NY Senate Tosses Environmental Bills Under the Frack Truck

 

Three months ago, on March 6, the New York State Assembly voted 103 to 40 to extend the moratorium on high-volume hydraulic fracturing until May 2015. A week later, Senator Tony Avella  introduced a companion bill (S4236) into the NY Senate. It was referred to the Senate’s twelve-member Environmental Conservation Committee, where it’s languished ever since. And it’s not the only bill stalled in committee; there are at least five other drilling-related bills that have not been allowed to the floor for discussion and a vote:

Senator David Carlucci  introduced Senate bill 4046 that would prevent the commissioner of Environmental conservation from finalizing and publishing the revised Supplemental Generic Environmental Impact Statement (SGEIS) for at least 2 years - and requires completion of the EPA fracking study and health studies. 

Avella introduced Senate bill 673 which would amend the environmental conservation law by prohibiting hydraulic fracturing altogether and outlaw disposal and/or processing of any drilling fluids or drill cuttings in New York. That includes: drilling mud; chemical additives and frack fluid; flow back fluids returning to the surface after the hydraulic fracturing process; and any other residual liquids involved in drilling.

There are at least three bills that deal specifically with drilling wastes. Senate bill 674 would require hazardous wastes produced from oil and gas activities to be treated the same as hazardous wastes produced by other industries. Currently, Department of Environmental Conservation (DEC) regulations exempt “drilling fluids, produced waters, and other wastes associated with the exploration, development or production of crude oil, natural gas or geothermal energy” from being regulated as hazardous waste. 

Senator Martin Dilan's bill (S 408) would prohibit radioactive or hazardous waste disposal or transfer stations from being sited within 1500 feet of school property. 

And just a month ago Senator Cecilia Tkaczyk introduced Senate bill 5123 that would prohibit the transportation of any waste product or byproduct from fracking operations.  

With less than two weeks left in the session it’s unlikely that any of these bills will be brought to a vote. Neither Avella nor Tom O’Mara, both of whom sit on the Senate Environmental Conservation Committee, responded to repeated requests for comments on why they’re keeping environmental legislation from reaching the floor. But Xavier San Miguel, director of communications for Avella, chalks it up to a pro-fracking Republican conference. 

“Dean Skelos and Jeff Kline control what comes to the floor for a vote, and they don’t seem inclined to promote these bills,”  San Miguel said. And that seems odd, seeing how Kline is cosponsoring two of the bills.

With 30 Republicans and 33 Democrats, one might think the Democrats could generate enough support to push these bills through. But back in December 2012, five Democrats formed an Independent Democratic conference and defected to join the Republicans, forming a coalition. They struck a deal allowing two leaders: Republican Dean Skelos and Democrat Jeff Klein. This move denied the traditional Democratic conference from taking majority control, and gives Skelos and Klein great power over which bills get a vote – and which bills get tossed under the frack truck.

Small Towns Embrace Pro-Drilling Resolutions

Candor, NY

Last month two towns to the west of me, Van Etten and Spencer, NY passed resolutions stating that the towns supported gas drilling. Van Etten’s resolution was simple – a single sentence stating that the town has “decided to allow gas drilling in the Town of Van Etten.” Spencer’s is lengthier, commending the state’s leadership in developing a “comprehensive” statewide drilling program, stating their confidence in the state’s development of “safe” and “responsible” gas development, and all but promising to ignore any citizen petitions for moratoria or bans.

It is, word for word, the same resolution that will be considered by our town board at their next meeting on June 12. It’s already on the agenda: “Review/approve Planning Board recommendation on a resolution supporting natural gas development in the Town of Candor”. But, unlike previous resolutions, this one has not been posted for citizens to read prior to the meeting.

Last month our town supervisor, Bob Riggs received an email from the Tioga County Landowners Group urging the town to adopt the “pro-drilling” resolution.

The thing is, Riggs said in a phone interview Monday morning, while he feels that the board is mostly pro-drilling, he thinks this resolution is being rushed. The driving force, he says, is a news article in which Department of Environmental Conservation (DEC) Commissioner Joe Martens was quoted as saying that local land-use rules will “continue to be a consideration” in the permitting process for gas drilling.

Riggs admitted that the only ones who contacted him about considering the resolution were the head of the landowner’s group and another individual who doesn’t live in the town.

