when the driller slow pays you get a mechanic’s or tax lien slapped on your property:

“Bankruptcy or tax foreclosure or filing for bankruptcy or receipt of a notice of tax foreclosure on property used in an activity regulated under Parts 550 560 of this Title”

Self Certification of Annual Inspection Page 39

Bold deleted - all specific reporting requirements removed.

“Self-certification.

On the annual well report the owner and/or operator must certify that all well sites have been inspected to ensure compliance with Parts 550 – 560 of this Title and all applicable permits, approvals and orders. The owner and/or operator must perform the inspection at least once between May 1st and September 30th of the reporting year. The inspection must include, but is not limited to, a check for:

1. leaking wellhead and storage equipment;
2. signs of brine or oil spills including:
(i) pooled or oil;
(ii) discolored soil; and
(iii) dead vegetation; and
3. damaged dikes, damaged dike liners or obstructions in the dike that prevent it from performing its function”

Financial Security/ Plugging Liability Page 44

“Sidetrack” refers to a horizontal lateral. Bold deleted:

“Directionally-drilled wells. Financial security for directionally-drilled oil, gas and storage wells is based on total measured depth from the surface, rather than true vertical depth. Each sidetrack is considered a separate well. “

Setback of Wells page 47

As previously worded, the setback is from the horizontal lateral, not the well pad. This wording was dropped in the December 2012 draft, there is no setback from the horizontal section of the well:

“d) Directionally-drilled wells.

For directionally-drilled wells, the setback distances in section 553.2(a) must be measured from the vertical projection to the surface of all points along the well bore that intersect the target formation(s)”

Well Permits Page 62

All deleted, including the requirement for a SEQR as a condition of permitting:

“a) Application processing general. The review of each permit application includes:
1. a technical review of the well construction proposal;
2. a pre drilling site inspection of the well site, including access road location, pit locations,equipment storage and staging areas, vehicle turnarounds, and any other areas used in the regulated activity; and
3. an environmental review of the entire proposal conducted under the State Environmental Quality Review (SEQR) Act.”

Pipelines, gathering systems, gas processing, compressors, etc. Page 89,90

All of this was deleted, The 2011 draft eliminated regulations over shale gas industrial infrastructure – gathering lines, processing plants, compressors – no setbacks, no protections:

“Pipelines and gas gathering lines. Well operations may require the use of gathering lines or pipelines.

1. The department has the authority to review the following:
(i) the gathering lines between the oil well and the tank battery; and
(ii) the lines from the gas well to the separator outlet.
2. The department may set specific requirements for any pipeline or gathering line associated with or supporting operation of any well or facility subject to Parts 550 560 of this Title concerning:Revisions Since 10/97 Workshop Draft 90 (i) siting, design and construction;
(ii) operation and maintenance;
(iii) submission of maps, including maps of abandoned lines. The map must include a notation indicating the year of the North American Datum used to prepare the map;
(iv) sampling and analysis of line contents; (v) testing for leaks or other suspected problems; and
(vi) plugging, abandonment and reclamation.

Discovery Wells Page 104

All deleted. No seismic tests required to determine location of faults in new areas:

“Section 557.5 Discovery wells
a) General requirements. If a well subject to this Part is a discovery well, the owner and/or Revisions Since 10/97 Workshop Draft 104 operator must:
1. perform well testing, as determined by the department;
2. perform a geologic analysis including maps and cross sections; and
3. propose a spacing unit as required under Part 553. The department may grant permission to drill a second well to confirm the field, but ommercial production will not be allowed from either well until spacing has been established.”

Abandoned Wells Page 130

Bold deleted, operator may orphan the well by surrendering the lease:

“b) Goals and responsibilities. All wells must be plugged and abandoned in a manner that confines oil, gas, water, or other fluids to the reservoirs in which they naturally occur and in such a manner to prevent pollution. Proper plugging and abandonment includes reclamation. The owner and/or operator must reclaim all affected land as required in section 550.6.The owner and/or operator may not transfer plugging and abandonment responsibility or other legal responsibilities for a well by surrendering the lease.”

Meaning the operator can walk away from their P&A responsibility by abandoning the lease. Which is of course what has already happened to thousands of wells.

These deletions and alterations simply confirm a pattern of corruption within the Division of Mineral Resources, who have systematically gutted responsible environmental protections at the behest of the gas lobbyists.

Given this on-going pattern of bureaucratic intransigence in Albany, I am going to suggest that fracking – specifically high volume horizontal drilling – be prohibited in New York State. Have come to the conclusion that Pete Seeger is right. It ain’t worth ruining big chunks of Upstate just so that some Okies can shoot up the place prospecting for shale gas. Thanks, but no thanks. If the gas lobby stenographers inside the DEC have the temerity to shovel this ill-starred mess out the door before Valentines Day, you’ll know what to do. . . as if there has been any doubt.

PS. Who is Brian Brock ? He’s a retired geologist, and my pal. Like Team Slottje, he is where the rubber hits the road on all this fracking stuff in New York. His work made these revelations possible

Starkey Citizens for a Clean & Healthy Environment - frackfreestarkey.com