Flaws in the draft SGEIS

Sourcewatch Editor's Picks -- Top 17 Flaws

http://www.sourcewatch.org/index.php?title=2011_SGEIS_Flaws%28NY%29

These are the Editor's Picks of some of the most important points.

1: Equal Protection

• By giving the NYC and Syracuse Watersheds special protections, the NY DEC is implicitly admitting this process is inherently unsafe, and denies many New Yorkers Equal Protection of the Law. Q: Why the special protections? A: because this activity is inherently unsafe. Both the United States Constitution (14th Amendment) and the NY Constitution (Art. I, § 11) demand that all persons are deserving Equal Protection of the Law. These regulations fail this. (Walter Hang)

• The distinction that the NYC watershed is an unfiltered water source is a straw man. First, there are many people in upstate who are using unfiltered water from wells. Next, municipal water filtration systems are not sufficient to remove the range of toxins found in typical hyrdofracking water contamination (methane, volatile organic compounds (VOCs), heavy metals, naturally occurring radioactive materials (NORMs), etc.) Municipal filters are not effective against these toxins, so the very basis of the NYC unfiltered water vs. filtered water systems distinction is dubious at best.
   http://63.134.196.109/documents/10sep21_McIntyre-DrinkingWaterinWatersheds.pdf

2: No Public Health Impact Analysis

• No analysis of public health impacts despite the fact that fracking-related air pollution and the potential for water contamination have serious effects on people-especially the elderly and children, and communities downwind and downstream of proposed fracking operations. There is growing evidence of negative health impacts related to gas extraction in other states. (Environmental Advocates, and Larysa Dyrszka, MD)
   http://www.scribd.com/doc/63146614/Health-Impacts-Of-Fracking

• The DOH has not participated in the review process. Indeed, the problems associated with shale gas development near housing have only recently been catalogued as drilling has moved into suburban locations and farming communities.
   http://abcalliance.org/wp-content/uploads/2011/09/hydraulic_fracturing_and_children_2011_health_prof.pdf

• There is a growing body of evidence on the health impacts associated with shale gas industrialization, yet the DEC has avoided a health impact assessment of them. This is bad public policy.
   http://www.scribd.com/doc/64476300/Fracking-Health-Impact-Assessments

3: Drinking water supplies inadequately protected

• Shallow groundwater wells are uniquely vulnerable to being polluted by drilling operations. Drilling introduces methane into groundwater. Drilling near surface water sources virtually guarantees that they will be susceptible to being polluted by methane. Methane infused water is not potable. In high enough concentrations it is flammable. The proposed gas well setback of 500 feet from a water well is not adequate. See Sections 4.7 and 6.1.4

• The preliminary draft increases buffers and setbacks from aquifers and wells. However the protections are inconsistent and can be waived in some instances. All setbacks and buffers must be set to provide maximum protections that cannot be altered. (Environmental Advocates)

• While proposing to put the New York City and Syracuse watersheds off-limits to drilling, critical water supply infrastructure would not be protected.

• The state proposes a buffer around New York City drinking water infrastructure in which only an additional review would be required and upon which projects could be permitted-not a formal ban. The proposed buffer is only one-quarter as long as a typical horizontal wellbore, too close to the sensitive, aging infrastructure that provides the city with drinking water. There are no proposed buffer requirements for Syracuse. (Environmental Advocates)

4: No Way to Dispose of Toxic Fracking Waste fluids

• There is no way to dispose of frack waste fluids, and no way to clean the toxins from the "water" (calling flowback or "produced" fluids water is quite a misnomer), without re-introducing the toxins back into the environment. The best solution so far is to truck the waste to deep injection wells, the nearest ones being in Ohio, but these are not without problems (see the section on earthquakes). The DEC has no solutions, only 'suggestions' as to how to get rid of hundreds of billions of gallons of toxic radioactive wastewater.

• The plan by the DEC to track the solid and liquid wastes that are generated in connection with fracking sounds positive until you read that they are leaving the tracking of these wastes up to gas industry operators. We’ve all seen what happens when the industry is asked to police itself. Even more upsetting is that the DEC is still not classifying some of the waste that normally qualifies as hazardous, as hazardous, meaning that fracking waste could be sent to treatment facilities that are unable to properly treat it. (Catskill Mountainkeeper)

• Fracking wastewater is destructive to the beneficial bacteria used in municipal sewage treatment facilities and thus when dumped there interferes with the plant's ability to treat wastes.

