SUMMARY CRITIQUE OF THE DEC'S DRAFT SGEIS ON FRACKING:
WHY THE DSGEIS SHOULD BE WITHDRAWN AND THE SCOPING PROCESS REOPENED TO
CONSIDER PROHIBITION OF FRACKING FOR NATURAL GAS IN NEW YORK STATE
54 SERIOUS AND FATAL FLAWS IN THE DSGEIS 

Contributors:

Louis W. Allstadt: former Executive Vice President of Mobil Oil Corporation, Cooperstown, NY
Harry Levine: retired real estate developer, Princeton NJ and Springfield NY
Nicole Dillingham: Attorney and President, Otsego 2000, Cooperstown, NY
James Herman: Otsego County Conservation Association Conservationist of the Year 2010; Creative Director, Merry Wind Studios, Cooperstown, NY


***

I. INADEQUATE CRITERIA OF REVIEW:

1) Failure at scoping stage to assess reasons to prohibit fracking.

The DSGEIS gives this rationale for not prohibiting fracking for natural gas in NYS as a result of the initial scoping process:

"9.1 No-Action Alternative: The no-action alternative to the proposed action would be denial of permits to drill where high volume hydraulic fracturing is proposed and a prohibition on development of the Marcellus Shale and other low-permeability reservoirs using this method. If the no-action alternative were selected, none of the potential significant adverse impacts identified in this SGEIS would occur. However, at the same time, none of the substantial economic benefits identified in Chapters 2 and 6 would occur either. Furthermore, this important energy source would not be harvested, which would be contrary to New York State and national interests. It would also contravene Article 23-0301 of the ECL where it is stated: It is hereby declared to be in the public interest to regulate the development, production and utilization of natural resources of oil and gas in this state  in such a manner as will prevent waste; to authorize and to provide for the operation and development of oil and gas properties in such a manner that a greater ultimate recovery of oil and gas may be had, and that the correlative rights of all owners and the rights of all persons including landowners and the general public may be fully protected, and to provide in similar fashion for the underground storage of gas, the solution mining of
salt and geothermal, stratigraphic and brine disposal wells."

This rationale assumes but fails to demonstrate that the economic benefits of fracking for natural gas would outweigh any costs and harms. Similarly, Article 23-0301 of ECL assumes but does not demonstrate that it is "in the public interest" not only to regulate but to encourage "a greater ultimate recovery of oil and gas" in NYS. This is a fatal weakness of the DSGEIS. It prejudges the issue of the value oil and gas production, rendering all serious objections moot. This is highly irresponsible and calls the credibility of the review process into question.

2) Reliance on outdated and vastly overstated estimates of gas reserves.

The USGS has recently cut the estimate of reserves by 80%. The DSGEIS ignores this. In fact, the socio-economic study estimates that reserves recovered in NYS over a 60 year period will equal 150 trillion cubic feet (the moderate estimate). NYS is home to 20% of the Marcellus formation. The USGS estimates 84 trillion cubic feet for the entire Marcellus formation. If NYS has an average share of this 84 trillion, it would have total reserves of 17 trillion cf. Thus the DSGEIS is using recoverable estimates that is five times the expectation used by the USGS.

3) No evaluation of gas production vis-à-vis renewable fuel production.

Another fatal weakness. The lack of such an evaluation makes it impossible to assess whether or not gas and oil production is in the public interest or not, as noted in 1) above.

4) Failure to take seriously peer-reviewed studies of relevant issues.

The Duke University study (Robert Jackson and others, 2011) on migration of methane due to fracking, and the Cornell University study (Robert Howarth and others, 2011) on methane seepage from gas production systems receive only cursory notice on the DSGEIS. Being among the very few peer-reviewed studies available, they should be given priority.

5) Reliance on generic rather than site-specific review.

The site-specific conditions, which vary widely throughout NYS, ensure that a generic, one-size-fits all approach is inappropriate. The recognition that the New York City and Syracuse watersheds should receive special treatment belies the DSGEIS¹s insistence in all other areas of generic review.

