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Putting the sled before the reindeer: New York must not issue new fracking rules before completing health review

Kate Sinding

Posted November 27, 2012

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Earlier today, Governor Cuomo told a group of reporters that later this week the state will be filing for a 90-day extension to its initial Nov. 29 deadline for releasing proposed regulations for fracking in New York.  Because of an obscure provision of state law, this may mean that the state Department of Environmental Conservation intends to issue revised proposed fracking rules in the next couple of weeks.  [For procedure buffs who want to understand why, see note below.]

This would be a monumental error.

The governor has repeatedly sought to assure New Yorkers that he would let the state’s decision-making on fracking be governed by science. Most recently he vowed that he would not rush the newly-announced health review panel in its consideration of the serious risks posed by fracking. To issue revised rules now, when the health panel has only begun its review and the final environmental impact statement hasn’t yet been completed, would be the antithesis of the responsible governance Mr. Cuomo has been promising. The entire purpose of the health and environmental reviews is to inform strong, protective rules for how fracking would move forward if it is given the greenlight in the state. Issuing them prematurely undermines the reviews altogether.

It would also make the governor the Grinch who stole yet another Christmas from New Yorkers by delivering a set of unfinished revised rules – ones that don’t reflect the results of the on-going health and environmental reviews – and asking the public to weigh in on them over the holidays. This means fewer people are likely to be able to voice their concerns in time for the state to consider them as it finalizes the rules.

Luckily, there is a responsible, simple alternative. 

The state could simply let the deadline pass without filing an extension, which would allow them more than 90 days to complete the final rules.  This would ensure that they can consider the findings of the health panel and the final environmental review before making any decisions. This could mean incorporating measures to address serious identified health risks (unlike any rules that would come out now).  Or, it could mean concluding that the health and environmental risks of fracking are too great to move forward at all.  In that case, they wouldn’t need to ruin anyone’s holidays commenting on a set of revised rules that may turn out to be incomplete, or even unnecessary.

We’ve urged the state all along to take the time necessary to get this right. Rushing ahead with fracking now – with health and environmental reviews still pending – would be a foolish and irresponsible move on the Governor’s part.

[Note: The State Administrative Procedure Act requires that an agency issue revised regulations along with a notice of extension for revised rulemaking, and also requires a minimum 30-day public comment period, putting pressure on DEC to issue revised regulations early in the 90-day extension period.]

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Art KleinNov 27 2012 06:18 PM

We, New Yorkers, cannot allow any state action on Fracking before completion of a bone fide study on its total impacts on human health.

Michael BerndtsonNov 27 2012 08:00 PM

Great post. Cuomo now officially owns this mess. All the jesuitical casuistry (practical moral decision making based on situation) his father was purported to use never got passed onto the son. This decision proceeds and maybe gives cover for other states like Illinois, with development of the New Albany Shale. My gut says he's conflicted on the one hand and holding an open palm on the other.

If Cuomo needs some science to make a decision here's some for free:
* The recoverable amount of shale gas from the Marcellus is practically insignificant compared to New York State consumption rates. Its not worth turning agricultural and rural lands into industrial parks. The analogy would be why Illinois doesn't strip-mine the coal beneath the soil. The land is too valuable for farming. Same with New York State.
* The Utica Shale, as estimated by the USGS this October, is equally insignificant, again with respect to current consumption rates.
* Shale gas extraction is proving to be highly diffusion limited, where the economically profitable life of a well is closer to 7 years rather then 30 as previously assumed. The only way to recover the amount of gas as originally sold by developers is to mine the shale, crush the rock under an enormous laboratory hood and collect the released gas (that was snark). Even fracking the living bajeebus out of the shale is demonstrating to be technically and economically unfeasible.
* The Marcellus dips upward towards the north - so much of the proposed fracking in the Southern tier is depths shallower than 5000 feet. The potential for rogue vertical fracturing is much higher then Pennsylvania. And PA is seeing a whole bunch of surface methane seeps all over the State in regions under exploitation.
*There has been a total of ZERO field studies on rogue fractures from tight shale gas exploitation throughout the world. Only one paper looked into geophysical data from operators in several shale gas plays, ran some statistics and came up with about 5000 feet as a safe buffer.

Rant over. Sorry.

