Walter Hang's Comments on DEC's Draft HVHF Regulations

January 11, 2013

Attn: Draft HVHF Regulations Comments
New York State Department of Environmental Conservation
625 Broadway
Albany, NY 12233-6510

Greetings:

I write to submit comments regarding the Department of Environmental Conservation’s (DEC) Revised Rulemaking Proposal for High-Volume Hydro-Fracturing (HVHF). With all respect, this draft proposal is ill-considered, riddled with technical flaws and extraordinarily poorly drafted. It also fails to address hundreds of gas and oil extraction hazards documented by DEC’s own data. Given its lack of integrity, I respectfully request that DEC’s draft proposal be rejected as a whole.

Request that the Premature and Improper HVHF Revised Rulemaking Proposal Not be Finalized by 2/27/13 Deadline

The Revised Rulemaking proceeding is intended to translate DEC's Final Supplemental Generic Environmental Impact Statement (SGEIS) into regulatory requirements. To date, no Final SGEIS has been adopted. As a result, the HVHF Revised Rulemaking Proposal is completely premature and improper. I request that it not be finalized by its 2/27/13 deadline.

Request that No Additional “Continuations” of the Proceeding be Submitted

The 2/27/13 Revised Rulemaking Proposal deadline resulted from DEC submitting a notice of continuation for a Rulemaking proceeding with an original deadline of 11/27/12. I request that no additional requests be submitted for a “continuation” of the HVHF Revised Rulemaking proceeding.

Request that No Final SGEIS or HVHF Revised Rulemaking Proposal Be Adopted Pending Full Public Participation for the DOH Review

DEC has pledged that no Final SGEIS or HVHF Revised Rulemaking Proposal will be adopted until a State Department of Health (DOH) Review of the “health impact analysis” presented in the Revised Draft SGEIS is completed. The DOH Review is being conducted with neither public notice of its intent/scope nor any period of public comment nor even a single public hearing to present testimony to Dr. Nirav R. Shah and the three outside experts involved with the Review.

I request that the DOH Review and the HVHF Revised Rulemaking proceeding be put on-hold until public notice, public comment and a public hearing are required regarding the “health impact analysis,” as well as the intent and scope of the DOH Review and how it would be conducted.

Government Officials Request that No Final SGEIS or a HVHF Revised Rulemaking Proceeding be Adopted Pending Full Public Participation for the DOH Review

A total of 127 government officials are signatories to a coalition letter which requests that Governor Cuomo immediately require full public participation for the DOH Review. That letter states:

“Until you have fulfilled our public participation requests, we ask that you:

a) Put on hold DOH’s “health impact analysis” Review/Assessment and

b) Make sure that DEC adopts neither a Final SGEIS nor a shale gas Revised Rulemaking proposal.”

See: http://www.toxicstargeting.com/MarcellusShale/cuomo/gov-coalition-letter...

Pursuant to this letter, no Final SGEIS or HVHF Revised Rulemaking proposal should be adopted pending full public participation for the DOH Review.

Chairs of Two Assembly Committees and a Commission Request Suspension of HVHF Revised Rulemaking Comment Period Pending Public Disclosure and a “Thorough Health Impact Review”

A letter was sent on 1/7/13 to DEC Commissioner Martens and DOH Commissioner Shah by three Assembly members: Robert Sweeney, Chair of the Environmental Conservation Committee, Richard N. Gottfried, Chair of the Health Committee and Charles Lavine, Chair of the Administrative Regulation Review Commission. Their letter states:

"We call on the administration to suspend the public comment period for the proposed revised regulations of high volume hydraulic fracturing until the state discloses all of its studies and analyses of fracking, as has been demanded under the Freedom of Information Law, and a thorough health impact review is completed and published (emphasis added)."

See: http://toxicstargeting.com/sites/default/files/pdfs/Assembly-Fracking-jo...

Pursuant to this letter, the HVHF Revised Rulemaking comment period should be suspended.

