In the last issue of this magazine we published an Article on “The Pennsylvania Experience With Methane Extraction, or Fracking” by Jim Morris. For a related assessment of the failure of oversight and enforcement over the fracking industry, in Pennsylvania and elsewhere, see the special report, “Puny fines, scant enforcement leave drilling violators with little to fear,” the title of which provides the assessment. See Sources.
In this Report, we explore the State of New York’s assessment of the possibilities of fracking, including whether to permit fracking in New York (NY). See entry for “Hydraulic fracturing” in the iePEDIA section of irish environment.
In September 2011, the New York Department of Environmental Conservation (DEC), the state agency responsible for regulating fracking and other mineral extraction processes, published a PRELIMINARY REVISED DRAFT Supplemental Generic Environmental Impact Statement On The Oil, Gas and Solution Mining Regulatory Program. (Note 1) Labeling the document as a “preliminary” “revised” “draft” “supplemental” “generic” environmental impact statement (EIS) suggests the tortured path for this EIS, and perhaps the political pressures on the decision whether to allow fracking in NY.
In NY, and the United States generally, an initial Environmental Assessment (EA) is required to determine whether a particular action would significantly affect the environment. If it will, then a more detailed Environmental Impact Statement (EIS) is required. An EIS includes a description of the action, including its need and benefits; a description of the environmental setting and areas to be affected; an analysis of all environmental impacts related to the action; an analysis of reasonable alternatives to the action; an identification of ways to reduce or avoid adverse environmental impacts. The EIS is available to the public for information and comment. The European Union has similar requirements through its Environmental Impact Assessment (EIA) and related Directives.
A ‘generic” EIS (GEIS) is used to consider broad-based actions or actions with wide application, such as when an agency is considering a new program or policy, in contrast to an EIS that is used to assess impacts from site or project specific actions.
The GEIS for fracking was first issued in September 2009. After public hearings and thousands of comments from the public and political bodies, DEC decided that further review was required to assess the impact of fracking on certain watersheds, including those serving as the drinking water supply for New York City and the City of Syracuse.
On December 13, 2010, the then-Governor David Patterson issued an executive order banning fracking in NY until the state completed a thorough review of the industry to determine whether fracking could be done without harming the environment and putting people’s drinking water at risk. On taking office in January 2011, Governor Cuomo continued the Executive Order and ordered DEC to publish a Revised Draft Supplemental GEIS by June 2011.
The September 2011 GEIS is over 1,000 pages and it contains voluminous and useful information and data on all aspects of fracking, including the nature of the drilling, fracking and production of gas, the geology of NY, what additives are used, what are the potential impacts to water, air and GHG emissions, and ways to mitigate any impacts. Often the GEIS identifies potential problems and then indicates existing regulations that will be followed to avoid those problems or proposes new permit requirements or regulations to mitigate any adverse impacts. Determining whether the State has comprehensively identified all the problems from fracking and whether the proposed mitigation measures are adequate requires an exhaustive analysis by experts in the field of gas exploration, drilling and production, particularly using high volume hydraulic fracturing. For our purposes, we will summarize the most important issues raised by fracking and how the State handles those issues.
The DEC has not yet issued a final determination on whether to allow fracking in NY, and the public has the right to make submissions in response to the draft GEIS, until January 11, 2012, and DEC is obliged to take these comments into account. Yet it seems clear from the initial GEIS that the State has already decided that fracking will proceed in New York and that the only remaining questions are where and under what restrictions. (Note 2) We will focus here only on these two questions: where and what conditions.
Where will fracking be allowed
Following the publication of the initial GEIS in 2009, there was a general outcry against allowing fracking in areas that would threaten New York City’s (NYC) drinking water supply. The critical change from the initial GEIS and the current Draft Revised version is that fracking no longer will be allowed in areas that would threaten NYC’s or the City of Syracuse’s drinking water as well as other sensitive areas of NY. Specifically, DEC proposes that the following areas should be off-limits to fracking: the watersheds associated with unfiltered water supplied to the New York City and Syracuse areas; reforestation areas; wildlife management areas; state parks; and “primary” aquifers as defined by State regulations; and, additional setback and buffer areas. Forest Preserve land in the Adirondacks and Catskills is already off-limits to natural gas development pursuant to the New York State Constitution.
