HVHF Comments Package

7/29/2019 HVHF Comments Package

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January 11, 2013

New York State Department of Environmental Conservation

625 Broadway

Albany, NY 12233-6510

Subject: Draft HVHF Regulations Comments

Dear Sir/Madam:

Enclosed please find comments from the Independent Oil and Gas Association of New York (

York) relative to the Revised Proposed Regulations proposing amendments to 6 NYCRR Parts

Parts 550 through 556 and 560, and parts 750.1 and 750.3. Thank you for the opportunity to prcomments.

In reviewing these comments, you will find that IOGA New York has been forced to t

adversarial position with these proposals. Notwithstanding our excellent working relationsh

years and all the efforts that have been made by industry to educate Department personne

modern natural gas drilling techniques and best management practices to minimize poten

environmental impacts, it appears that most of our comments on the previous proposals hav

given any credibility and that the Department has erroneously come to the conclusion tha

resources in New York State will only be developed by large operators. This is truly unfortunaof the failure of the Department to consider our comments that were submitted on January 11, 2

resubmitting those comments. In addition, we are enclosing detailed comments on the Revis

Regulations, together with suggested revisions to certain sections of the Revised Proposed Regu

will ameliorate the adverse consequences of these proposals, without compromising environmen

Finally, we are also submitting additional letters from companies that qualify as small business

State Administrative Procedure Act (SAPA) to reinforce the need for the Department

flexibility with these regulatory proposals and to meet the requirements of SAPA to reduce

small businesses.

As you are well aware, IOGA New York supports a high environmental bar, but the bar must bby industry in order to have the valuable shale resources in this state properly developed. These

are replete with requirements that have no foundation in science or in the long history of moder

New York State without adverse environmental consequences. In addition, in a number of in

Department has exceeded its regulatory authority, again with no scientific or historical ba

offensive proposals. For example, one of the most glaring issues is the proposal by the De

require a 300-foot setback from wetlands regulated by the United States Army Corps of Engine


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Independent Oil & Gas Association Comment Letter

January 10, 2013

We welcome the opportunity to discuss any of these issues with you and your staff. We urge yo

these regulatory proposals in a manner that is lawful, attainable, protective of the enviro

consistent with the statutory mandate that the Department promote the development of o

resources in New York State and protect the correlative rights of landowners to do the same.

Thank you for your consideration of our comments and our proposed regulatory revisions.

Sincerely,

Independent Oil and Gas Association of New York,

Brad Gill Executive Director

Enclosures

cc: Andrew M. Cuomo, Governor

Joseph Martens, Commissioner

Marc Gerstman, Executive Deputy Commissioner

Eugene Leff, Deputy Commissioner, Remediation and Materials ManagementSteven Russo, Esq., General Counsel

Bradley J. Field, Director, Division of Mineral Resources

Thomas S. West, Esq., The West Firm, PLLC

James J. Carr, Hinman Straub PC

4811-8179-7138, v. 1


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Comments on the New York State Department of Environmental Conserv

Revised Proposed Regulations for High-Volume Hydraulic Fracturin

Submitted by the Independent Oil and Gas Association of New Yor

January 11, 2013

The Independent Oil and Gas Association of New York (IOGA) respectthe following comments regarding the Revised Proposed Express Terms 6 NYCRR190 Use of State Lands Administered by the Division of Fish, Wildlife and Mariand Use of State Lands; Revised Proposed Express Terms 6 NYCRR Parts 550 thr

560 Subchapter B: Mineral Resources; and Revised Proposed Express Terms 6 N750.1 and 750-3 Obtaining a SPDES Permit and High Volume Hydro Fractur(hereinafter the Revised Proposed Regulations), as well as the related docupursuant to the State Administrative Procedure Act (SAPA). As part of theIOGA has identified areas where the Revised Proposed Regulations and the rdocuments fail to comply with legal requirements, thus rendering the RevisRegulations legally defective and subject to challenge. In addition to the commentExhibit A is IOGAs proposal on how some of the Revised Proposed Regulatiomodified, which will bring the Revised Proposed Regulations into compliance improve the overall quality of the Revised Proposed Regulations without cenvironmental standards.