Request that No Final SGEIS or HVHF Revised Rulemaking Proposal Be Adopted Due to DEC’s Failure to Resolve a Total of 17 Key Concerns

DEC’s original draft SGEIS and its Revised Draft SGEIS received voluminous, scathing criticisms from the U. S. Environmental Protection Agency, academic researchers, physicians, scientists, environmental groups, elected officials as well as concerned citizens. To date, DEC has failed to address the vast majority of those key concerns in any meaningful way.

Even though DEC has not yet adopted a Final SGEIS, the HVHF Revised Rulemaking Proposal repeatedly refers to the implementation of a SGEIS. As a result, the shortcomings of DEC’s SGEIS proceeding are unmistakably revealed by its HVHF Revised Rulemaking proposal.

I request that neither the HVHF Revised Rulemaking Proposal nor a Final SGEIS be adopted due to DEC’s failure to address a total of 17 key concerns documented in a coalition letter with more than 22,000 signatories.

That letter requests that: “…the RD [revised draft] SGEIS must be immediately withdrawn and sent back to the drawing board because it does not resolve key concerns voiced by Region 2 of the Environmental Protection Agency (EPA), academic researchers, citizens and local officials.

See: http://www.toxicstargeting.com/MarcellusShale/cuomo/coalition_letter/2011

The HVHF Revised Rulemaking Proposal specifically fails to resolve the 17 concerns spelled out in Appendix A.

DEC’s Factually Incorrect and Deliberately Misleading Assertion

DEC continues to ignore a wide array of extensively documented incidents in New York related to gas and oil extraction activities that have caused: drinking water contamination, groundwater pollution, environmental contamination hazards and direct human exposures to toxic contaminants associated with gas and oil extraction activities. As a result, DEC fails to provide meaningful public health and environmental protections that New Yorkers can rely on to prevent shale gas extraction hazards if the practice is permitted.

The fatal flaw of all of DEC’s Environmental Impact Assessment and Revised Rulemaking Proposal efforts is that DEC continues to assert:

“As a result of New York's rigorous regulatory process, the types of problems reported to have occurred in states without such strong environmental laws and rigorous regulations haven't happened here. No known instances of groundwater contamination have occurred from previous horizontal drilling or hydraulic fracturing projects in New York State.”

This factually incorrect and deliberately misleading assertion is directly contradicted by extensive data publicly available from DEC and local health authorities in Chautauqua, Cattaraugus and Allegany Counties.

This false assertion is echoed by a secret Cuomo Administration Health Impact Assessment document which was leaked to the press and received extensive coverage:
http://www.toxicstargeting.com/sites/default/files/118765930-Hydraulic-F...

That document asserts that it would be "difficult or impossible" to obtain "objective quantitative estimates of potential health impacts" for High-Volume Hydraulic Fracturing (HVHF), but concludes "human chemical exposures during normal HVHF operations will be prevented or reduced below levels of significant health concern. Thus, significant adverse impacts on human health are not expected from routine HVHF operations."

The document adds: "When spills or accidents occur, the Department has identified numerous additional mitigation measures, including emergency-response planning, setbacks and buffers, so that significant exposures to people and resources on which they rely are unlikely (emphasis added).

This is pure fantasy based on DEC’s woefully inadequate regulatory efforts to date.

HVHF Revised Rulemaking Proposal is a Fantasy Wish List That Fails to Resolve DEC’s Documented Gas/Oil Extraction Regulatory Shortcomings

Against that background of decades of inadequate regulation of gas and oil extraction activities, the HVHF Revised Rulemaking Proposal is fatally flawed and must not be adopted due to the following specific problems:

1) 750-3.3 Prohibited Activities and Discharges

(a) The prohibitions in this section are in addition to those listed in section 750-1.3 of this Part, unless in conflict, superseded or expressly stated otherwise in this section. Well pads for HVHF operations are prohibited, and no SPDES permit will be issued authorizing any such activity or discharge:

(1) within 4,000 feet of, and including, an unfiltered surface drinking water supply watersheds;

(2) within 500 feet of, and including, a primary aquifer;

(3) within 100-year floodplains;

(4) within 2,000 feet of any public (municipal or otherwise) drinking water supply well, reservoir, natural lake, man-made impoundment, or spring; and

(5) within 2,000 feet around a public (municipal or otherwise) drinking water supply intake in flowing water with an additional prohibition of 1,000 feet on each side of the main flowing waterbody and any upstream tributary to that waterbody for a distance of one mile from the public drinking water supply intake; and

(6) within 500 feet of a private water well or domestic use spring, or water supply for crops or livestock, unless the Department has granted a variance from the setback pursuant to subparagraph 560.4(c) of this Title, adopted on XX, 20XX.