6) Traffic and infrastructure impact estimates far too low.

Not only initial drilling and fracking but the totality of ancillary services, along with refracking, need to be taken into consideration.

7) Compulsory integration a taking of property rights.

Compulsory integration -- by which unwilling landowners will be forced to sell gas resources they own to the gas industry at a time and price not of their choosing -- is an unconscionable and unconstitutional taking of property rights. Compulsory integration was originally designed to protect adjoining landowners from having their oil and gas taken by a well on adjacent property that taps into an undifferentiated pool of liquid or gas that underlies both properties. In this situation, compulsory integration actually protects the owners of unleased lands. But in the case of fracking, where there is no undifferentiated pool from which oil and gas may be ³stolen² from under the adjoining land, there is no good economic or legal reason for enforcing compulsory integration. In fact, the only reason for allowing this practice is for the benefit of the driller and detriment of the non-lease owner.

8) Piecemeal nature of the DSGEIS and other gas regulations.

The DSGEIS was released in stages and depends on prior legislation which is not included in the current or previous (2009) DSGEIS as they were presented to the public for comment. Some setbacks, for example, can only be found by going back to the 1992 GEIS. There are also references to studies that are not readily available for public review.

9) Regulations issued before a final SGEIS is adopted.

Regulations should under no circumstances be issued before any EIS is adopted. If the DEC amends the final GEIS, will the regulations then also be revised?

10) Industry doubts about fracking not addressed.

Here is a statement from an article in Schlumberger's Oil Field Review (Winter, 2005/6, p. 44) entitled "The Source for Hydraulic Fracture Characterization": "While it is possible to have a good understanding of existing natural fracture systems, our ability to determine hydraulic fracture geometry and characteristics has been limited. Geologic discontinuities such as fractures and faults can dominate fracture geometry in a way that makes predicting hydraulic fracture behavior difficult. Clearly, the exploration and production (E&P) industry still has much to learn about hydraulic fractures."

Another article, "Fracs Tracked Using Microseismic Images," from Hart's E & P, states that: "Hydraulic fracture geometries are difficult to predict. Even in environments with relatively simple fracture geometries, hydraulic fractures can grow asymmetrically, have variable confinement across geologic horizons, and change orientation. In naturally fractured reservoirs, such as the Barnett Shale, hydraulically created fracture patterns become amazingly complex as the injected slurry preferentially opens the pre-existing fracture network." The industry itself admits here that fracking is an uncertain and unpredictable process. If they cannot confidently assume that the outcomes of the fracking process can be controlled, neither should the DSGEIS.

11) Changes proposed in DGEIS by the DEC without extending comment period.

The announcement by the DEC in December, less than a month before the close of the comment period, that it was requesting its consultants, Ecology and Environment (E & E,) to expand their study of the socio-economic impacts of fracking, amounts to a proposed revision in the DSGEIS. That should automatically extend the comment period until well after the anticipated socio-economic impacts are included and made available to the public. Failure to proceed in an appropriate manner in this way displays an unprofessionalism bordering on irresponsibility by the DEC.

II. GLOBAL IMPACTS IGNORED:

12) No assessment of methane emissions in relation to global warming.

Another fatal weakness. The serious issues raised by the research by Prof. Robert Howarth of Cornell (2011), which show that the methane seepage from wells, pipelines, compressors, and various other points in any natural gas production and distribution system (valves, seams, etc.), suggest that the net greenhouse effect of natural gas production is as great if not greater than that of other fossil fuels, such as oil and coal. Howarth¹s research suggests that natural gas production may be globally disastrous, and that its promotion by the DEC and NYS is very bad public policy. It gives the lie to industry claims that natural gas is a "clean" form of energy.

13) Failure of current fracking technology to contain methane emissions.

Howarth's research is on the Russian gas production system, one of the newest in the world. Its inability to adequately contain methane emissions suggests that it may be virtually impossible to do so. It only takes a small percentage of seepage to cause irreversible and catastrophic global damage, and it seems apparent that the current state of the art in gas production cannot eliminate such seepage. This alone should be reason to prohibit any further natural gas production anywhere.