Initially, IOGA would like to commend Department Staffs continuing effothese regulatory proposals, including the need to respond to an unprecedented numcomments. Although we recognize that the task at hand has been difficult for the D

the final analysis, the overarching concern of industry remains the failure of the Dinclude provisions in the regulations that will allow Department Staff to imregulations in a manner that protects the environment to the maximum extent prdoes so in a manner that provides the necessary flexibility to allow the orderly dethe shale resources in New York State consistent with the mandates of New York la

IOGA previously submitted comments regarding the previously Proposed E6 NYCRR Parts 52 and 190 Use of State Lands Administered by the Division of F

and Marine Resources and Use of State Lands; Proposed Express Terms 6 NYCthrough 556 and 560 Subchapter B: Mineral Resources; and Proposed Express TerParts 750.1 and 750.3 Obtaining a SPDES Permit and High-Volume Hydro Fractuthat were put out for public comment on September 7, 2011 (hereinafter the 20Regulations). In IOGAs 2012 Comments, which were submitted on or about Januand are fully incorporated by reference herein (the 2012 Comments), IOGA ident


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have those resources developed.1 IOGA notes that a complete copy of the 2012 being submitted with these comments.

I. Positive changesIOGA has reviewed the Revised Proposed Regulations in great detail, includin

that were made as a result of public comment received during the initial rulemawishes to commend the Department for some changes that were made that wresponsive to the needs of industry. One example is the flexibility provided by ththe $2 million cap and the addition of an undefined limitation, as determined by the

on bonding requirements for well operators. Although the Department did not acsuggestion for a financial security test to determine the necessity for bonding, or tha specific cap on bonding consistent with levels adopted by other states currentlyHVHF, this change provides the Department the ability to determine an appropbonding requirements on an owner by owner basis. As is more fully detailed continues to believe that the Department should incorporate a financial assurancethose companies that are fully capitalized to meet the financial assurance inteRevised Proposed Regulations, without unnecessarily tying up capital for extendtime. This is particularly true with the shale resources, which are anticipated to prgas for decades. Likewise, the Department should adopt an overall cap on thfinancial assurance that is required, per company, to keep New York State competitshale producing states. As recent experience in New York State and in othdemonstrated, these types of limits provide adequate assurance that the wells wilclosed without the need to tie up unnecessary capital.

Further, the Department has provided greater clarity to the application proceapplication procedures at proposed Section 560.3(e). IOGA commends the Deproviding a 10-day window to determine if the application is functionally compwill move applications along on a predictable schedule. Additionally, processingfor additional wells on a well pad associated with wells that have already receivpermit without additional public notice or comment period will provide for exefficiency in processing applications. See 560.3(e)(7).

IOGA also notes that the Revised Proposed Regulations require a flare approva flare permit, which was previously proposed. This will increase efficioperations, while maintaining Department oversight over any needed flares. See 5

It is acknowledged that the Revised Proposed Regulations modified the drequired to demonstrate the green frac fluid analysis requirement, both in Part


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considerable internal inquiry, has no consensus or definition as to what constituproduct. The Department should consider utilizing some of the current available

additives used in other geographic regions, even internationally, such as the standard that we believe to be the most rigorous standard. Currently, industrproducts pass even those stringent requirements. In any event, it is hard to cstandard that has no definition or measurement.

Moreover, the Department continues to require that the green frac fluidperformed for each well permit application. This is unnecessarily burdensome ondoes not take into account the significant progress that has been made during the

half years while the revised regulatory standards have been developed in Newimprovement of frac fluid chemicals. These improvements have reduced theconcentrations of chemicals utilized while enhancing the efficacy of the stimulation

II. Provisions Demonstrating the Critical Need for Variances andFlexibility

Although the Department did incorporate some changes to the regulations that

industry, in IOGAs view, there remain significant issues for industry that prevenProposed Regulations from being workable or legal. The net result is that the RevRegulations will discourage development, rather than promoting development as islaw. The 2011 Proposed Regulations contained numerous protective setbacks thextensive than those included in any other state. See 52.3; 560.4(a)(1)-(5); 5750-3.3(a)(1)-(6). The setbacks included in the Revised Proposed Regulationexpanded upon both for hydraulic fracturing permits and SPDES permitting. Cthis problem, the Revised Proposed Regulations continue to promote extensiveincluding prohibitions on siting within or near the Syracuse and New York City wcertain aquifers. See 750-3.3(a)(1) & (2). The Revised Proposed Regulations furthe additional prohibition in Part 52, which provides that no surface disturbance asdrilling a HVHF natural gas well is permitted on any State lands, applicable to botand new leases. See 52.3. It is noted that this prohibition is the broadest of anyprevents any soil disturbance on state lands, which would include access roadevelopment, and any other aspect of site development that disturbs land. Se

previously commented on the inclusion of this prohibition in the 2012 Comments,prior concerns are repeated here.