DEC should adopt 8,000’ Minimum Setback Based on its Own “Worst Case” Scenario Data

DEC fails to provide any rationale for adoption of its arbitrary proposed setback requirements. Based on DEC’s self-documented failure to prevent gas/oil extraction disasters, the proposed setback requirements are indisputably inadequate to safeguard public health and the environment.

DEC should adopt setback requirements that safeguard against “worst-case” scenarios documented by their own spills data or local Health Department information compiled pursuant to Memoranda of Understanding with DEC.

See: http://www.toxicstargeting.com/sites/default/files/pdfs/attachments.pdf

Based on publicly available data that I have reviewed, the minimum setback should be 8,000 feet based on an uncontrolled natural gas/oil release that reportedly impacted groundwater, surface water as well as residential homes. Other uncontrolled spill incidents reportedly migrated up to “1/2 Mile.”

Bixby Hill Road Incident Reportedly Polluted Homes and Water Wells 8,000 Feet Away

On 11/20/1996, an incident occurred in Freedom, NY involving a production well being drilled. Due to an uncontrolled natural gas/oil release that migrated approximately 8,000 feet, a number of residential homes and water wells were polluted.

See: http://www.toxicstargeting.com/sites/default/files/spill_9610441.pdf

The DEC spill report for this incident (9610441) states:

“DALE FOX DRILLING GAS WELL ON BIXBY HILL RD, FREEDOM. NATURAL GAS ESCAPED THRU FAULT IN SHALE, AFFECTED PROPERTIES APPX 1 & 1/2 MILES SW ON WEAVER RD. TOWN OF YORKSHIRE. GAS BUBBLING IN RON LEWIS’S POND. BUBBLING IN DITCH WEST SIDE OF WEAVER RD. 12 FAMILIES EVACUATED. GAS IN LEWIS’S BASEMENT (BUILT ON SHALE). FARMERS WELL IN BARN 11708 WEAVER RD (STEVE WOLDSZYN) VENTED TO OUTSIDE. GAS COMING UP THOU GROUND IN LEWIS’S YARD. MET WITH OFFICIALS AT DELIVAN FD. THEY WILL KEEP FAMILIES EVACUATED & CLOSE WEAVER RD UNTIL TOMARROW.”

I provide extensive documentation of this incident and the litigation associated with it, including:
• Bixby Hill Map
• Bixby Hill Road Spill Profile
• Incident
• Affidavit
• Summons
• Complaint
• Well Permit
• Application Receipt
• Drilling Permit Requirements
• Supplementary Drilling Conditions
• Verdict

See: http://www.toxicstargeting.com/MarcellusShale/bixby_road

Nichols Run Road Crude Oil Incident Reportedly Migrated 4,000 Feet

On 3/24/2005, a crude oil release occurred on Nichols Run Road that reportedly migrated for “4000’.”

The DEC spill report for this incident (0485712) states: “lead line broke cousing (sic) crude oil to flow into nichols run creek aoox (sic) 4000’ away”

See: http://www.toxicstargeting.com/sites/default/files/spill_0485712.pdf

Crude Oil Incident on Oregon Road in Olean, NY Reportedly Migrated “1/2 Mile”

On 10/31/2005, a crude oil release occurred on Oregon Road in Olean, NY that reportedly migrated for “1/2 mile.” See: http://www.toxicstargeting.com/sites/default/files/spill_0509188.pdf

The DEC spill incident report for this incident (0509188) states:

“200 barrels of of crude oil. Appears to be approx a couple of hundred gallons leaked from these barrels. Leak is running into a small stream that goes into the water filtration plant.”