For state parks and other sensitive ecosystems, fracking is banned because of the volume of truck traffic, surface disturbances from well pads, roads and pipeline, and noise and other impacts that would have significant adverse impacts on habitats and recreational uses of the land. At 6-86 to 6-88.
To understand why DEC is proposing to ban fracking in certain watersheds, a brief discussion of NYC’s drinking water sources is in order. NYC and several surrounding counties obtain their drinking water from the “NYC Watershed” which is comprised of a number of reservoirs and lakes north of NYC on both the east and west sides of the Hudson River. This watershed supplies 1.1 to 1.3 billion gallons of water each day. About 10% of the watershed is located east of the Hudson River in the Croton area; 90% is located west of the Hudson, where fracking is possible.
The US Environmental Protection Agency (US EPA) is responsible for regulating the watershed and federal law has imposed very strict requirements to assure that the NYC water supply remains drinkable without constructing filtration plants pursuant to a Filtration Avoidance Determination. For the water from the Croton portion of the watershed, east of the Hudson, US EPA has determined that the water supply is polluted and must be filtered. NYC is currently constructing a very large filtration plant to treat the Croton portion of the watershed at a cost of $3 billion. To date the NYC watershed west of the Hudson has avoided a filtration system the costs of which would be astronomical. Extraordinarily stringent levels of treatment are imposed on any discharges into that watershed.
In assessing the potential impacts from fracking on the NYC and the City of Syracuse watersheds, DEC determined that “the critical remaining potential for impairment of these two unfiltered water supplies stems from human activities that place contaminants on the ground that can then be washed into reservoirs and tributaries via storm water runoff, or flow into them from contaminated groundwater.” At 6-44. DEC then concluded in the GEIS that: “The Department finds that high-volume hydraulic fracturing activity is not consistent with the preservation of the New York City and Syracuse watersheds as unfiltered drinking water supplies. Even with all of the criteria and conditions identified in the Revised Draft SGEIS, a risk remains that significant high-volume hydraulic fracturing activities in these areas could result in a degradation of drinking water supplies from accidents, surface spills, etc.” At 6-50 (Emphasis added).
Certainly the most curious, and perhaps the most loaded, word in the over 1,000-page document is the “etc.” at the end of the quoted sentence above, where DEC states its reasons for putting fracking off limits in the NYC and Syracuse watershed. See, also, page 18. The word, “etcetera,” abbreviated as “etc.”, means “And the rest, and so forth, and so on.” (Oxford Engish Dictionary). What is encompassed by that etcetera in this critical explanatory sentence remains unclear. The weak grammatical and stylistic ending undermines the rationale for the environmental grounds on which the State has decided to protect certain areas and not other areas. It is as if DEC was unsure of why it was banning fracking in the big city watersheds at the same time it was allowing fracking to go forward in other watersheds. Many others are also unsure and those who live in areas not subject to the ban must wonder why they are not covered by the ETC.
DEC also proposes banning fracking in a 4,000 foot buffer area surrounding these watersheds.
This analysis and conclusion are perhaps the most important determinations in NY’s GEIS for any consideration of fracking in Ireland. Ireland’s water supplies are now diminishing in the east and further reductions in water supplies likely will follow the global and Irish climate changes from GHG emissions. Dublin and surrounding areas are looking longingly for water from the west, specifically from the Shannon River watershed, to supply water to these communities in the east, at a cost of €500 million.
Some of the potential fracking would occur in the Shannon River watershed possibly diminishing the quantity of water available for drinking water. Any “accidents, surface spills, etc.” also could adversely impact the quality of that water for all the communities that depend on it. If fracking creates too great a risk for the NYC drinking water supply, is there any reason to believe the same risks do not exist for Dublin’s water supply.