Simply stated, these prohibitions are without legal authority and inconsistmandate of the ECL that requires the Department to promote the greater recovery oand protect the correlative rights of the landowners. ECL 23-0301. In fact, thesamount to a taking of mineral rights without just compensation in violation of


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28, 2007); Bass Enters. Prod. Co. v. U.S., 381 F.3d 1360, 1364 (Fed. Cir. 2004)Cent. Transp. Co. v. New York City, 438 U.S. 104, 124-45 (1978)).

Compounding these broad prohibitions are the many setbacks that are proposlimited variances available to industry. Specifically, the Revised Proposed Regulthe following setbacks in Section 560.4:

(a) No well pad or portion of a well pad may be located:

(1) within 500 feet from a residential water well, domestic supply or water well or spring used as a water supply for livestock or cro

(2) within 500 feet from an inhabited dwelling or place of assembly;

(3) within a primary aquifer and a 500-foot buffer from the boundarprimary aquifer;

(4) within a 100-year floodplain; and

(5) within 2,000 feet of any public water supply (municipal or othe

or the boundaries of any public water supply reservoir, natural lman-made impoundment (except engineered impoundconstructed for fresh water storage associated with fracoperations). See also SGEIS 7.1.11, pp. 7-73.

Importantly, unlike other states that measure setbacks from the wellbore, thefrom the closest edge of the well pad. Section 560.4(b). And, the Revised Proposeinclude a variance for only two of the five broad setback provisions (for (a)(1)

Additionally, before the Department can even consider a variance, the applicantlandowner and (as applicable) tenant consent for the variance.

Some of the newly proposed setbacks have substantive problems. The ReviRegulations include a new setback on water supplies for crops and livestock, wdiscussed in the SGEIS, and which further restricts where sites may be locatedExecutive Summary p. 22. Further, the term crops and water supply are not dethe requirement vague. IOGA recommends deleting or at a minimum, defining

With regard to testing in Section 560.5(d)(1), water used for irrigation purposes is nisolated as applicable sources to be tested in other states and the sources can blocate, because they may be as simple as a waterhole dug by a farmer.

Section 560.6(b)(1)(ii) contains an additional setback that will restrict availocate well pads, which provides that fueling tanks must not be placed within

i l i t mitt t t m t m d i l t d tl d l k d I


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where they normally are placed, resulting in more fuel transfers and the potential accidents.

In addition to the setbacks contained in Part 560, the proposed Part 7additional setbacks at Section 750-3.3, providing:

Well pads for HVHF operations are prohibited, and no SPDES permit wissued authorizing any such activity or discharge:

(1) within 4,000 feet of, and including, an unfiltered surface dri

water supply watersheds;(2) within 500 feet of, and including, a primary aquifer;

(3) within 100-year floodplains;

(4) within 2,000 feet of any public (municipal or otherwise) drinkingsupply well, reservoir, natural lake, man-made impoundmespring; and (See also SGEIS Section 7.1.11, pp.7-73.)

(5) within 2,000 feet around a public (municipal or otherwise) drwater supply intake in flowing water with an additional prohibit1,000 feet on each side of the main flowing waterbody anupstream tributary to that waterbody for a distance of one milethe public drinking water supply intake; and (See also SGEIS S7.1.11, pp.7-73.)

(6) within 500 feet of a private water well or domestic use spring, or supply for crops or livestock, unless the Department has granvariance from the setback pursuant to subparagraph 560.4(c) oTitle, adopted on XX, 20XX.

Again, the setbacks are measured from the closest edge of the well pad, notas is common in other states. See 750-3.3(b). More troublesome is the fact thathese setbacks are redundant with setbacks contained in proposed Part 560 and, therbe deleted or a reference to Part 560 incorporated in Section 750-3.3. See, e.g.

750-3.3(a)(2) (providing setback of 500 feet from, and including, a primary 560.4(a)(4) 750-3.3(a)(3) (prohibiting siting within floodplains). Others within Seare slightly varied from those contained in Part 560, but are similar enough that, atconfusion over the application will result. See 750-3.3(a)(4) (similar to Section 5750-3.3(a)(6)(similar to Section 560.4(a)(1)). It is also likely that, especially in thevariance provision an overly broad reading of the setbacks will be imposed to fu


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proposed revised Section 750-3.3, streamlining the setbacks and allowing a varianwith those provided in Section 560.4. Additionally, an updated Section 560.4, a

the revisions to Section 750-3.3 is also included within the attached Exhibit A.

Proposed Section 750-3.5(c)(1) presents an additional limitation that weligibility for an exemption from SPDES permitting requirements contained in prop750-3.5(b) for many sites. The provision provides:

(c) At a minimum, in order for the department to make a determination thatwill not result in the degradation of ground or surface water resourceparagraph 750-3.5(b)(2) of this Part:

(1) the top of the target fracture zone, at any point along any part of length of the wellbore, for HVHF must be deeper than 2,000 feground surface and must be deeper than 1,000 feet below the basfreshwater supply; and

(2) the owner or operator must have measures in place to ensure complirequirements of paragraphs 750-3.7(k)(1), (2), (3), (4), (6), and (7) o

subdivisions 750-3.7(l), (m), and (n) of this Part.