“11/01/05 RMC/SITE. MET ECO PLEAKIS. FOUND CRUDE OIL IN TWO SMALL PONDS, POND EXIT, AND POCKETS OF OIL AND SHEEN IN STREAM FOR 1/2 MILE (emphasis added).

More than seven months later, the spill still had not been cleaned up:

“06/30/06 RMC/SITE. FACILITY NOT ACTIVE. PONDS HAVE SOME CRUDE ON THE SIDES, BUT LOOK BETTER THAN LAST INSPECTION. CONTAMINATED SOILS STILL ON SITE. PITS ARE SEEPING CRUDE OIL. PAST DISPOSAL TIME LIMIT(emphasis added). MATERIAL MUST BE SOLIDIFIED TO DISPOSAL. LETTER DISPOSAL BY 7/30/06.”

500-Gallons Crude Oil Incident on Nichols Run Road, Allegany, NY Reportedly Involved High-Pressure Water Injection

Perhaps the most troubling DEC-reported spill incident involved a 500-gallon crude oil release that was reportedly due to high-pressure water injection. According to DEC’s spill profile, “Crude and brine flowing into a pond on the side of a hill at 3 different locations.” “Problem may be injection wells causing well liquid to be released from an abandon (sic) well.”

This incident demonstrates that high-pressure injection of fluids can cause extensive toxic contamination hazards involving abandoned wells that have not been properly plugged.

As the map illustrates, the area where the spill incident was reported has hundreds of production wells that were never properly plugged.

See: http://www.toxicstargeting.com/sites/default/files/pdfs/Well_Map_Sp_Prof...

Part 555, Plugging and Abandonment

DEC has utterly failed to provide either an adequate plan to address a total of 5,046 known abandoned and unplugged gas, oil and other wells in New York State or any future unplugged well hazards. Known unplugged wells could cost up to several hundred million dollars to plug.

There could be tens of thousands of abandoned and unplugged production wells across areas of New York where gas, oil and solution mining activities have occurred. It is virtually impossible to detect these wells visually.

Until DEC has a meaningful plan to plug and clean up the pollution hazards caused by abandoned and unplugged wells, no shale gas extraction should be permitted. Those activities could exacerbate existing contamination problems thoroughly documented by DEC.

http://www.toxicstargeting.com/sites/default/files/DMR_redline_docs_1210...

http://www.toxicstargeting.com/sites/default/files/overview-map.pdf

http://www.toxicstargeting.com/MarcellusShale/documents/2012/10/26/dec-w...

Ludicrously Insufficient Plan for Managing Gas Drilling Wastewater Must be Rejected

Arguably the most serious inadequacy of the ludicrously insufficient HVHF Revised Rulemaking Proposal is its proposed gas drilling wastewater management plan. I request that this proposal be completedly rejected.

Gas drilling wastewater is known to be highly contaminated with a broad spectrum of toxic metals, petroleum hydrocarbons and radionuclides, but the Revised Draft SGEIS, the draft SGEIS and all other available documents from DEC and DOH fail to characterize all of the toxic constituents of gas drilling wastewater generated by conventional drilling or horizontal drilling combined with hydraulic fracturing of tight shale formations. Until this data gap is plugged, no shale gas extraction should be permitted in New York.

DEC proposes to manage gas drilling wastewater in ways that would undoubtedly cause environmental and public health hazards. This is beyond dispute because DEC simply proposes to continue existing gas drilling wastewater practices that are known to have caused massive, well-documented problems.

Ban Gas Drilling Wastewater Dumping for Dust Control, De-icing and Roadbed Stabilization

DEC proposes to allow contaminated gas drilling wastewater to be discharged into the environment without any treatment through its Beneficial Use Determination (BUD) program. Dumping polluted gas drilling wastewater on roads to control dust, melt ice and snow or stabilize road beds should have been outlawed decades ago.