DanielNov 28 2012 06:55 AM

Seems correct except that the health review panel has been asked to provide their review by Dec. 3rd, thus it would be included in the revised proposed fracking rules and the public would be able to review it and comment accordingly.
There is nothing that has not been hashed over long before, if you had something new to bring to light it maybe different but its just the same five year old arguments time and time again, the public health risk is less from fracking then pollution breathed by standing on any NYC street corner bus stop and having highly toxic diesel fumes blow in your face, people cook indoors with natural gas but die from diesel fumes everyday, typically your type fight the little beast while the real threats go unchecked.

Dennis SzulinskiNov 28 2012 12:15 PM

You can't put $$$ ahead of the health of ground water and the people of New York State! You will have to live with the consequences of your actions for the rest of your life. Make the safe and sensible choice.

Cindy MalchowNov 28 2012 12:17 PM

Don’t set the clock for the fracking regulations until all studies are completed. No cart–before–the horse 90-day extension. Let the Fracking regulatory deadline expire and recommit to having science drive the process - not arbitrary timelines.

Susan SullivanNov 28 2012 04:49 PM

How about an economic study? Seems like its not needed..a no brainer. The price of natural gas is so low, that drillers are losing money on every well they drill. The do it because they made a deal with Wall Street that requires them to continue drilling. Otherwise they would have pulled out a year ago, and gone where there is oil. So tell me, how is New York State supposed to make money here? All I see is a phony "bubble" and environmental destruction. Or, is the Gov doing this for Wall Street? Hmm Thank you Kate, and NRDC for your good work.

Mary SweeneyNov 28 2012 08:33 PM

Michael: do you have a reference for the paper that came up with about 5000 feet as a safe buffer? (If I recall, the NYS DEC's SGEIS set 2000 feet as an appropriate buffer depth.)

John AndrewsNov 28 2012 11:55 PM

Block it! The points above and safety review are moot if the aquifer is damaged, and moot if companies continue NOT to disclose the content of the chemicals injected IN to the aquifer. The price of natural gas warrants no great need for more (moot on the capacity!) , and the low price also gives a window to bring alternatives online sooner rather than later. (Thank you Sandy for the climate lesson.) The gas wont go anywhere until the 1st Liq Gas port is completed in 10 years, hence the 10 years window to move to new fuels. If you disagree with the ten year window theory and the total ban in NYS (aquifer, toxins etc) proposal, ping me(:

Michael BerndtsonNov 29 2012 08:03 AM

For Mary's question in the comment above:

600 meters was the recommended distance between the depth of fracking and the overlying aquifer. So if I do my conversion right this time, this distance is 1,968.5 feet. You are correct. Alright! I read the paper 5 months ago and didn't bother to double check and just took a guess. Now about the information... This paper simply looked at geophysical data performed for shale gas production purposes and ran some statistics to say that only 1 percent of the vertical fractures went beyond that distance for several shale plays. This paper did not include any original research and did not look at shallow plays like the Marcellus in New York State.

Press release from and summary of paper findings.

"The new study, published in the journal Marine and Petroleum Geology, shows the probabilities of ‘rogue' fractures, induced in fracking operations for shale gas extraction, extending beyond 0.6 kilometres from the injection source is exceptionally low. The probability of fractures extending beyond 350 metres was found to be one per cent."

About the group in UK,

"Professor Richard Davies, Director of Durham Energy Institute, Durham University, said: "Based on our observations, we believe that it may be prudent to adopt a minimum vertical separation distance for stimulated fracturing in shale reservoirs. Such a distance should be set by regulators; our study shows that for new exploration areas where there is no existing data, it should be significantly in excess of 0.6 km. "

About the issue of rogue fractures from the University of Durham website:

Original paper from Durham University in UK, published in Marine and Petroleum Geology, April 2012:

The 600 meters from this paper spread throughout business and industry blogs and media. But like many research groups like UT Austin Energy Institute and SUNY Buffalo - this paper was essentially a literature survey, rather than on original and site specific research.

Sorry about my CRS disease.

MaryNov 29 2012 11:26 AM

I just wanted to post and thank the NRDC for its valuable work on this issue and so much more. I'm so grateful this organization exists. Many thanks to all of you working at NRDC for your continued commitment to the public good.

Jill ArbuckleNov 29 2012 02:16 PM

Dear Governor Cuomo: Don't be like Esau, who "for a single morsel, sold his birthright"
(Hebrews 12). The gas and dollars yielded will be but a temporary gain; the damage to New York's environmental birthright will be permanent.

Mary SweeneyDec 1 2012 11:41 PM

Michael--thanks very much for answering my question.

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