In addition to these general disqualifiers, the proposed SPDES general permoperations is unavailable for sites located in certain buffer areas:

(1) within 500 feet of a principal aquifer

(2) within 300 feet of a state or federal wetland;

(3) within 300 feet of perennial or intermittent streams, as described in Parthis Title, storm drains, lakes or ponds. See 750-3.11(d); see also SGpp.7-73.

Finally, all of these buffers and setbacks are supplemented with the revisedpublished in 2011,3 which includes as proposed mitigation a number of other prareas where drilling may occur:

(1) Prohibition on HVHF construction and drilling activities occurring i

grassland habitat of 30 acres or more during nesting season of grasslGrassland Focus Areas See SGEIS Executive Summary p. 24; see a7.4.1.2, pp. 7-79-82.

(2) Site specific ecological assessment and implementation of mitigation HVHF activities in contiguous forest patches of 150 acres or more in


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(3) Site specific EIS required for HVHF on principal aquifers or withibuffer outside of principal aquifers. SGEIS Executive Summary p

SGEIS 7.1.11, pp.7-73.

Given the breadth and extent of setbacks that were originally proposedconcerned that yet further setbacks and prohibitions have been added to the ReviRegulations. Industry is particularly concerned because there is a complete abfactual basis for most of the setbacks as well for the extensiveness of the setbacks iProposed Regulations or the SGEIS. Indeed, industrys proven track record would regulation, not further, more stringent prohibitions as has occurred in the Revi

Regulations.

In IOGAs view, the prohibitions on siting within a primary aquifer anfloodplain are unnecessary. Industry has an excellent track record of drilling waquifers for many years without incident which would support allowing drilling iFurther, the prohibition on 100 year floodplains is unneeded. Operators in other stdrill in floodplain areas, with effective, proven contingency methods that avoid infloods. In fact, the experience of the natural gas industry in the Northeast during

Irene demonstrated that the natural gas industry is more than capable of dealingflood conditions. There were no incidents reported at natural gas sites. In a similaopposes the requirement for a specific EIS for principal aquifers. Like primary aquhas decades of experience drilling in these areas without incident.

It is also evident from the paltry regulatory support documents putativelcompliance with SAPA that the Department has not considered other factors in prextensive prohibitions and setbacks. Two factors that are highly relevant to the lo

pads include terrain and the availability of surface rights. Terrain is an obvious isslittle explanation.4 The Southern Tier where most of the shale development will ocof the state that has hilly terrain, with steep slopes and limited areas that are suitpads. There is nothing in any of the analysis put forth by the Department that indDepartment has considered this limitation in relation to the prohibitions and setbabeen proposed. Likewise, it is very common in New York State for landownersprohibit surface access as part of an oil and gas lease. Yet, there is nothing in tsupport documents that indicates that the Department considered this limitation in r

prohibitions and setbacks. As a consequence, the Revised Proposed Regulationsextremely difficult, if not impossible, to find proposed well pad locations whprohibitions and setbacks are factored in with limitations created by to terrain and su

Of greatest concern to the industry is the failure of the Department inProposed Regulations to include a general variance provision or waivers to provi


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which that allow applicants to vary or modify the governing regulations. Attachedis a listing of these regulations.

Many of these provisions, if not the majority, are a general variance allowing any provision of the regulatory program to be varied provided estandards can be met. Such general variances are provided for many industriepurpose is to handle waste, and on a permanent basis, including hazardous and radioboth during transport and at waste management facilities. See 6 NYCRR 360-variance for solid waste management facilities); 6 NYCRR 361.1(allowing hazardous waste disposal facilities); 6 NYCRR 364.1 (allowing variance for

transporters); 6 NYCRR 370.3 (allowing variances for hazardous waste systems); 6 NYCRR 373-1.1(allowing variances for hazardous waste treatmentdisposal facilities); Id. at 373-3.10(allowing variances for owners and operators waste facilities); 6 NYCRR at 376.1 (allowing variances for hazardous waste lanNYCRR 376.4 (allowing variances from treatment standards required for hazardous waste); 6 NYCRR 380-3.5 (allowing variances for discharge andradioactive material to the environment); 6 NYCRR 381.8 (allowing variances folow level radioactive waste); 6 NYCRR 382.4 (allowing variances for low leve

waste disposal facilities). Petroleum storage facilities are also provided a genprovision. See 6 NYCRR 614.1. Indeed, even as part of remediating suspectcontaminated sites as part of the Brownfield Cleanup Program the Department allfrom a strict cleanup standard to suit a particular site. See 6 NYCRR 375-3.8(e)(NYCRR 375-1.8 (allowing flexibility in remedial programs).