When asked whether the town is ready for drilling, Riggs noted that Candor does have a road use agreement and that the planning board has been reviewing a wellhead protection plan for the village. But the town has not yet completed a checklist of actions that will help prepare for industrialized drilling. That checklist comes from TING, a non-partisan county taskforce that developed a thick binder of information meant to guide towns through actions that will protect the town’s infrastructure and environment once drilling commences.

People move here for the small town, rural atmosphere

Neither has the town determined whether drilling is compatible with the Town Comprehensive Plan. That plan seeks to preserve the rural character of Candor, encourage small business and light industry, and maintain or improve property values – goals that conflict with large-scale industrialized shale gas drilling.

A few towns to the west, another town council is considering the same resolution. Theirs came in a thick envelope from Southern Tier Economic Growth, a Chemung county economic council that in 2011 received close to 75% of its funding from taxpayer dollars. And yes, the resolution was, word for word, identical to the one that Candor is considering; that Spencer passed; that went out to every town in Steuben county.

A council member in one of the Chemung county towns currently considering the resolution speculates that this resolution as a response to the growing movement to ban drilling. Towns don’t want to become embroiled in lawsuits by landowners angry that they can’t lease their land. On the other hand, he said, “if it can be proven that this resolution encourages drilling to come into a town, and if problems result, then towns could be sued for that. This resolution opens towns up to more lawsuits than if we do nothing.”

The other problem he sees is that people voting on this resolution have a vested interest in seeing drilling happen in their town. “Elected officials who have leases should not be voting for this kind of resolution,” he said. “Indeed, they should recuse themselves from voting on any of these issues where they have a financial stake in the outcome.”

Still Time to Comment on DRBC Proposed Drilling Rules

The Delaware River originates near Hancock, NY and travels 330 miles through Pennsylvania, New Jersey and Delaware before spilling into the Delaware Bay. The river basin drains 13,539 square-miles of watershed, some of it providing the drinking water for millions of people in New York City and along the east coast.

Like the Susquehanna River Basin Commission, the Delaware River Basin Commission (DRBC) regulates water withdrawals from the Delaware River and its tributaries. And just like its sister-commission, DRBC is made up of state governors and a federal representative from the United States Army Corps of Engineers.

At the beginning of last month DRBC released draft regulations that, they say, are intended to protect minimum stream flows, provide a record of water transfers, and ensure that downstream water resources are not adversely affected.

The new rules also regulate how drilling waste fluids and other wastewater may be reused in gas development projects. Proposed regulations will permit the use of flowback and production fluids (brine), mine drainage wasters and treated wastewater for use in drilling gas wells. But, says DRBC, these “recycled” fluids will be monitored closely, using a system of manifests for each load shipped.

A quick review of DRBC’s proposed rules indicate they will restrict drilling in flood hazard areas, on steep slopes and in areas deemed critical habitats for threatened and endangered species. They will establish minimum setbacks from rivers, wetlands and lakes as well as domestic water supplies and homes – and they call for pre-and post-drilling monitoring of surface and groundwater near well pads.

Before trucking drilling waste fluids to a public wastewater treatment facility, drillers will have to demonstrate that acceptance of their waste will not interfere with the facility’s operation. They must also show that effluent discharged from these facilities will not exceed Safe Drinking Water Act standards.

Drillers will have to pay to play, too. Under the proposed rules, drillers in the Delaware River Basin will need to post a $125,000 bond for each well to cover the costs of plugging, abandonment and restoration and the remediation of any pollution from gas development activities. That’s a big drop from the $5 million initially proposed, but still a lot higher than the $2500 Pennsylvania drillers are required to post for a single well.

Good as they sound, these regs are a bit premature. Why didn’t DRBC wait until they complete their study on the cumulative impacts of drilling in the basin before offering a regulatory pathway to drilling permits? Why not wait for NY Department of Environmental Conservation to complete their review of high volume horizontal fracking before releasing the regs?

The public has until March 16, 2011 to comment on the proposed rules, and DRBC has promised to schedule three public hearings (dates still to be announced). Comments may be submitted using a web-based form on the DRBC web site here.

Mail written comments to Commission Secretary, DRBC, P.O. Box 7360, 25 State Police Drive, West Trenton, NJ 08628-0360. DRBC will also accept written comments at the public hearings.