• The preliminary draft allows drilling waste to escape treatment as hazardous waste, even if it is in fact hazardous under the law. This means fracking waste could be sent to municipal sewage treatment facilities unable to properly treat it, putting the health and safety of our waters and communities at grave risk. (Environmental Advocates)

• The state proposes allowing sewage plants to treat drilling wastes, even though such plants are not permitted to handle the toxic elements in such wastes, and even though the DEC itself has called into question New York’s capacity and ability to treat fracking wastes. (Environmental Advocates) This practice is no longer allowed in other states, including Pennsylvania, where treated sludge was not properly disposed of, contaminating surface water.
   http://www.nytimes.com/2011/02/27/us/27gas.html

5: Protection of Primary Aquifers for Limited Time Only

Yuck! Bad Water!

• The DEC is proposing to prohibit fracking in primary aquifers that serve as public drinking water supplies but this “prohibition” is only limited to a couple of years after which the state could “reconsider” the bans. In addition, the DEC does not lay out the conditions under which “reconsideration” would be reviewed. (Catskill Mountainkeeper)

• Some fracking restrictions would have sunset dates. The preliminary draft proposes to place some areas of the state off limits to gas drilling, but upon closer examination, many of the restrictions have sunset dates and some of the protective buffers only call for site-specific individual environmental review, rather than clear restrictions. (Environmental Advocates)

6: Bans on Drilling in State-Owned Land Inadequate

• The ban on drilling in state-owned lands looks good until you read that while the state will prohibit well pads above ground they will allow drilling under these same lands. (Catskill Mountainkeeper)

7: Permits to be Issued before Rulemaking Process is Complete

• See 3.3 Regulations - Regulations were never written for the 1992 GEIS, of which this most recent draft SGEIS is a monstrous "supplement". Therefore, there are no "regulations" per se, and the DEC proposes to issue horizontal well permits without regulations in place.
   http://www.scribd.com/doc/63728652/SGEIS-Not-Regs

• The document lays out a rulemaking process that would formalize its proposed safeguards in a single set of uniform, legally enforceable regulations, which is critical, but in a totally backward move they have said that they would begin processing permit applications before the rulemaking is finished. (Catskill Mountainkeeper)

• The DEC proposes issuing permits before formal rulemaking is complete, a backward move that leaves New York’s waters and communities at risk. (Environmental Advocates)

8: Cumulative Impact Requirements Incomplete

• References to how an area would be affected by the cumulative impact of many, many wells is only addressed for some aspects of that cumulative impact but the DEC has failed to lay out a comprehensive, focused plan to review and analyze the consequences of a full build out. (Catskill Mountainkeeper)

• As proposed the DEC staff will review the well applications one at a time, in isolation. Wells are drilled as part of multiple well drilling programs - not one at a time. The DEC should be prepared to look at and understand multiple well applications - which is how the industry operates.

9: Special Risk Areas Not Protected

• Regional Areas of Special Geological Risk Not Protected The DEC has not addressed fracking in areas of special geological risk, such as those with fault lines that are potential pathways for the upward gradient of contaminants into aquifers because they claim that contaminants can’t rise into aquifers. However, independent scientific studies have proven that upward migration of contaminants is not only possible, but also likely. The DEC based their assertion on industry studies that looked at just 5 days in the fracking process. (Catskill Mountainkeeper)

10: Open Waste Pits Not Banned

• The DEC has sidestepped banning deplorable open waste pits because they say that the gas industry has asserted that they are unlikely to use open pits for the storage of wastewater. Instead of prohibiting open pits out right, which should be done, they have proposed a system where a lone DEC employee could grant approval without doing an individual environmental impact study. (Catskill Mountainkeeper)

• See for instance 7.1.3.2 (Drilling Fluids) -- In the past drilling fluid or "mud" has contained asbestos powder. Recovered drilling mud contain drill cuttings from the shale which, by definition, have elevated levels of radioactivity. No open pits for drilling mud or fracking fluids or flowback should be permitted.

