Regulating Shale Gas Well Development in New York State Libby Ford, QEP Sr. Environmental Health Engineer * Photo from /Passions-run-high-DEC-hydrofracking-hearing *

2 Agencies at all Levels Will Regulate – But NYSDEC Will Take the Lead Revised draft SGEIS at v/docs/ma terials_mi nerals_pdf /rdsgeisch pdf

3 Overview of the Program Proposed In SGEIS and the Proposed Regulations Shale gas developers will need two main permits › ECL Article 23 (Oil and Gas Permit) ›General SPDES Permit for High Volume Hydrofracturing NYS DOT and USDOT ›Transportation of HF chemicals NYS PSC Gas lines and compressor stations USEPA – Injection well disposal USACoE – Wetlands Local Health Department and Local Governments River Basin Commisions

4 ECL Article 23 (Oil & Gas Permit) NYSDEC Division of Mineral Resources (DMR) will lead ›Div. of Water (DOW) will assist if application includes a Fluid Disposal Plan. ›DFWMR advisory role – invasive species and site disturbance in Forest & Grassland Focus Areas. ›Div. of Air Resources – air quality & emissions control. ›Div. of Materials Management if application for benficial use of production brine for road-spreading. ›If site-specific SEQR, other DEC departments will be involved

5 ECL Article 23 Permit – Future SEQR Each application triggers SEQR w/ NYSDEC as Lead Agency Scenario One ›Application will be accompanied by detailed project-specific information. Department staff will determine whether the application conforms to the conditions and thresholds described in the 1992 GEIS/2011SGEIS. If the application conforms, DEC will file a record of consistency statement and no further SEQR review will be done. ›Permit conditions will be added on a site-specific basis to ensure compliance

6 ECL Article 23 Permit – Future SEQR Scenario Two - Proposed action is adequately addressed in the GEIS/SGEIS but not in respective Findings Statement. ›A supplemental findings statement must be prepared ›Permit conditions will be added on a site-specific basis to ensure compliance Scenario Three : Permit applications that are not addressed, or not adequately addressed, in the GEIS/SGEIS. ›Additional information to determine whether the project may result in one or more additional significant adverse environmental impacts not assessed in the GEIS/SGEIS.

7 ECL Article 23 Permit – Permit Conditions/Application Information Planning and Local Coordination ›Visual Impacts Plan ›GHG Mitigation Plan ›Emergency Response Plan ›Department approved Transportation Plan ›Noise Control Plan ›Testing of residential wells w/i 1000 ft of pad Site Preparation – 5 specific conditions Site Maintenance – 55 specific conditions

8 SPDES General Permit for Stormwater Discharges from High Volume Hydraulic Fracturing Operations (HVHF GP ) Parts I, II, and XVII through XXI - how to obtain coverage, limitations and general permit conditions. Other Parts coincide with the construction of the well site; well drilling, hydraulic fracturing, and well stimulation; and production of natural gas. Parts XIV through XVI apply to the Production Phase of the life of the gas wells.

9 HVHF General SPDES Permit HVHF operations are prohibited as follows: › in New York City and Syracuse Watersheds › on primary aquifers › on certain state lands › in floodplains › within 2,000 feet of public drinking water supplies › within 500 feet of private water wells unless waived by the landowner This prohibition means that HVHF operations in the above areas are not able to obtain coverage under the HVHF GP or an individual SPDES permit.

10 Other Issues Additional Well Casing To Prevent Gas Migration ›Third cemented well casing Spill Control – No flowback water stored in open containment, ponds etc. Water Withdrawal ›New legislation passed in 2011, permit needed for large withdrawals. ›Identification of water source must be included in Art. 23 application.

11 Management of Flowback and Production Water and other Wastes DEC will require submittal of records on flowback water, production brine, drill cuttings and other wastes, similar to State’s medical waste tracking firm Art. 23 must include Fluid Disposal Plan. ›On-site wastewater treatment done pursuant to site- specific SPDES permit if a discharge. – Technology based and Water Quality based limits. ›If re-used for HVHF, then Art. 23 permit will control. ›If off-site wastewater treatment, then revised SPDES regulations will govern the review and pre-approval and permitting of the treatment Facility.

12 Enforcement of Art. 23 and HVHF General SPDES Permits Both Permits ›Administrative, Civil, or Criminal, including the right to request, through the NYS AG office, an injunction. ›Administrative and Civil penalties policies set out in guidance documents. Article 23 (Oil and Gas) Permits ›Generally up to $10,000 per day per violation (ECL ) HVHF SPDES General Permit ›Generally, up to $37,000 per day per violation

Questions? Libby Ford, QEP Sr. Environmental Health Engineer Nixon Peabody LLP 1300 Clinton Square Rochester, NY P (585) F (866)

14 NY’s Monetary Penalty Policy - Penalty Calculations Statutory Penalty Analysis Benefit Component – De Minimis Benefits – Compelling Public Interest – Litigation Practicalities Gravity Component – Potential Harm and Actual Damage – Importance to the Regulatory Scheme Penalty Adjustments – Culpability – Violator Cooperation – History of Non-Compliance – Ability to Pay Unique Factors