October 6, 2011
NYS Assembly Standing Committee on Environmental Conservation
Legislative Office Building – Hamilton Hearing Room B
Albany, New York
Hand-Delivered
Re: Public Hearing Testimony by Oneida County Legislator Chad Davis on the Revised Draft SGEIS
Dear Honorable Members of the Assembly Committee on Environmental Conservation:
Thank you for this opportunity to present testimony on the Revised Draft SGEIS and your due diligence
in connection with examining the risks and benefits of hydraulic fracturing in New York.
As a county legislator in Oneida County, New York representing over 10,000 constituents in the Towns of
New Hartford and Kirkland – two towns, I might add, that have recently passed moratoriums at the
Town Board level of government – I am here to first express my frustration over the rush to complete
the regulatory review process with a public comment period of only 96 days.
With approximately 1,500 pages to review, examine and digest, I don’t believe that it is unreasonable to
call for a 180 day comment period; and, quite frankly, in my humble opinion, terminating public
comment on December 12, 2011, after only 96 days, undercuts the ability of many in the public – who
lead busy lives outside of this specialized arena under review - to do due diligence and provide
meaningful and constructive comment thereon.
Before I comment on some particular aspects of the Revised Draft SGEIS, I have to say that I firmly
believe that the DEC, as an Agency, has still missed the mark of its basic and essential mission to
“improve and protect New York’s natural resources and environment and to prevent, abate and control
water, land and air pollution, in order to enhance the health, safety and welfare of the people of the
state and their overall economic and social well-being”.
Ironically, juxtaposed to this DEC Mission Statement is the simple and plain fact that the Revised Draft
SGEIS still fails to consider, review and examine the Human Health Impacts and the Cumulative
Impacts, or fallout, of this gas extraction process.
Along that line, with the 10 copies of my prepared statement, I will be providing to your Committee ten
(10) copies of the 47 minute DVD by Dr. Theo Colborn entitled “What You Need to Know About Natural
Gas Production” – because it connects many of the dots between the gas production process and its
negative affects upon Human Health.
As for the apparent failure of the Revised Draft SEGIS to cover the cumulative impacts – which would
have required a Comprehensive Study instead of a Generic Study, it seems to be unconscionable, on the
part of DEC Commissioner Joe Martens and Governor Andrew Cuomo to allow permitting to go forward
without such a study – especially with the view that tens of thousands of gas well will be drilled and
that, as it stands, none of the 322 chemicals that have been identified under the 2011 SGEIS have been
precluded from use; rather, the permit applicants simply have to identify the names of the additives.
And, there is even a loophole for that requirement - in as much as exemptions are allowed to, quote/unquote, ‘protect confidential business information’.
The apparent translation here is that profit is more important than the DEC’s Mission Statement of
looking after and enhancing the health, safety and welfare of the people of the state. In short, the
carcinogen chemicals and heavy metals, etc. are still allowed and this, sadly, is a huge flaw in the state’s
drilling plan, to say nothing here, in detail, about the radioactive waste water and what to do with it
safely – other than the idea of reusing it, as proposed, then doubles the radioactive count – which
makes matters ever so much worse when ultimate disposal is, in fact, made.
On August 23, 2011, NY State Senator Greg Ball and a few of his senate colleagues held a similar public
hearing in Katonah, NY and the 3½ hours of testimony clearly evidenced a myriad of shortfalls and
loopholes in the proposed regulatory framework that the DEC is promulgating in the Revised Draft
SGEIS. I do hope that you all take the time to generate and pass certain ‘proposed’ legislation that can
serve to close the many loopholes that still exist under the Revised Draft SEGIS. Senator Greg Ball
announced a number of proposals for legislation that will serve to protect the rights of property owners,
and, he set a much high standard, or bar, than is presently proposed by the Agency’s Revised Draft
SGEIS.
For example, Senator Ball is proposing a mandatory, full reimbursement to property owners by
negligent gas companies for 150% of the real estate’s market value of property, based on estimates
prior to drilling; and, 100% of the cost of full remediation of the soil and water. The company will also
be accountable for the full reimbursement of the land owner’s legal fees.
Furthermore, Senator Ball has proposed mandatory full remediation of soil and water as well as free
medical monitoring for life. All settlements are not to be taxed.
In addition, all fracking companies must agree to sign a Presumption of Causation Agreement with the
State of New York.