• In fact, while prohibition is one option available to the lead agency preparing the GEIS in dealing with risks of potential harms identified, there is actually very little of anything which is prohibited. Only, "proposed mitigations". (Ingraffea, 7-25-11)

11: DEC understaffed

• New York DEC has been subject to steep budget and staff cuts and does not have adequate staff or resources to properly oversee fracking, even if every possible protection were in place This reality raises the possibility that the DEC will be forced to cut corners with its reviews or fast-track permits despite the risks. Natural Resources Defense Council and Environmental Advocates of New York are members of an advisory panel expected to weigh in on agency resources (Environmental Advocates)

• The DEC proposes to limit well permitting to its staff's capacities, see 9.2.4, at a time when staff are being cut, not added. There are 17 staff for Division of Mineral Resources to oversee 14,000 + active wells and new permits. Absent adequate funding - in the form of higher permit fees and a severance tax - the DEC will remain unable to do its job effectively. This chronic lack of resources caused former Commissioner Grannis to leave.

12: Environmental Impact Reviews Split Among Several Agencies

• The thousands of miles of pipelines or compressor stations required for drilling to get the resulting gas to market will be reviewed by a different agency under a different process. Without an accounting of such impacts, New York’s environmental assessment is incomplete and the full impacts of fracking are unknown. The Public Service Commission has jurisdiction over gas infrastructure. As such, Governor Cuomo should direct state agencies to coordinate their efforts in order to protect our air, water and communities. (Environmental Advocates)

13: DEC Conflict of Interest

• How can the same agency, which is charged to

"conserve, improve and protect New York's natural resources and environment and to prevent, abate and control water, land and air pollution, in order to enhance the health, safety and welfare of the people of the state and their overall economic and social well-being"

...do that while they are the same agency which will be issuing permits which will likely (even certainly) harm the environment? (Chip Northrup)

Most oil and gas producing states separate the gas well permitting function from the environmental regulatory agency. Meaning, the environmental agency is not compromised by the task of issuing well-permits. Combining the two functions - well permitting and environmental oversight - insures that the DEC's environmental stewardship will be compromised. The DEC cannot serve two masters - the gas industry and the environment.

14: No ban on any chemicals, even those known to be toxic and carcinogenic

• While the proposed public disclosure component has been strengthened, telling New Yorkers what toxic chemicals will be used is not the same as protecting the public from negative health impacts. (Environmental Advocates)

• 8.2.1.2 Required Hydraulic Fracturing Additive Information The DEC does not require disclosure of materials listed as "trade secrets" - which could include carcinogens and toxins. Such chemicals should be disclosed and banned from use in New York.

15: DEC failed to use SEQR review for spreading PA flowback fluids on NY roads

PA Brine spread on NY roads threatens drinking water supplies

• The DEC has already failed to protect NY drinking water by allowing wastewater from PA to be spread on roads in NY without the necessary SEQR review'.
   http://www.pressconnects.com/article/20110720/NEWS01/107200413/Wastewater-from-gas-drilling-being-used-area-road-maintenance and
   http://www.toxicstargeting.com/MarcellusShale/documents/2011/07/21/wastewater-spreading . (Walter Hang)

16: No PA data

• After 4 years of intense drilling in PA, there is no data from PA about groundwater contamination or other actual impacts there in the SGEIS (Tony Ingraffea) 22 July 2011. See:
  Capitol Pressroom:  http://blogs.wcny.org/the-captiol-pressroom-for-july-22-2011/

17: Insufficient Public Comment Period

• According to the DEC , "In an attempt to keep the public informed on the progress of this matter, this Preliminary Revised Draft SGEIS is being posted. A more complete revised draft will be provided for public comment", after several delays, early September 2011. This document is over 1,000 pages, yet the public will not be given access to the actual document until after the public comment period has begin? We the public need more time to adequately study this document.
   http://www.dec.ny.gov/energy/46288.html

• The public has the legal right to comment on the Draft, but it may not have the time to do so. The Cuomo Administration and the DEC are giving the public just sixty days to read and comment on this huge, highly technical document. This is an impossible task for the ordinary citizen, as well as for scientists and technicians who could contribute valuable ideas if given the time to carefully analyze the DEC's plan for fracking. (Catskill Citizens for Safe Energy)