Ban Gas Drilling Wastewater “Recycling” by Rescinding DEC’s Regulatory Exemption for Gas Drilling Wastewater Injected Into the Ground for “Production” Purposes

Gas drilling wastewaters, including "flowback" as well as "brine" or "produced water," are currently exempted from “GA” effluent limitations designed to safeguard drinking water drawn from the ground in New York. The HVHF Revised Rulemaking Proposal fails to eliminate this exemption even though gas drilling wastewater is documented to contain up to 413,000 parts per million of Total Dissolved Solids (TDS), 107,000 parts per billion of Total Petroleum Hydrocarbons in the diesel range as well as benzene up to 660 parts per billion. Those pollutant concentrations would vastly exceed applicable GA effluent limitations. For example, benzene is only allowed at one part per billion in permitted groundwater discharges.

Ban Gas Drilling Wastewater Dumping into POTWs

DEC proposes to allow gas drilling wastewater to be discharged into Publicly Owned Treatment Works (POTWs). These facilities are neither designed, constructed or maintained in any way to remove or render harmless the toxic chemicals documented to be present in gas drilling wastewater.

During the fall of 2008, discharges of gas drilling wastewaters into POTWs along the Monongahela River resulted in contamination of public drinking water drawn from that historic body of water. A total of more than 850,000 local residents ultimately could not drink public water supplied by local systems in arguably the biggest drinking water contamination disaster in American history.

See: www.toxicstargeting.com/sites/default/files/pdfs/docs_110303.pdf

Given that history of government failure, it would be irresponsible for DEC to allow gas drilling wastewaters to be discharged into POTWS in New York.

Requiring pretreatment, mini-pretreatment and headworks analyses are insufficient to prevent POTW worker hazards, contaminant “pass-through” into receiving bodies of water or concentration of toxics in biosolid residuals generated by the “secondary treatment” processes used by virtually all POTWs in New York.

New York and the national as a whole utterly lack “categorical” pretreatment standards for gas drilling wastewater. Until the full spectrum of toxic constituents in gas drilling wastewater has been documented and comprehensive studies have determined that those contaminants does not cause “pass-through,” worker hazard and biosolid concentration, no gas drilling wastewater must be allowed to be discharged into POTWs.

EPA is in the process of adopting “categorical” pretreatment standards, but that proceeding might not be completed for years to come. EPA has provided extraordinarily stringent guidelines with regard to avoiding gas drilling wastewater hazards. DEC’s proposal utterly fails to fulfill those requirements.

HVHF Revised Rulemaking Proposal Does Not Fulfill Proposed EPA Requirements

EPA reportedly requires a thorough "discharge characterization," and notification "before the POTW may accept HFFW [hydraulic fracturing flowback water, not in the original]." EPA also notes "Because there is a significant possibility that SGE [shale gas extraction] wastewater may 'pass through' the POTW, causing the POTW to violate its permit, cause 'interference' with the POTW's operation, or contamination of biosolids, acceptance of the waste is not advisable unless it's effects on the treatment system are well understood and the wastewater is not reasonably expected to cause pass through or interference."

EPA has yet to enforce any of those requirements in New York. Gas drilling wastewater has been discharged into a wide variety of local POTWs without systematic disclosure of a) where the gas drilling wastewater originated, b) what types of gas drilling wastewater components it contained and c) all the toxic constituents that were present and in what concentrations.

Even though EPA's documents focus on Marcellus Shale horizontal hydrofracturing flowback, the agency earlier expressed grave concerns about "brine" or "produced water" and recommended regulatory efforts to address high total dissolved solids (TDS), petroleum hydrocarbons and radionuclides. A comprehensive gas drilling wastewater regulatory program is clearly warranted without further delay.

EPA also reports that
a) some gas drilling wastewater components are "not significantly removed by most conventional POTW treatment systems;"

b) some gas drilling wastewater components "may result in POTW process inhibition in activated sludge, nitrification, and anaerobic digestion processes."

c) "...some of the constituents in oil and gas extraction waste, such as metals, can precipitate during the treatment process and contaminate biosolids which may require expensive decontamination of biosolids drying beds or change the chosen method of use or disposal."

d) "Bromide, which can be present in SGE wastewater in significant concentrations, has the potential to be present in POTW effluent as a disinfection byproduct and may cause an increase in whole effluent toxicity21."