Another very important piece of proposed legislation that is very much needed is a Home Rule Law that
would allow local governments to enact and/or enforce certain laws, rules and ordinances related to oil,
gas and solution mining. In the State of Texas, and other states out west, I understand that there is a
duel permitting process, one at the State level and one at the local level.
I understand that Senator Ball’s Comprehensive Fracking Bill also proposes to impose penalties upon
companies that fail to protect property rights; and, I hereby defer to all of his proposed legislation which
is designed to protect the rights, property interests, health and environment in ways that the Revised
Draft SGEIS does not.
A major concern in the minds of thousands of constituents that I represent is the safety of their wells
and the aquifers that supports the good water that now comes into their homes. The Village of Clinton
has a water works system that is supported by six wells that presently draws good, clean drinkable
water from one large aquifer which is oval in shape and extends almost two miles under the Town of
Kirkland and the Village of Clinton. The aquifer, which is approximately 100 feet, or less, in depth serves
about 1,200 customers, of which about 800 are within the Village of Clinton and the other 400
customers lie within the surrounding Town of Kirkland.
I spoke with the former Mayor of Clinton, Gil Goering, as well as the present Mayor of Clinton, Jack Lane,
just yesterday and I was told that ‘if anything gets in to this aquifer – which so many Village residents
and townspeople rely on – we are done; we’d have to shut down.”
Now, the present scope of the Revised draft SGEIS provides: In developing the permitting process for
high-volume hydraulic fracturing, the DEC’s number one priority is to protect drinking water for all New
Yorkers.
The specific measures to protect the state’s drinking water include prohibiting surface drilling as follows:
 Within 2,000 feet of public drinking water supplies;
 On the state’s 18 primary aquifers and within 500 feet of their boundaries;
 Within 500 feet of private wells, unless waived by landowner;
 In floodplains;
 On principal aquifers without sit-specific reviews; and,
 Within the Syracuse and New York City watersheds.
In its defense and protection of the Syracuse and New York City Watersheds, the DEC’s latest report
says, “As the only unfiltered surface supplies of municipal water in the state, these watersheds are
unique and deserve special protection to maintain their EPA Filtration Avoidance Determinations.
Losing this designation would mean that New York City and Syracuse would be required to spend billions
to build water filtration plants. Therefore, high-volume fracturing will be prohibited within these watersheds, within 4,000 feet of their boundaries and within 1000 feet of the NYC’s subsurface water supply
infrastructure unless approval is granted after site-specific review.”
Here’s the rub, here’s the problem and the challenge: This whole Revised Draft SGEIS Regulatory
Framework is all speculative. It’s mere guesswork – which has not yet been made the subject of any true
scientific rigor.
Now, attached herewith is an American Association of Petroleum Geologists Search and Discovery
Article #90131 from the AAPG Eastern Section Meeting held in Washington, D.C., (25-27, September
2011). The article reports of oil and gas migrations – first vertically at least 1,000 feet through relatively
impermeable shale and carbonate, as probably facilitated by fractures and faults. For example, the
article reports, oil and gas generated and expelled from the Marcellus Shale in New York, Ohio,
Pennsylvania and West Virginia probably migrated vertically through about 1.500 to 4,000 feet of
overlying shale and siltstone into Upper Devonian and Mississippian sandstone.
In addition, the AAPG Search and Discovery Article reports that a short time after vertical migration,
large volumes of Marcellus Shale gas (from cracked oil or kerogen conversion) were expelled a short
distance into underlying Lower Devonian sandstone and migrated either into adjoining anticlines or updip as far as 50 miles.
Furthermore, oil and gas generated and expelled from Utica Shale in Ohio and Pennsylvania suggest the
following migration patterns: 1) Westward across-dip migration for 30-80 miles through about 1,000
feet of underlying Ordovician rocks before entrapment in Cambrian reservoirs, and, 2) vertical
migrations through about 1,500 feet of overlying Ordovician shale followed by up-dip migration as far as
50 miles before entrapment in Lower Silurian standstone.
Commonly, Devonian and Ordovician oils have migrated as much as 50 miles beyond the up-dip limit of
oil generation.
Obviously, this is rather stunning, because it appears that the far, far migrations of oil and gas through
the Utica Shale is just pursuant to vertical drilling, it does not even cover horizontal drilling. Think of it
this way, if it travels that far just by a vertical line, just imagine how far it could go with horizontal lines
going out 1 mile and breaking the Utica and Devonian Shale. The amounts of gas and oil migration
increase exponentially.