It is evident that even where, by statute, a substance is designated hazardouor otherwise a contamination risk, the Department has consistently included a flex

provision allowing site-specific standards that are protective of the environment. HVHF, a temporary process with numerous safeguards included in the practice anthe evolving regulatory standards, virtually no variance provisions are providedemonstrably absent a general variance provision such as is provided for the soland radioactive waste industries, despite the critical need for one in light of tsetbacks and prohibitions the HVHF industry must follow. The Department hasrationale for its disparate treatment of HVHF, an industry whose practices presentfewer risks to the environment than industries involved in management, transport ansolid waste, hazardous waste, radioactive waste, and petroleum - all industrieshistory of discharges to the environment and corresponding environmental conwhose regulations contain generous variance provisions.

As the Department is well aware, the oil and gas industry has an excellent trNew York State both in terms of developing deep wells and hydraulically fracturing


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provision, render much of the state off-limits to oil and gas development. A propprovision for Part 560 and for Part 750-3 is included in Exhibit A.

Additionally, these proposed setbacks and prohibitions are arbitrary anbecause the draft SGEIS5 does not provide data or other record support for therestrictions that the Department has proposed. Indeed, even in its response to cDepartment provides no basis for the setbacks and the need to expand them. Previofrom industry have pointed out that the proposed setbacks vastly exceed those requstates and the Department fails to provide a reasoned basis for asserting that thoseinadequate. Such a failure renders the Revised Proposed Regulations arbitrary an

and subject to annulment. See New York State Assn of Counties v. Axelrod, 78166-69 (1991) (finding regulations lacked rational basis because of lack of evidencesupporting across the board increase in cost); see also Law Enforcement OfficersCouncil 82, AFSCME, AFL-CIO v. State, 229 A.D.2d 286, 291 (3d Dept 1997) (housing regulation arbitrary and capricious because it contains a minimum sqrequirement while double occupancy housing does not contain such a requirementof Appeals inNew York State Association of Counties cited the often-repeated genan administrative regulation will be upheld only if it has a rational basis

unreasonable, arbitrary or capricious. New York State Assn of Counties, 78 NThe Revised Proposed Regulations do not provide record support for a number ofsetbacks and, in particular, for the increases to setbacks previously included Proposed Regulations. In the absence of this explanation, the Revised Proposedcould not stand judicial challenge.

Compounding this arbitrary and capricious treatment of the oil and gas Revised Proposed Regulations impermissibly assert state jurisdiction over federal w

the consequence that it will be extremely difficult, if not impossible, to site well paroads. As noted above, Section 750-3.11(d) of the Revised Proposed Regulations doperator from obtaining the general stormwater permit if any activities are locatefeet of a federal wetland. (The Revised Proposed Regulations now include a wetland applicable to Part 750-3. See 750-3.2(b)(54) (defining wetland regulated pursuant to Article 24 of the Environmental Conservation Law and any oregulated under Section 404 of 33 U.S.C. 1251 et seq.). Initially, IOGA questauthority of the Department to include within the definition of wetland wetlands tfederal wetlands. As the Department is well aware, the limits of the Departmentregarding wetlands are detailed in ECL Article 24. This effort to incorporate fedinto the regulatory definition is, therefore, ultra vires.6

The buffer contained in Section 750-3.11(d), which is three times great bli h d b t t t f N Y k l t d f h t tl d ll


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logging roads and the like, this potential proposed setback could have devastating on the development of the shale resources in New York. Indeed, substantial addit

the Marcellus shale will now be foreclosed from development through use of the HGeneral Permit, and operators would have to expend significant additional time andindividual SPDES permitting process, which could ultimately result in adjudicatorya waste of the resource in contravention of ECL 23-0301. With these new buadditional setbacks contained elsewhere in the Revised Proposed Regulations, the areduced available areas, which were previously estimated to make approximatelyresource off-limits to development, are further restricted such that it will be difcompany to justify an investment in New York. As mentioned above, a varianc

desperately needed to avoid lengthy cost and delay in permitting and this illegal exDepartments jurisdiction over wetlands should be eliminated from the ReviRegulations entirely.