Finally, EPA reports in a 4/7/11 letter that: "In cases such as New York, where the state is the permitting authority and EPA is the approval authority for pretreatment, the POTW must submit the required information to both agencies. We are working with New York State to clarify this requirement through the State Pollutant Discharge Elimination System (SPDES) permit program [emphasis added]."

This was one of the specific concerns identified by EPA in its 12/30/09 comments to DEC regarding the shortcomings of the draft SGEIS. EPA wrote: "On Page 5-121. The document states, 'Ultimately, NYSDEC needs to approve such analysis and modify State Pollution Discharge Elimination System (SPDES) permits as needed to insure water quality standards in receiving waters are maintained at all times.' For approved pretreatment programs, EPA also needs to approve the analysis [emphasis added]. This should be acknowledged in the dSGEIS."

See page 9 of the PDF posted at: http://www.toxicstargeting.com/sites/default/files/Marcellus_dSGEIS_Comm...

DEC must not adopt any HVHF Revised Rulemaking Proosal until it has responded to the below-documented EPA concerns

EPA Document Excerpts

"For SGE [shale gas extraction] wastewater, that discharge characterization should include the concentrations of total• dissolved solids, specific ions, such as chlorides and sulfate, specific radionuclides, metals,and other pollutants that could reasonably be expected to be present in wastewater from a well. In addition to the ions, radionuclides, and metals that can be expected to be present in wastewater produced from a well, the characterization should include all chemicals used in well drilling, completions, treatment, workover, or production, that could reasonably be expected to be present in wastewater [emphasis added]. Pursuant to the permit, this information must generally be reported to EPA and/or the State program before the POTW may accept the HFFW. "Adequate notice" is meant to provide the EPA (or the state NPDES permitting authority) with enough time to determine if the POTW NPDES permit needs to be modified in order to address potential effects due to the potential new indirect discharger.

Constituents in SGE wastewater such as total dissolved solids (TDS) have been found to be present at concentrations ranging from 280 mg/l to 345,000 mg/1. 19 Chloride has been reported in concentrations up to 196,000 mg/1.20. TDS is not significantly removed by most conventional POTW treatment systems; therefore, pretreatment of the wastewater would be required prior to discharge to the POTW. However, very little comprehensive data have been collected nationwide on TDS treatment capability at POTWs. Common constituents of TDS include calcium and magnesium (also a measure of"hardness"), phosphates, nitrates, sodium, potassium, sulfates, cWoride, and even barium, cadmium, and copper. A literature data search revealed that some of these individual constituents of TDS may result in POTW process inhibition in activated sludge, nitrification, and anaerobic digestion processes. POTWs may exhibit these process inhibitions from these individual constituents at concentrations that are several magnitudes lower than the composite TDS found in: SGE wastewater (example: sulfate at 400-1000 mg/l disrupting anaerobic digestion processes; chloride at 180 mg/l disrupting nitrification processes21 ). High concentrations of chlorides, such as in Marcellus SGE wastewater, can disrupt biological treatment units [emphasis added]. Some POTWs that had previously accepted oil and gas extraction waste through their pretreatment programs experienced operational problems due to high concentrations and spikes in concentrations of TDS.22. In addition, some of the constituents in oil and gas extraction waste, such as metals, can precipitate during thetreatment process and contaminate biosolids which may require expensive decontamination of biosolids drying beds or change the chosen method of use or disposal [emphasis added]. Bromide, which can be present in SGE wastewater in significant concentrations, has the potential to be present in POTW effluent as a disinfection byproduct and may cause an increase in whole effluent toxicity21.

Because there is a significant possibility that SGE wastewater may "pass through" the POTW, causing the POTW to violate its permit, cause "interference" with the POTW's operation, or contamination of biosolids, acceptance of the waste is not advisable unless it's effects on the treatment system are well understood and the wastewater is not reasonably expected to cause pass through or interference. POTWs cannot accept Marcellus wastewater if acceptance of the wastewater would result in violations of the POTW's permit, the POTW's requirement under 40 CFR 403.5(c) to develop and enforce local limits to implement the general and specific prohibitions of403.5(a)(l) and (b), or contamination that interferes or disrupts biosolids processes, uses, or disposal. NPDES permits for discharges from POTWs to water of the U.S. also must meet applicable water quality-based requirements that are discussed in more detail in question number 21.

