In DEC We Trust?? Part I

Oil & Gas Pollution in New York State

Part I

Current Regulation:

Eventually the Department of Environmental Conservation (DEC) will release the final Supplemental GEIS, which will include guidelines for the safe horizontal drilling and fracturing of black shales. If and when drilling and fracking come to Franklin, will the DEC assure that it is done safely? If past is prologue, then the DEC’s record should predict their future success or failure.

In New York State, existing regulations for the DEC’s Division of Mineral Resources (DMN) are antiquated and inadequate, most having been written in 1972.

In 1992, the Generic Environmental Impact Statement (GEIS) on the Oil, Gas, and Solution Mining Regulatory Program included the first set of guidelines for safe drilling. The DMN did not see the need for such guidelines, and only began this study after being compelled to by the passage of State Environmental Quality Review Act. Even with the study completed, the DMN under Director Sovas repeatedly failed to codify these guidelines through regulations. Instead of uniform and transparent statewide regulations, DMN uses a changing list of conditions attached to each individual permit to drill, and available only at regional offices or through a Freedom of Information Law (FOIL) request. One draft of the GEIS regulations was obtained by this newspaper through FOIL, but only after an appeal, as described in Volume V, Number 3.

What of the claim that NYS already has the best regulations? Earlier this year, the International Energy Agency published a study Golden Rules for a Golden Age of Gas. In the Annex [appendix] of Regulation and Best Practice are examples of regulations from Pennsylvania, Colorado, EPA, Bureau of Land Management, Alberta (Canada), and Queensland (Australia) – but not a single regulation from New York.

The DEC planned to permit this new combination of horizontal drilling and high-volume fracturing without a SGEIS until compelled to by Governor Paterson. (In May of 2008, the Department claimed “Adequate state regulatory programs [are] already in place.”) The writing of the guidelines has overtaxed the DEC for more than four years, and even today there is much dissatisfaction with the quality and completeness of their work. Codifying these guidelines and enforcing the resulting regulations will be a larger burden still.

The GEIS (1992) was long overdue. Contrary to claims that there has been no pollution of water from the estimated 75,000 oil, gas, and brine wells drilled in New York, there were numerous such reports. So many so that in 1981 and 1986, the DMN had to strengthen the requirements for the casing of these wells — the latter under the direction of the Commissioner of the DEC.

Regulations by the DMN for drilling of oil, gas, and brine have been a day late and a dollar short, with change coming only after pressure from outside.

The Pollution Record

It is unrealistic to expect perfection from any regulatory process. To make an informed decision on whether drilling is regulated enough, we need to know the record. Exactly how often does exploration and production (E&P) pollute aquifers? We do not know because the DMN withholds this information.

Since 1985, DEC has compiled reports of all sorts of spills. Among these hundreds of thousands of spills, there are hundreds of oil, gas, and brine spills, but the Division of Mineral Resources does not list them separately. In 2009, a search by Toxics Targeting found 270 such reports, and in 2011, 72 more. The map below shows the more significant of these pollutions.

View Reported Oil, Gas, & Brine Pollution of Air & Water in New York State, 1983 to 2011 in a larger map

Map above shows oil, gas, and brine pollution of water and air in New York State, 1983 to 2011. Click on link below map to see details of reported pollution.

Unlike DEC spill reports, DMN non-routine incident reports are unavailable even through a FOIL request. Also, in the three western counties where most of the drilling has occured, complaints of polluted water wells are reported to county departments of health and these do not make it into state records. Included on the map are some incidents from files of Chautauqua Department of Health from the 1980s and 2000s.

The DMN Annual Reports contain no listings of spills, non-routine incidents, or county reports. What is more, the DMN maintains numerous searchable databases related to drilling, but none on spills and non-routine incidents, despite the fact that these risk-based data management systems were funded by DOE through the Ground Water Protection Council expressly to protect and conserve ground water resources.

The Record of Enforcement

The DMN provides even less information on their enforcement record. Typically, spill records are closed before enforcement actions are completed. County departments of health refer incidents of pollution to the DMN for enforcement. But the enforcement records of DMN non-routine incidents are also unavailable.

Fines imposed by the DMN could tell something about pollution incidents and enforcement. However, DMN Annual Reports cite the total of fines but list neither the companies fined nor their infractions nor the sites effected. (And the fines themselves are minor: typically a few tens of thousands of dollars each year, on an industry that grosses hundreds of millions of dollars annually.) The DMN does everything within its power to shield the oil and gas industry from scrutiny.

Some complaints of polluted water wells became so publicized that the DEC could not ignore them. In one such case, back in 1983, the Short family’s sump exploded in Levant, Town of Poland, Chautauqua County. During the preceding two years, a dozen gas wells were drilled in the hills above, including a few less than a mile away. A consulting hydrologist concluded “the natural gas in [sic] at the Short’s property … is being caused by activities associated with gas well drilling and production.” The DEC wrote three reports on this polluted aquifer, which affected fourteen other families. In the first, it proposed that the source of the pollution was land-fill gas. Later, analyses identified the gas as from shales. Also, the DEC suggested that the pollution was not caused by work at neighboring gas wells, but from the Blue Mountain earthquake in the Adirondacks, over 270 miles away. Saying that it was unable to “pin-point the source of the problem,” the DEC took no action.

Twenty years later, little had changed. In 2007, the Feruggia family’s well in Kiantone, Chautauqua County, began pumping water that tasted salty, stained fixtures brown, and intermittently smelled of hydrogen sulfide. Two years earlier, the Eckman 7-468 gas well was drilled 330 feet uphill of their home. Analyses of their drinking water showed high concentrations of TDS [total dissolved solids], sodium, chlorine and barium. Chautauqua County Department of Health identified the cause of this pollution as gas production, but a subsequent report by the DEC disagreed. Geologists at US Geological Survey and SUNY Fredonia Department for Geosciences reviewed the two reports, and both agreed with CCDoH that this required further investigation. The DEC took no action.

These two are the best documented, but they are not isolated incidents. A review of reports on polluted water wells show repeated attempts to disregard or explain away pollution. In the final report on Levant, the DMN admits that “some cases [are] attributable to gas wells.” But it does not list any of these industrial pollutions. while in the same report listing several naturally occurring pollutions.

A case of industrial pollution that the DMN cannot deny was in 1996. In the Town of Freedom, Cattaraugus County, the water wells of the Lewis family and others were polluted by gas from the K.C. Powell et al 1 oil well — over a mile away. The several plaintiffs were awarded damages by the NY Supreme Court, County of Cattaraugus.

It should be clear that current oil and gas regulation in New York State is insufficient, that pollution is significant, and that enforcement is deficient.

Can horizontal drilling and fracking be safely regulated in New York? Given its flawed oversight of the relatively simple vertical drilling, this is something that the Division of Mineral Resources has yet to demonstrate.

In our next issue: Part II will investigate why the DMN works as it does and what might be done about this.

For full details of the FOIL request, see Freedom of Information Law request – FOIL 11-1415.