With high-volume, slick water hydraulic fracturing, logically, the long migrations can be facilitated by the
fractures and fault lines by also by the high pressures down the pipe and the released charges to frack
the rock; those high pressures have to dispel and release; and, under one of the basic laws of physics,
whereby a ‘body in motion tend to remain in motion - unless acted by an outside force’ - the path of
travel for the frack-fluid-slurry would always be away from the well borne and the high-pressure frack
activity.
So, again, it would seem that the ad hoc set-back lines proposed by the DEC – of a few hundred feet
would be woefully inadequate with untold negative and unintended consequences.
Said another way, it appears that this rather new information from a rather prestigious group known as
the American Association of Petroleum Geologists is giving us a new benchmarks to work with, but the
new benchmarks are so substantial in their distances for setbacks - that the entire drilling technology
does not appear to be practicable, or viable; simple common sense tells us that.
The DEC’s setback recommendations then, which are intended to protect and preserve the clean water
sources in the state, would appear to be ‘speculative’ and, to quote Josh Fox’s testimony to the New
York State Senate Committee, “more motivated by politics and greed than by science and actual concern
for the citizens of the State and their quality of life.”
The DEC Revised Draft SEGIS recites its justification for these recommendations as “protecting the
state’s environmentally sensitive areas while realizing the economic development and energy benefits
of the state’s natural gas resources”. The risk/benefit analysis of the DEC concludes, “More that 80% of
the Marcellus Shale where gas extraction is viable would be accessible under these recommendations.
The only problem is, the extraction process appears to be further problematic, as further cited herein
below.
On Friday, September 23, 2011, Stuart Gurskin, the former Executive Deputy Commissioner of the New
York State Department of Environmental Conservation, while participating in an overview of the science
and policy of gas drilling in the Utica and Marcellus Shales in Central New York, told a packed audience
in the Hamilton College Chapel that, “the key to the whole thing is the goodness of the well casing…if
that is done right, then, everything will be fine.”
He also said that, “If the Industry were to come in here unconstrained, they would do things their way;
so, I am here to talk about what it takes to ‘get it right’ from a regulatory standpoint.”
Juxtaposed to Stuart Gurskin’s comments are those made by Victoria Switzer and Josh Fox to a New
York State Senate Committee Hearing on Hydrofracking held in Katona, New York, on August 23, 2011.
Switzer, of Dimock, Pennsylvania, who was featured in the August 2011 Reader’s Digest.Com cover story
How Safe is Our Water,” told the Senate Committee, “We have seventy-one (71) natural gas wells in
production in our area around my home; of the forty-three (43) gas wells that were inspected by the DEP,
(Dept. of Environmental Protection,) twenty-two (22) of the forty-three (43) wells have been determined
by DEP to be defective, insufficient, improperly cemented, or cased, or defective in other ways.”
Switzer emphatically drove home her point to the New York Senators: “I ask, would you care to enter
into a contract, or partnership, with an industry with that kind of a track record? Flip a coin: fifty/fifty.
We drill and you don’t drink. Acceptable odds? Collateral damage? …That’s just part of the deal.”
Also on August 23, 2011, in Katona, Josh Fox, the producer of Gasland, said in NYS Senate hearings that
there are inherent flaws in the gas drilling process; and, he said it fails ‘everywhere it goes.’
“…Even in places with tough regulatory restrictions on drilling – has not made it safe,” said Fox.
His main point was that the regulatory framework, the regulatory approach, does not work. For the gas
industry and politicians to say so, in Fox’s view, is nothing but ‘political hubris and braggadocio.’
“The idea that New York can get it right – under a regulatory framework – is wishful thinking, and, may
well border on being negligence,” he told the senators.
“Pennsylvania and Texas thought the same thing, e.g., that a regulatory framework would work.” But,
he warned, “…once the gas industry is in a state, with a foothold, it proves to be more powerful than the
state that endeavors to regulate it.”
Josh Fox then proceeded to describe sixty-six items that were neither tested for, nor studied - in
Pennsylvania and/ or other places - relative to the technology known as High Volume, Horizontal SlickWater Hydraulic Fracturing. Here are a few of the sixty-six items from his list, together with his brilliant
conclusions that this practice can’t be effectively regulated, which view runs contrary to Stuart Gurskin’s
position-taking.
