*
Regulating Shale Gas Well
Development in New York State
Libby Ford, QEP Sr. Environmental
Health Engineer
* Photo from
http://www.stargazette.com/article/20111116/NEWS01/111
160376/Passions-run-high-DEC-hydrofracking-hearing
Agencies at all Levels Will Regulate –
But NYSDEC Will Take the Lead
Revised
draft
SGEIS at
http://www
.dec.ny.go
v/docs/ma
terials_mi
nerals_pdf
/rdsgeisch
80911.pdf
2
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
3
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
4
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
5
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.
6
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
7
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.
8
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.
9
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.
10
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 sitespecific 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.
11
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 711307)
• HVHF SPDES General Permit
› Generally, up to $37,000 per day per violation
12
Questions?
Libby Ford, QEP
Sr. Environmental Health Engineer
Nixon Peabody LLP
1300 Clinton Square
Rochester, NY 14604
P (585) 263-1606
F (866) 947-1126
lford@nixonpeabody.com
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
14