A further question remains, for both NY and Ireland. If fracking presents too great a risk of contaminating the drinking water for residents of the metropolis, including surrounding populous counties, why is the risk acceptable for the individual farmers and small communities outside the metropolis? Many, if not most, of those drinking water wells are as unfiltered as NYC’s and Syracuse’s. What is good for the goose ought to be good for the gander. Whatever protective measures are adopted for NYC (and arguably Dublin) ought also to be adopted for drinking water wells of individuals and small communities, in NY and Ireland.
What Restrictions Will Apply to Fracking
Clearly one of the most contentious issues surrounding fracking is whether fracking endangers drinking water supplies, as discussed above. On November 3, 2011, the US EPA released its Final Hydraulic Fracturing Study Plan which is designed to assess whether hydraulic fracturing can impact drinking water resources and to identify driving factors that affect the severity and frequency of any impacts. The study is due to be completed in 2014. It is important to note that the US EPA study will not address air, GHG emission, or other impacts from fracking.
In the meantime, NY is proceeding ahead without the benefits of that US EPA study. For the areas not subject to a ban on fracking in NY, DEC analyzes what the risks are from fracking and it proposes permit or regulatory requirements to mitigate any risks.
The GEIS indicates that each well (not well pad) can use from 2.4 million gals to 7.8 million gals, for an average of 3.6 million gallons of water. All this water has to be delivered to the well site by trucks or pipeline, absent a water source adjacent to the well pad. At the well pad, the water is mixed with sand and chemical additives, many of a toxic nature, to be injected under high pressure to the subsurface.
Flowback, or the fluids that return up the pipe after fracturing, include about 9% to 35% of the fracturing fluid pumped into the well, which represents between 216,000 gals to 2.7 million gals, based on the estimate of 2.4 to 7.8 m gals used for each well. Most of the flowback is recovered within two to eight weeks of fracturing.
Fracking presents a number of potential adverse impacts to water resources, one of which is overdrawing water. Taking too much water from surface, groundwater, or wetlands can deny others the use of these natural resources, for drinking water, farming and other uses, and the ecosystems dependent on these water resources can be injured or destroyed. To assess the potential impact from overdrawing water, DEC calculated the total annual fresh water withdrawal in NY at 3.8 trillion gallons and the expected annual withdrawal attributed to all fracking at 9 billion gals, an increase of only 0.24%. However, DEC points out that there would remain potential risks from withdrawal at low-flow or drought conditions or high withdrawal from local water sources that lack capacity. A similar exercise for any fracking considered in Ireland would be critical, especially in light of potential drought conditions in some areas expected with global climate changes.
Besides the risk of overdrawing water, there are risks of spills, releases, and accidents resulting in runoff from the well pads to nearby surface and groundwater resources at the time of the mixing of the water, sand and chemicals, some of which are toxic. In addition, land clearing for access roads, staging for equipment and well pads, drilling fracturing and production, tank ruptures, pipe failures, failures or overfilling of impoundments, vehicle collisions, fires, equipment defects, and well reclamation are all activities that can also generate runoff with contaminants, such as fuel, oil, or chemical additives, that can adversely impact water resources, especially during heavy rain events. At 6-4. These threats would be common to many instances of industrial activity, although the toxic chemical additives used in any fracking activity as well as the huge volume of water present special risks. And, it must be noted, that these heavy industrial activities are taking place in hitherto undeveloped, pristine rural landscapes.
The flowback material is a particular risk in fracturing operations. The concern, of course, is that the flowback contains the chemical additives, including benzene and other hazardous chemicals, which were pumped into the well along with the water as well as possible radionuclides naturally occurring in some geological structures and other materials. New York is proposing that operators will be required to handle this flowback by using water-tight tanks. At 5-99. Importantly, the GEIS adds a note of caution: “Most fracturing fluid components are not included as analytes in standard chemical scans of flowback samples that were provided to the Department, so little information is available to document whether and at what concentrations most fracturing chemicals occur in flowback water.” At 5-99. This is a notable, disturbing absence of data.
Disposal of flowback and production water will be required as a condition of the permit either through a publicly-owned treatment work, a special fracturing wastewater treatment plant, deep-water injection or out-of-state disposal. Permit applications will have to indicate which disposal option will be used by the operation and the water to be disposed will have to be fully characterized before disposal. It remains to be seen if environmentally-acceptable systems for disposal will be available before DEC allows fracking to commence.