1. There is no long-term study of Human Health Effects, or Risks. (Love Canal Ramifications).
2. There is no real enforcement capability within the NYS DEC, e.g., adequate to handle it. The
amount of oversight needed for 100,000 wells….
3. There is no adequate Inspection capability for gas wells.
4. There have been no adequate standards for well casing depths – because there has never been
a scientific study looking at this particular geology; and, the natural fractures vary in depth and
length in these different geologies…and, water and frack fluids… migrate UP…
5. There is no tested, and no proven, solution, to the Industry’s wide problem of casing failure. (By
the industry’s own admission, one (1) out of every twenty (20) well casings will experience an
immediate failure upon drilling – not upon fracking. So, that means that you are going to have a
problem 5% of the time…
At this point, Fox told the Senators, “If you take a look at Dimock, PA, one (1) in thirty-two (32)
wells – caused a nine- square-mile contamination area. Now, if you take that figure and multiply
by 100,000 wells, at that contamination rate, i.e., of one in thirty-two, (which he said was
‘generous’) then, by extrapolation, you have contaminated every square inch of the Marcellus
Shale.” And, he reminded them, “you have to go by the statists!(sic) This is the way these things
play out.”
Fox told the Senators that there is a one in one-hundred-thousand chance of a blow-out
happening; and, in PA, they’ve had two blow-outs. After some digression, he then continued
with his list:
6. There are no proven standards for well casing pressure tests. (None have been tested
scientifically.)
7.
There are no proven standards, or limitations, for frack pressures or fracture testing materials
– including casings and/or pipes.
No one, but perhaps certain people within the Industry, know(s) what is going on and why it is
failing so much.
There are just too, too many cases of water contamination.
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It could be surface water contamination, or fractures….
It could be casing failures…
It could be that the fracks or fractures penetrate up through the Marcellus to an
acquifer … and… the frack fluids migrate up.
Josh Fox has reported that people in the gas industry have confirmed the fact that fracks have gone up
to the surface. At an Alumni College on Hydrofracking, held this past June at Hamilton College, Steve
Woods also mentioned that this is a problem.

It could be that you have an old orphaned well – and – that the geology has not
accounted for it… and the open cavity is hit and control is lost.

It could be that the drillers hit the next adjoining well – when another is being
fracked.
There are many, many scenarios, or possibilities, as to how this could play out and take place….And, if
real science were to enter the picture here to study it, estimates for just one geology to study it are in
the range of $30,000,000.00.
And, you’d have to do a good five or six different wells, and frack them all, to even begin to get close to
figuring out where all of these fluids are going.
Fox concluded, “Any regulatory framework is speculative.”
Unfortunately, companies have not yet been required to report a so-called drilling-plan, with
drilling records - complete with drilling depths, drilling mud waters, frack pressures, frack
chemical records, directional locations, etc..
“Nothing has been open for public review.”
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There have not been any storage studies, nor have there been any studies of
the drill-pit linings used for disposal
There is no history, or record keeping, to vet the safety of synthetic
petroleum drilling muds which are injected into the wells before the well is
cased; which, as an oil industry expert, Chip Northrup, has pointed out, go
directly into the aquifer and have been turning up in people’s water wells.
In every other state, the industry has played a shell game, or a convenient game of smoke and
mirrors. Their gig, is to come in and say… this is perfectly safe and you can make lots of money
at this…
As for assigning blame or fault, there is no acceptance of responsibility, just finger pointing,
“Oh, it’s the contractor’s fault…”
Back to Josh Fox’s point that there has never been a regulatory framework that has worked, he
told the New York State Senators that “there has never been a proven instance in which
Hydrofracking has been shown to be safe; it has never been proven… because… it has never
been made the subject of any scientific rigor.”
For the full testimony given by Josh Fox, Victoria Switzer and others to the NYS Senate, Google:
‘New York State Senate Hearing on Veterans, Homeland Security & Military Affairs’.
My conclusions are simply that the State DEC needs to wait and let the NYS Assembly and the
State Senate take a hard look at all of the problems and challenges to this imperfect,
methodology, wait for the EPA study that is to come out next year and reevaluate things based
on the problems and pitfalls that still exist – which will cause irreversible harm to the
environment and human health as it has just south on New York’s boarder in the last few years.
Respectfully yours,
Chad Davis
Oneida County Legislator – 18th District