In addition, there is a fundamental unfairness to this restriction. No General Permit imposes a 300 foot restriction based on proximity to wetlands or anresource. Indeed, the one general permit that includes any buffer at all includes onbuffer, applicable to the actual deposit of waste on the ground near the wetland, in

to HVHF operations, which may only discharge stormwater. The other five SPpermits contain no wetland or similar buffers, including, notably, the SPDES constrfor well drilling activities issued April 1, 2010. See SPDES General Permit foDischarges from Construction Activity (GP-0-10-001) Requirements for Well DrilliNYS Dept of Environmental Conservation (Apr. 1, 2010), ahttp://www.dec.ny.gov/docs/water_pdf/welldrilling.pdf. Therefore, any other industry could place their operations 100 feet from a New York-regulated wetwetland or other permit, while, at the same time, that applicant could utilize the SPPermit. The same unfairness exists for those projects proposed to be developed ithe wetland, which could use the state freshwater wetland permitting program. Indindustry subject to Department regulation must comply with a flat prohibitiowetlands. (And, to the extent any buffers exist, those other programs could obtainrelation to the buffer). This regulatory prohibition prevents solely the HVHF using a SPDES general permit while being located near a wetland, and restricts theHVHF industry to utilize the existing statutory freshwater wetland permit progra

sites.

Additionally, with respect to federal wetlands, any other industry could devas directly adjacent to the wetland with no wetland permit, and still utilize a NY SPPermit. No other Department program attempts to usurp or piggyback on Fedeauthority and then compound this illegal extension of its regulatory authority with


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wetlands, where none exists at federal law, not only does this extend the jurisdiction impermissibly, but it conflicts with the Clean Water Act.

More specifically, in the absence of this restriction by the Department, Nationwide Permits (NWP) exist that would allow HVHF operations to dischargdisturb federal wetlands while also using the SPDES General Permit. For exampincludes in its Nationwide Permit Program a specific NWP for construction or moutfall and associated intake structures. See Army Corps. of US Engineers, 201Permits, Conditions, District Engineers Decision, Further Information, and Defcorrections), Permit #7 (2012), available athttp://www.usace.army.mil/Missions/C

RegulatoryProgramandPermits/NationwidePermits.aspx. The ACOE has also authone-half acre loss of waters of the United States for the purpose of placing utility linpipelines carrying natural gas. Seeid. at Permit #12. There are a number of otherabsent this substantial prohibition, an HVHF operator could utilize to develop its wid. at Permit #18 (authorizing minor discharges of dredged or fill material into up toan acre of federal wetlands); see also id. at Permit #19 (allowing up to 25 cudredging in waters of the United States); see also id. at Permit #33 (authorizistructures, work, and discharges, necessary for construction activities, access fills

of construction sites); see also id. at Permit #43 (permitting discharges of dredged oto construct storm water management facilities).

Even assuming it is legally permissible for the Department to infringe upagencys regulatory authority in this way, it is confusing to the extreme that thwould prohibit HVHF operations within 300 feet from wetlands from using a SPPermit when the very Federal agency regulating them has determined those disturbed or impacted using the expedited NWP process. Beyond these numerous Nordinarily available to an applicant, an individual permit could also normally be appproposed 300 foot buffer, therefore, also forecloses the HVHF industry from utilizinfederal statutory scheme to develop its property in an efficient manner which mregulatory burden. What this means is that an HVHF operator could obtain an apprACOE to disturb wetlands to build its well pad, to then have the Departmeindividual SPDES permit application, which would subject an operator to protracted proceedings, and which could ultimately preclude development, all on th

excessive 300 foot buffer.

Critically, the Departments actions in engulfing all of the wetlands regulateFederal agencies deprive the various Federal agencies charged by law with regwetlands the opportunity to exercise that authority. This provision must be deletmodified to, at a minimum, remove the federal wetlands subject to other agencies


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III. State Administrative Procedures Act (SAPA) IssuesAs IOGA commented previously in its 2012 Comments, the 2011 Proposedand the related Regulatory Impact Statement (RIS) and Regulatory Flexibi

(RFA) fail to comply with a number of the mandates of SAPA. Several defecexist in the current Revised Regulatory Impact Statement (RRIS) and the ReviseFlexibility Analysis (RRFA) issued in conjunction with the Revised ProposedIndeed, some of the defects have worsened.