DEC concludes that whatever risks are posed by fracking to water resources are attributable to activities associated with activities at and about the well pads and not from subsurface leaks, spills, or releases that might migrate to the drinking water supplies. Much of the data and analysis for this conclusion is from the American Petroleum Institute, a notoriously vested interest representing the oil companies, and anecdotal evidence from other states. At 6-40. Many public comments raised serious issue with this analysis and conclusion.
The migration of methane from the gas production to drinking water sources is mentioned as a risk for combustion and asphyxiation but it is suggested that methane contamination can be caused by naturally occurring methane in shallow subsurfaces in NY. A recent study from Duke University has concluded that methane contamination of private drinking water supplies has occurred in NY and Pennsylvania and it is not from shallow methane but methane from the Marcellus shale and it is attributed to fracking operations.
Based on these potential adverse impacts, primarily from surface spills, leaks, releases, accidents, etc. at and about the well pads, DEC recommends a series of setbacks in areas where fracking will be prohibited. No fracking will be allowed within 2,000 feet (ft) of public water supply wells, reservoirs, natural lakes or man-made impoundments, or river or stream intakes. No fracking will be allowed within the boundaries of primary aquifers (Note 3) or within 500 ft of these boundaries. No fracking will be allowed within the boundaries of principal aquifers (Note 4) or within 500 ft of the boundaries unless approved after a site-spefic assessment is undertaken. Each setback requirement is temporary in that it will be evaluated after two years to see if it is still required.
For surface waters that are a tributary to a public water supply, any fracking within 500 ft. will require a site-specific assessment; for perennial or intermittent streams, storm drains, lakes or ponds, fracking within 150 ft. will require a site-specific assessment.
For private water wells, or domestic-supply springs, DEC proposes to restrict fracking within 500 ft unless the owner waives such restriction. It can only be assumed that owners of land on which is found a private water well or spring will be under economic pressure to waive any restriction in order to receive the payments for fracking. The payments are substantial, with Pennslyvania landowners recently receiving $3,000 per acre, plus a portion of the revenue from the sale of gas.
One wonders what should happen if one landowner grants a license on her/his land, with a waiver when the fracking well will be closer than 500 ft to their water well, and where a neighbor shares the same drinking water source or aquifer but refuses fracking on their land. The former might gamble that the money is worth the risk of losing a water source, while the latter is put at risk without any benefit and without any apparent means of protecting her/his water supply.
Most of the air problems from fracking operations come from internal combustion non-road engines used in drilling and fracking, engines that provide power for gas compression, and road traffic for transporting equipment, water and additives. DEC concludes that existing regulatory controls for stationary and mobile sources of air emissions will suffice to mitigate any air impacts. This optimism must rest on confidence in the regulatory oversight and enforcement programs within DEC. Unfortunately, those programs, like all others within DEC, are being decimated by budget cuts and staff losses. (Note 5).
To assess any unforeseen air emission problems DEC recommends an air monitoring program at well sites.
Greenhouse Gas (GHG) Emissions
DEC focuses on methane (CH4) as the chief GHG of concern from fracking operations because it has such a high Global Warming Potential (GWP). (Note 6) While section 6.11 of the GEIS, and Appendix 19, provide estimates of GHG emissions per well, there is no quantification of the total GHG emissions that will be generated from all the fracking that is anticipated in NY. The explanation offered is that it was more important to identify and characterize the major sources of GHGs during the operation in order to develop mitigation efforts. At 7-112.
Those mitigation efforts appear to be primarily, if not entirely voluntary, and the history of the fossil fuel industry does not bode well for such volunteerism. Moreover, NY has committed to reducing GHGs by 80% by 2050, and that commitment remains in effect by Executive Order. (Note 7) An estimate of the total volume of GHG emissions attributable to the total projected fracking activities in NY may well indicate that NY cannot meet any GHG reduction targets if fracking is permitted to proceed as planned unless deep cuts in GHGs are found in other economic activities. Such a study recently was done by the Tyndall Centre for Climate Change in the United Kingdom. It found that exploiting just twenty percent of shale gas in Lancashire would force the UK government to scrap its targets for reducing carbon emissions. See Sources.