III. INADEQUATE ECONOMIC AND ENVIRONMENTAL REVIEW:

14) No assessment of cumulative impacts.

This is another fatal weakness of the DSGEIS. Unless the totality of effects of natural gas production through fracking are taken into consideration, and cumulatively assessed, there can be no coherent evaluation of the impacts of this industry on NYS. The DEC¹s mandate to protect the environment of NYS cannot be carried out piecemeal; it requires a holistic approach and this has simply not been done.

15) Inadequate assessment of economic costs and liabilities of fracking.

Another fatal weakness. The DSGEIS touts industry estimates of economic benefits, jobs to be created, etc., but it fails to consider in any systematic way the harms and costs which natural gas production necessarily brings. Reports that industry estimates of jobs to be created are inflated are ignored.

16) No assessment of negative impacts on other industries.

Organic farming, tourism, recreation, hunting and fishing, second homes, and value added industries such as wineries, breweries, cheese factories, and other forms of food processing are all incompatible with fracking for natural gas. The Brewery Ommegang in Cooperstown, NY, recently stated that it would be forced to leave the area if gas drilling commenced. Residential property values in particular are almost certain to be negatively affected. Who wants to live next to a drilling field where water quality may be permanently compromised?

17) No assessment of effects on local services and taxpayers.

Cost of maintaining roads and other facilities and services (public health, first responders, fire and police) will fall to local communities already stretched to the limit. Will the revenue from ad valorem taxes cover the additional expenses to be incurred by local municipalities and school districts? How can the DSGEIS be complete without even an attempt to answer this question?

18) No assessment of effects on residential property values.

Local realtors already report lack of interest by potential buyers in homes on or near land leased for gas production; many local banks will not give mortgages on such properties. Further, many standard leases with homeowners contain clauses which would cause existing mortgages to be in default and subject to foreclosure in the event properties are leased.

19) Inadequate storm water provisions.

Upstate NY has been subject in recent decades to increasingly powerful storms and considerable flooding, most recently just this year. Some of the most serious damage from fracking could occur from heavy rains, runoffs, and washouts. Very strict provisions to contain or divert large volumes of runoff should be part of the DSGEIS.

20) Potential of fault lines to transmit methane or toxic fluids ignored.

There are major geological fault lines in Otsego County and elsewhere in upstate NY; many areas also have a porous karst geology amenable to migration of gas and fracking fluids over long and unpredictable distances.

21) No assessment of risks posed by major fault lines.

Areas near fault lines are not exempted from drilling. Recent news reports have connected fracking for natural gas with earthquake in Arkansas, Oklahoma, Texas, and England.

22) Recent studies showing additional fault lines ignored.

DSGEIS uses fault line information dating from 1977, ignoring more recent information showing many more fault lines in NYS and the Marcellus region.

23) No provision for safe disposal of drilling wastes.

Another fatal weakness. The hundreds of chemicals used in fracking fluids ­ many of them toxic (either carcinogens or endocrine disruptors) ­ cannot be eliminated by any water treatment process available to local communities.

24) Threshold for low-volume fracking raised too high.

The DEC has redefined low-volume fracking up from 80,000/gal/well to 300,000/gal/well. This in effects exempts a wide range of small fracking projects from the DSGEIS, encouraging the industry to proliferate "under the radar," especially across much of NYS outside the richest "sweet spots" concentrated in Broome, Tioga, and Steuben counties. This is a another fatal weakness in the DSGEIS, one that could be devastating for much of NYS.

25) No systematic discussion of Utica shale.

The DSGEIS reads as if the Marcellus is the only shale play under consideration. Yet the deeper Utica shale covers an even larger area of NYS and is largely ignored by the DSGEIS. There is no indication that permits for fracking will be limited to the Marcellus shale. Under these circumstances, drilling in the Utica shale will be allowed with virtually no review of the consequences. The DSGEIS should at a minimum be strictly limited to the Marcellus shale. Any attempt to frack the Utica or other formations should be the subject of another draft EIS.