IOGA previously submitted substantial comments regarding the essentia

that the RIS detail the significant financial costs to industry to comply with the 2Regulations. See SAPA 202-a (3)(c)(i) & (iii). To aid with this effort, IOGAassessment of the permitting and planning costs associated with the 2011 ProposedThe RRIS acknowledges receipt of these costs, but largely reports the numbers aand excessive, without documentation to support that claim. The RRIS notes somewere made to obtain more information; however, it fails to provide a statement sebest estimate in the absence of an analysis of costs as required by SAPA 20Rather than complying with these statutory requirements and either accepting the

provided by industry or documenting meaningful alternative numbers, the Departmethis issue by asserting that the cost will include the potential costs that the regulateshould have expected from the mitigation measures and/or permit conditions thidentified in the rdSGEIS. NYS Dept of Environmental Conservation, ReviseImpact Statement: High-Volume Hydraulic Fracturing - 6 NYCRR Parts 52, 190, 5

and 750, Proposed Regulations (2013); availahttp://www.dec.ny.gov/regulations/87440.html.

This position fails to recognize that the Revised Proposed Regulations and tstandards being developed under the SGEIS are being developed in tandem, on a If the Departments position were true, there never would be a requirement to assenew regulations if those regulations are evaluated under the State Environmental QAct. This, of course, is not true. Accordingly, the RRIS and related documents provide a quantifiable best estimate of cost to demonstrate the cost for the impleand continuing compliance with, the rule to regulated persons. See RRIS; Sa(3)(c)(i). Without this estimate, the enactment of the Revised Proposed RegulaSAPA. More importantly, there is no assessment of the cost to comply withProposed Regulations or a meaningful basis to assess less costly alternatives Accordingly, the Department has failed to comply with a number of statutory SAPA, including those mandates which require that agencies minimize the cbusinesses.


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the RRIS. This violates SAPA. Likewise, the Department has not provided ananalysis of the cost to develop all of the plans that are required to support permit

These regulatory omissions must be corrected. When these direct costs are incluindirect costs incurred in the many areas of the state that will be off limits to resulting in loss of investment in the leases, geologic assessments and the like, the inescapable that the Department has violated SAPA. (To say nothing of the staggcompliance with the Revised Proposed Regulations).

Additionally, the Revised Proposed Regulations now contain a requirement thfor HVHF well permits pay all permit fees required under the Environmental

Law and that the applicant . . . pay any costs assessed by the department pursuant0109(7) of the Environmental Conservation Law and . . . sections 617.13 andNYCRR. See 560.3(f). Although 6 NYCRR Section 617.13 putatively allows thto recoup its costs in preparing or reviewing an EIS, including a chargeback proportion of the lead agency's actual costs expended for the preparation of a geneis the first time that the Department has announced its intention to assess these industry. Notably, even though the process to develop the SGEIS has been approximately four and one-half years, the Department never raised this issue publ

the Department should be estopped from asserting these costs retroactively at thiprocess. In addition, the RRIS fails to specify any estimate of the actual costs thhas expended in preparing the SGEIS, and has failed to provide any indication of hto each applicant will be determined and assessed. As the costs to prepare thuniquely within the Departments knowledge, omitting this information in its assessto industry in the RRIS cannot pass muster under SAPA. Indeed, the RRIS dmention that there is a cost associated with this new application fee requirement, other new costs the Revised Proposed Regulations include.

Lastly, the proposal to assert SEQRA fees through 6 NYCRR 617.13 and 6even acknowledge the limits on those costs provided in the Departments regulations. As provided in the regulations, those costs are limited to a pdevelopment and other costs set forth in Section 617.13(b), (c) and (d). ODepartment is required to follow its own regulations. See Era Steel Constr. Corp.A.D.2d 795, 799 (3d Dept 1988). Particularly relevant here is subparagraph (d)

costs associated with applications regulated under the minerals program. Since thprogram is part of the minerals program, the Department is limited by subparagraamount that can be charged to each applicant. Under that regulatory provision, ecould be charged a maximum fee for each unitdeveloped based upon a percentagcost to develop the well pad and the access road, and the cost to run any utilities, well pad. IOGA is willing to accept this limitation as a compromise concerning this


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previously commented that the RIS is required to have sufficient discussion of altethat the RIS failed to do this, which was particularly egregious given the significan

imposed on the regulated community and the failure of the Department to incorporflexibility into the Revised Proposed Regulations. Additionally, IOGA noted that iidentify a number of less costly alternatives to avoid and/or minimize impacts to community, including small businesses. 2012 Comments, Tab 3, p.3. The Racknowledge that any alternatives were suggested in public comment, particuindustry to be regulated, and instead continues to rely on the limited no-action alterndenial of permits alternative. This violates SAPA. A significant evaluation of acostly alternatives is required to properly finalize and adopt the Revised Proposed

Once again, IOGA is submitting proposed changes to the Revised Proposed Regulaaccomplish the Departments goal of protecting the environment while providingwith necessary flexibility. Should the Department fail to adopt these changes, iagain, in further violation of SAPA.