Finally, it seems unbalanced to laud the economic benefits from fracking, arguing it will lead to increased jobs and state revenues, without also accounting for the detrimental costs in GHG emissions. (Note 8) DEC owes the public an assessment of how GHG emission targets can be met if fracking is allowed to proceed.
Naturally Occurring Radioactive Materials (NORM)
In what must qualify as one of the most disingenuous acronyms, NORM stands for “naturally occurring radioactive materials.” Since radioactive materials are found in shale formations, the danger is that they will migrate to the surface in cuttings, flowback and production processes, especially in production brine. The risk to workers is through exposure to a build-up of radioactive materials, such as radium-226, in pipes and equipment, and to concentrations of the material in wastes. Such wastes are subject to existing regulations but DEC is also requiring radiation surveys of piping and other parts of the process that might contain radioactive materials.
In the updated (September 2011) “Potential Environmental Impacts” section 6.11 of the GEIS, DEC provides data on the estimated number of truck trips generated per well. The need for very large quantities of water, and chemical additives, for fracking account for much of the truck traffic. Under circumstances where all the water is delivered to the well by trucks, DEC estimates that trucks will take about 6,790 one-way trips for each fracking well. GEIS, at 6-303. In evaluating war and tear on roads, DEC cites a rule of thumb that a single large truck is equivalent to 9,000 cars. GEIS at 6-311.
That is a lot of increased traffic. Much of this traffic may take place on small country roads with obvious impact on the people who use these roads, and with increased chances of road accidents and spills, including of the chemical additives trucked to the wells. In addition, this truck traffic will increase the deterioration of state and local roads, which will require substantial additional capital outlays to maintain or upgrade the road systems. Economic Assessment Report, at 4-114; GEIS, Section 6.11.
The impacts and dangers from such truck traffic exemplify one of the key differences between fracking and other gas/oil drilling and production. Much fracking takes place in the middle of rural areas where farming, recreational and tourist activities, and holiday homes share the landscape and where heavy, dirty industry is uncommon.
Fracking, like other forms of subsurface drilling, can cause seismic activity, but DEC concludes that there is “essentially no increased risk to the public” from such seismic activity as long as the fracking does not occur along a fault. At 6-213. If seismic activity does happen in an area of faults, the magnitude of the activity can reach 3.4 to 5.5 and cause damage. Mapping areas of known faults should mitigate any risks, according to DEC.
The DEC GEIS was completed before the recent study of the seismic activity with magnitudes of 1.5 and 2.3 in Lancashire UK which concluded the seismic activity was the result of fracking operations in the area. There was a pre-existing fault in the area. See Sources.
In rural communities, where farming is a major source of income, and a diminishing one, the stark choice for many will be between the revenue from leasing rights to one’s subsurface gas rights plus the royalties for any gas production versus the risks of destroying one’s drinking water source, possibly putting one’s family at risk of exposure to dangerous substances, and destroying the quality of life in an undeveloped rural landscape. Including only the revenue from leasing the land, and assuming leasing rights at $3,000 per acre, how many acres does one need to own before taking such risks? That choice is difficult enough, but what about the farmer who refuses to take the leasing revenue, and the risks, but loses his/her drinking water source anyway because a neighbor takes the money and risks and an accident or spill or release or an etc. destroys a common drinking water resource. One can suppose the injured party has an expensive and lengthy lawsuit, but no water to drink and a much-diminished quality of life.
Rather than supporting fracking for natural gas, a fossil fuel, perhaps the government resources would be better placed finding ways to substitute each fracking well, and all the truck trips and emissions of GHG, with a windmill that generates clean power. Both activities generate energy and income for the farmers. The wind power is renewable and clean; the fossil gas is neither.
The DEC has set January 11, 2012 as the deadline for submission of any comments on the GEIS by the public. Subsequent to the deadline, irish environment will publish a Report digesting the critical public comments on the fracking GEIS.