Radionuclides in Marcellus SGE wastewater also pose a challenge for POTWs. Radionuclides are discussed below in the response to question number 19."
Finally, the HVHF Revised Rulemaking Proposal fails to impose strict liability and take steps to require private right of action and financial surety for potential victims of shale gas extraction activities or to require clean up of pollution hazards.

In response to these concern DEC states: “The suggestion in the comment is beyond the scope of the proposed rulemaking.” DEC also repeatedly states that legislative action would be required to revise the scope of DEC’s authorities with regard to this and many other issue that have been targeted for concern.

That lame response speaks volumes about DEC’s original assertion that its 1992 Generic Environmental Impact Statement (GEIS) is entirely sufficient to regulate shale gas extraction with a mere “Supplemental” expansion of its permit guideline requirements.

After thee years of relentless criticism of DEC’s draft SGEIS, its Revised Draft SGEIS and its HVHF Revised Rulemaking proposal, DEC should end all of these fatally flawed proceedings and start all over again with a new GEIS. Anything less would subject New Yorkers to irreparable environmental and public health hazards. It would be irresponsible of DEC to continue to ignore the documented shortcomings of its failed regulatory efforts.
Very truly yours,

Walter Hang

Appendix A

1. Afford equal health protection to all New Yorkers living above the Marcellus Shale formation. The RD SGEIS proposes to ban Marcellus Shale horizontal hydrofracturing in the New York City and Syracuse watersheds and above State Lands and primary aquifers (at least temporarily). If horizontal hydrofracturing is not allowed in those areas, it cannot be considered “safe” for other areas of New York.

2. Resolve mortgage lending problems associated with gas leasing. The RD SGEIS ignores gas leasing impacts on mortgage lending documented by lenders, including lender reluctance to secure mortgage loans with properties with gas leases; concerns about property valuation and marketability; "set-back" issues regarding the sale of mortgage loans on the "secondary" market and potential voiding of title insurance. See: http://www.toxicstargeting.com/MarcellusShale/alerts/natural-gas-leasing...

3. Assess horizontal hydrofracturing conducted at the same well pad in both Marcellus Shale and underlying Utica Shale. The RD SGEIS does not address this potential practice, but EPA views it as a matter of grave concern. See: http://toxicstargeting.com/sites/default/files/pdfs/map-email-responses-...

4. Ban gas drilling wastewaters from being discharged into Publicly Owned Treatment Works designed for sanitary waste or adopt strict pretreatment standards. POTWs are not designed, constructed or maintained to remove or break down the high levels of Total Dissolved Solids (TDS), toxic petroleum constituents and radionuclides documented in gas drilling wastewater. EPA reports that shale gas extraction wastewater contaminants may "'pass through' the POTW, causing the POTW to violate its permit, cause 'interference' with the POTW's operation, or contamination of biosolids..." Pennysylvania has banned this practice. EPA has just begun the process of adopting national pretreatment standards for gas drilling wastewaters. See: http://www.toxicstargeting.com/MarcellusShale/documents/letters/2011/06/...

5. Ban toxic gas drilling wastewater from being recycled as hydrofracturing or drilling fluid. Gas drilling wastewaters, including "flowback" as well as "brine" or "produced water," are currently exempted from “GA” effluent limitations designed to safeguard drinking water drawn from the ground in New York. The RD SGEIS fails to eliminate this exemption even though gas drilling wastewater is documented to contain up to 413,000 parts per million of TDS, 72,600 parts per billion of Total Petroleum Hydrocarbons in the diesel range as well as benzene up to 660 parts per billion. Those pollutant concentrations would vastly exceed applicable GA effluent limitations. For example, benzene is only allowed at one part per billion in permitted groundwater discharges.

6. Ban land-spreading of toxic gas drilling wastewaters. DEC allows gas drilling brine to be spread on land for dust control, roadbed stabilization and melting ice and snow. EPA recommended: "A program must be implemented to properly manage the elevated radionuclide concentrations in the brine to protect the worker health, public health, and the environment." The practice of gas drilling wastewater spreading must be halted.