26) Inadequate assessment of fracking impacts in Pennsylvania.

Hundreds of news reports over the last 3 years and more of spills, blowouts, fires, accidents, and other incidents in Pennsylvania now running into the thousands, are given short shrift in the DSGEIS. The failure to systematically evaluate the fracking impacts in Pennsylvania in the DSGEIS is unconscionable. A one-day visit to the area for a dog-and-pony show by the industry and its supporters in Pennsylvania does not constitute a serious review of the Pennsylvania horror story.

IV. HEALTH ISSUES IGNORED:

27) No public health risk assessments.

Another fatal weakness. Threats to public health are among the most prominent consequences of fracking for natural gas, but there is no systematic assessment of such in the DSGEIS. This too is unconscionable.

28) No specified role for the Department of Health.

The Department of Health should be at least a co-lead agency with the DEC in evaluating fracking in NYS, as recommended by the EPA. This has not been addressed.

29) Unequal treatment for NYC and Syracuse water sources.

The claim that NYC and Syracuse have unfiltered water systems and should therefore be exempt from drilling ought to be extended to all unfiltered wells in NYS, including private wells. The fact that drilling might negate the Filtration Avoidance Determinations (FADs) issued to NYC and Syracuse is a huge economic cost that the DEC recognizes. But the reason why these FADs are at risk is that the federal government considers fracking to be dangerous. It is this reason for loss of FADs that is the important point here, not merely the economic cost of losing FADs. Further, the Hazen and Sawyer study (2009), which documents the threats to the NYC water supply from fracking, ought to be the model for evaluating fracking across NYS.

30) Inability of filtration to screen out fracking toxins from water.

Another fatal weakness. Even filtration is inadequate, however, insofar as it does not screen out the many toxic chemicals used in fracking fluids. The inability to protect the public against these chemicals entering ground water and drinking sources generally is another argument sufficient to justify the prohibition of fracking for natural gas in NYS.

31) No required independent testing before and after drilling.

An elementary safety precaution would be to require at industry expense testing of water by independent certified experts before and after drilling. This is not included in the DSGEIS.

32) No guarantees that drilling can safely be done anywhere.

The inability of the industry and the DEC in the DSGEIS to specify circumstances under which the extraction and production of natural gas can be safely done leaves everyone at risk.

33) The issue of endocrine disruptors present among fracking chemicals is ignored.

As documented in peer-reviewed studies by Dr. Theo Colborn at the Endocrine Disruption Exchange (2011), and by Dr. Adam Law of Physicians, Scientists and Engineers for Healthy Energy (2011), and others, these chemicals, unlike others, are most toxic at very small rather than large doses.

V. INADEQUATE DRILLING REGULATIONS:

34) 1000-foot depth limit too close to aquifers.

The migration of methane over distances greater than 1000 feet as demonstrated by the Duke University study, along with the fault lines and karst geology of much of upstate NY, suggests that 1000 feel is grossly inadequate.

35) 2000-foot depth limit from surface inadequate.

The Duke University study (2011) and other studies documenting methane migration up to thousands of feet, as well as the potential for similar migration of fracking fluids, combined with the fault lines and porous geology of much of upstate NY (see 18-20 above) which may facilitate such migration, indicates that the minimum depth limit from the surface should be increased to at least 4000 feet.

36) Pace of permitting and drilling uncontrolled.

There is no requirement in the DSGEIS that drilling, if it happens, be done in a phased manner, with attention to consequences. Instead, drilling permits may be issued in large number and indiscriminately.

37) Current fracking additives receive less scrutiny than "green" additives.

All additives should receive the same high level of scrutiny.

38) Recycling of drilling and fracking fluids not required.

Another serious anomaly. Recycling should be absolutely required. We should note, however, that recycled fluids become more concentrated and toxic, and more difficult to dispose of.