Note 1. The 2011 GEIS incorporates the 2009 initial GEIS, which means whatever was said in that 2009 GEIS is also relied on by DEC for its decision on whether to allow fracking in NY and, if so, subject to what conditions
Note 2. The 2009 initial GEIS on fracking concluded that banning fracking was not a reasonable option since exploiting the state’s natural gas resources for energy, with substantial income for the fossil fuel companies and potential jobs in depressed areas, outweighed any risks associated with fracking to the state’s surface and groundwater. Moreover, DEC has already proceeded with drafting and publishing regulations that would govern any fracking in NY.
Note 3. A primary aquifer, under NY law, is defined as “highly productive aquifers presently utilized as sources of water supply by major municipal water supply systems”. There are 18 across NY state. Glossary in GEIS.
Note 4. A principal aquifer, under NY law, is defined as “aquifers known to be highly productive or whose geology suggests abundant
potential water supply, but which are not intensively used as sources of water supply by major municipal systems at the present time”. Glossary in GEIS.
Note 5. DEC has appointed a High-Volume Hydraulic Fracturing Advisory Panel that is charged with developing recommendations to ensure DEC and other agencies are enabled to properly oversee, monitor and enforce high-volume hydraulic fracturing activities; developing recommendations to avoid and mitigate impacts to local governments and communities; and evaluating the current fee structure and other revenue streams to fund government oversight and infrastructure related to high-volume hydraulic fracturing.
www.dec.ny.gov/press/75416.html It would appear that the Panel will not report on how DEC or local governments will have the financial or staff resources to oversee and enforce fracking activities before fracking is approved by NY. Moreover, any recommendations are subject to additional funds being available from state or local governments, an unlikely scenario.
Note 6. See the entry for “Global Warming Potential” in the iePEDIA section of the current issue of irish environment.
Note 7. Then-Governor David A. Paterson signed Executive Order No. 24 setting a goal to reduce greenhouse gas (GHG) emissions to 80 percent below 1990 levels by 2050. On January 1, 2011, Governor Cuomo issued Executive Order No. 2 continuing in effect Gov. Patterson’s Executive Order No. 24, as well as other Orders.
Note 8. See, e.g., Economic Assessment Report, at 4-114 to 4-116.
NYS DEC, Revised Draft Supplemental Generic Environmental Impact Statement on the Oil, Gas and Solution Mining Regulatory Program (September 2011) www.dec.ny.gov/energy/75370.html
NYS DEC, Economic Assessment Report for the Supplemental Generic Environmental Impact Statement on New York State’s Oil, Gas, and Solution Mining Regulatory Program (August 2011).
NYS DEC, “Environmental Assessments,” www.dec.ny.gov/permits/45586.html
NYS DEC, “What is An Environmental Impact Statement?”
NYSDEC, “Generic EISs,” www.dec.ny.gov/permits/56701.html
European Union Directive 85/337/EEC of 27 June 1985 on the assessment of the effects of certain public and private projects on the environment (known as the EIA Directive). eur-lex.europa.eu/LexUriServ/LexUriServ.do?uri=CELEX:31985L0337:EN:HTML
“Puny fines, scant enforcement leave drilling violators with little to fear,” Greenwire
US Environmental Protection Agency, Final Hydraulic Fracturing Study Plan
“Down the drain: what’s going wrong with Ireland’s water supply?” Irish Times (November 5, 2011). www.irishtimes.com/newspaper/weekend/2011/1105/1224307092855.html
“Fracking ‘probable’ cause of Lancashire quakes,” Guardian (November 2, 2011). See link in News ‘Archive’ (November 2, 2011) section of irish environment.
Fiona Harvey, “Shale gas push ‘would wreck UK’s climate change targets’,” Guardian (November 23, 2011). www.guardian.co.uk/environment/2011/nov/23/shale-gas-climate-change-targets?INTCMP=SRCH
“Shale threat to carbon target,” The Independent (November 23, 2011).
An Taisce The National Trust for Ireland, Energy Unit Newsletter (summer 2011), “The Question of Fracking.” www.antaisce.org/transportenergy/EnergyHome.aspx
Fermanagh Fracking Awareness Network, www.frackaware.com/wordpress/
Fracking Free Ireland
What The Frack? Highlighting the Irish shale gas extraction project