7. Resolve inadequate DEC staffing problems. The infamous memo that caused DEC Commissioner Grannis to be fired noted: "Many of our programs are hanging by a thread. The public would be shocked to learn how thin we are in many areas;" The memo further noted: "While the risks to human health have already increased due to cuts to certain environmental quality programs, and especially to enforcement activities related to pollution sources, further cuts would result in unacceptable risks to New Yorkers and unacceptable liability for New York State government (emphasis added)." Governor Cuomo cut DEC’s budget in 2011. See: http://www.toxicstargeting.com/sites/default/files/dec_dobletter_Grannis...

8. Identify New York areas prone to higher seismic activity and propose measures to prevent earthquakes potentially associated with horizontal hydrofracturing. EPA reported that: "The dSGEIS notes that the State of New York is fairly active seismically. EPA recommends that NYSDEC limit the number of wells in areas of higher seismic activity, or require additional protective measures and monitoring."
See: http://www.toxicstargeting.com/MarcellusShale/documents/comments/2009/31...

9. Adopt comprehensive radionuclide standards to safeguard gas drilling workers, public health and the environment. EPA notes that "radionuclide concentrations specified in the DSGEIS represent elevated radionuclide concentrations and need to be handled, managed, and disposed of appropriately to avoid unnecessary exposure to workers, the public, and the environment." EPA also determined that "such concentrations are considered elevated and may pose unacceptable human health risk mainly via external exposure, inhalation of radon and thoron decay products, and to some degree via inadvertent ingestion."

10. Resolve EPA concerns about inadequate protection of Ecosystems and Wildlife. EPA reported: "This section [7.4] is incomplete, and does not account for the changes in the ecosystems in New York State since the preparation of the 1992 GEIS. For example, more animals and plants are on federal and state endangered species lists, habitats of all kinds are more fragmented, invasive species have impacted existing animal and plant populations, and climate change has impacted plant and animal ranges and migrations.”

11. Assess "cumulative impacts" on a comprehensive basis. EPA notes that it is "concerned that cumulative and indirect impacts need to be more thoroughly discussed in the dSGEIS. Even with its generic format, the EIS should discuss the impacts that may result from past, present, and reasonably foreseeable future projects as well as those impacts associated with drilling and hydrofracturing that may occur later in time and/or further from the immediate project site."

12. Update the 1992 GEIS. EPA notes that it is "concerned that over the past 17 years since the 1992 GElS was written, the 'existing' environment and conditions in New York State have changed sufficiently that using the information from that report as a baseline for the dSGEIS will not take into account the cumulative impacts from habitat fragmentation, population increase, and climate change that may have occurred during that time."

13. Require compliance with a critical EPA policy change regarding air quality assessment. Shortly after the draft SGEIS was released on 9/30/09, EPA adopted a major new policy regarding New Source Review (NSR) and Title V permitting programs pursuant to the Clean Air Act. This reversed the EPA policy in effect when the draft SGEIS was prepared. The new policy changes the requirements for "source aggregation" for air permitting programs. According to a DEC Powerpoint slide: "Since level of aggregation must be case by case, SGEIS cannot provide definitive answers (emphasis added)." See: http://www.nytimes.com/gwire/2009/10/14/14greenwire-epa-tosses-bush-era-... and http://toxicstargeting.com/sites/default/files/pdfs/powerpoint_foil-4pg.pdf

14. Eliminate DEC’s current hazardous waste regulatory exemption for gas drilling wastes and impose strict liability for cleaning up gas drilling pollution hazards.

15. Require the New York State Department of Health to share co-lead agency status with DEC and assess health impacts on a comprehensive basis.

16. Require immediate disclosure of uncontrolled gas drilling pollution releases, establish a dedicated fund to remediate gas drilling hazards and require gas drilling firms to provide financial surety for remediating problems by posting bonds or providing insurance coverage.

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Walter Hang's Comments on DEC's Draft HVHF Regulations

Appendix A

DEC’s Unplugged Abandoned Wells Database & Overview Map

Marcellus Shale Interactive Map

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Signatory Count

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