39) $5000 bond for plugging wells insufficient protection.

$5000 is an insignificant amount, given the potential damages of spills and accidents which could run into many millions of dollars.

40) Inadequate setbacks, especially from homes and public buildings.

Current setbacks of a few hundred feet are totally inadequate. Given the potential of migration of gas and fluids for many thousands of feet, setbacks from homes and public buildings should be measured in miles, not hundreds of feet.

41) Setbacks from municipal water sources only temporary.

All setbacks should be permanent and minimums.

42) No certification/competency program for drillers.

Gas companies currently are not required to pass any sort of state certification in terms of training, bonding, equipment, testing, etc.

43) No requirement that drillers use the least toxic fracking fluids.

Use of the least toxic fluids should be prioritized at a minimum.

44) No provision for treatment facilities for flowback fluids.

Such facilities would be enormously expensive to be effective, and may not even be viable, but anything less would leave the public and the environment exposed to serious health and ecological risks.

45) Open pits still allowed for drilling cuttings.

No open pits should be allowed.

46) False distinction between primary and principal aquifers.

Primary and principal aquifers are not distinguished by any difference in the nature of the aquifers but by whether or not any particular aquifer serves a certain density of population. Privileging primary aquifers over principal aquifers in effect puts many if not most of the aquifers in NYS at greater risk of pollution from fracking, thus threatening much of what is arguably the most valuable resource in the state: clean water.

47) Municipal certification of local law compliance for all drillers not required.

Industries must be required to obtain certification of compliance from local authorities, and filing of such certification should be a prerequisite of any permit.

48) Drillers not required to comply with all local laws.

Gas companies must be required to comply with all local laws, including local laws prohibiting gas extraction and distribution within their jurisdictions, as well as road ordinances.

49) Overlapping leases compound drilling stresses.

Separate leases to drill in separate shale and other layers under the DSGEIS can overlap one another, creating potentially a far higher density of development and impacts than otherwise would be anticipated, with pipelines and other infrastructural elements needlessly duplicated.

50) Ozone effects ignored.

This is little discussion of ozone in the DSGEIS, even though ozone is one of the most widespread and important pollutants in the United States associated with fracking. Ozone can harm human health, reduce agricultural production, and injure a variety of plant species. Elevated ozone levels have been reported in fracking areas in Utah, Wyoming, Texas, and other Western states where it was unknown before fracking was introduced. According to the 9/5/2011 issue of the High County News, ozone level in gas field in rural Utah¹s Uintah Basin have surpassed federal levels 26 times in the first three months of 1022. Similar reports have been filed of high ozone levels related in fracking in the Dallas-Ft. Worth area in Texas.

VI. INADEQUACY OF DEC:

51) Conflicting missions to preserve and exploit the environment.

Another fatal weakness. The DEC cannot simultaneously pretend to protect the environment of NYS and also promote the oil and gas industry insofar as its activities include demonstrated harms to the environment.

52) Preferential and uncritical treatment of industry sources by the DEC.

The DEC received over 13,000 comments on the first draft of the SGEIS. Many of these comments were severely critical of that draft. The revised version appears to reflect few of those substantive criticisms, many of which are rehearsed in these comments. Industry sources, on the other hand, seem to be taken at face value, which independent studies, such as the 2009 Hazen and Sawyer report on the impacts of fracking on the NYC watershed, are largely ignored.

53) Failure of DEC to regulate past gas drilling.

The failure of the DEC to regulate past gas drilling and other aspects of the oil and gas industry is documented at toxicstargeting.com, among other places. Thousands of the incidents of spills, leaks, accidents, etc., are listed at toxicstargeting.com and remain unresolved.

54) Continued inability of DEC to regulate gas drilling.

Given the financial limitations of NYS government, cutbacks of staff within the DEC, and other constraints, it is difficult to see how the DEC can claim to regulate an industry of this scale and complexity. The DEP in Pennsylvania has had little success, and we can only expect the same from the DEC.