Perhaps the most egregious violation of SAPA is the failure of the Dacknowledge the significant regulatory impacts on small businesses and to identifyminimize those impacts. As the Department is well aware, SAPA contains a requir

Department to prepare a regulatory flexibility analysis. See SAPA 202previously commented that the RFA failed to consider impacts to small businesseHVHF as required by SAPA. IOGA additionally provided letters from ten companies intending to engage in HVHF operations in New York that meet SAPAsmall business. Notably, at least eight (8) of those letters were from operators wtheir prior investments that were intended to develop shale resources in New Yorkare in jeopardy, or were going to be sold because of the significant regulatory cosincluded in the 2011 Proposed Regulations.

7Each letter discussed the impacts

experienced by that small business and many asked that the Department provide fof the impact to small businesses and propose alternative, less costly requirements tbusinesses to be competitive in the HVHF field. Several of the letters also emphthat their businesses and the oil and gas industry in general, will be forced to stop din New York if the regulatory requirements remain as burdensome as then proposed

The RRFA does not acknowledge any of these comments or the many other chave been received from small businesses. Instead, the RRFA outright states texpected that small businesses . . . will be engaged in HVHF itself. See NEnvironmental Conservation, Revised Regulatory Flexibility Analysis for Small Local Governments,p. 4 (2012), available athttp://www.dec.ny.gov/docs/administrhvhfrfa2.pdf. This statement patently false, as is demonstrated by the small buattached to the 2012 Comments and the new small business letters that are attac


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previously commented), which requires that the RRFA make an effort to determinto those businesses.

Accordingly, the RRFA is defective in its failure to consider any of these impbusinesses that may engage in HVHF operations. This is a direct result of the Department to acknowledge that small businesses will be impacted by the ReviRegulations and to provide regulatory flexibility in the revised proposal to minimito small businesses. Of course, the Department can still make revisions to the RevRegulations to incorporate regulatory flexibility and, therefore, minimize the imbusinesses. The best example is the need to provide general variance provisions,

variance provisions in the many other regulatory programs administered by theconsistent with IOGAs comments above. Also, the Department must eliminate a nregulatory proposals identified above that clearly are in excess of the jurisdDepartment.

IV. Technical Commentsa. 551.6 Financial Security

As mentioned above, IOGA acknowledges the amendment to proposed Secspecify that the Department will approve a bonding cap for each owner. Howpreviously cited bonding levels of $15,000 to $60,000 for Ohio and West VPennsylvania considering a blanket bonding cap of $600,000. West Virginia ultima bonding limit of $250,000 in Pennsylvania adopted a bonding limit of $6Department did not acknowledge the expertise of its sister states currently engagiFurther, this proposed regulation provides financial uncertainty for industry, as the

able to reliably predict the capital requirements for a particular permit requiremindication whatsoever of the bonding the Department may impose. This uncertaintySAPA, as discussed above. It warrants noting that the Department includes a varianin at least two other regulatory programs (hazardous and radioactive waste) to allowto demonstrate financial responsibility and thereby be relieved from excessassurances. See 6 NYCRR 373-2.8 (allowing a variance from financial assuranceunder the hazardous waste treatment, storage and disposal facilities program)NYCRR 3.8 (allowing a variance from financial assurance requirements for hazfacilities); see also 6 NYCRR 383-1.5 (providing procedure for variance frassurance requirements for low-level radioactive waste disposal facilities); see also383-6.11 (providing for variance from financial assurance requirements for radioland disposal facilities). A similar program could be incorporated in the ReviRegulations.


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b. Part 553 Well Spacing RequirementsIOGA commends the Department for continuing to include a variance pro

well spacing provisions, consistent with the recognition in the statute that nonconshould be available to operators. ECL 23-0503(3). However, the PropoRegulations do not go far enough in that they do not incorporate the statutory standin ECL 23-0503(3) for establishing a unit that does not conform to statewRecommended additions are set forth in the IOGA revisions to the RevisRegulations. See Exhibit A. Many operators believe that when prudent planning

resource development considerations are put into effect together with the many resetbacks that are proposed by the Department and the natural limitations oflandowners restrictions to surface access that it will be necessary to propose nounits and to propose wellbore paths that do not conform to the requirement to initial wellbore. Accordingly, these variance provisions will be important towhether the development of deep shale resources can be conducted in New York ooperable or profitable basis.

c. 554.1(c)(1) Recycling to the Maximum Extent FeasibleThe Department modified proposed Section 554.1(c)(1) from the 20

Regulations to incorporate changes that could create significant additional costs aburdens upon industry. The 2011 Proposed Regulations based the requirement to pdisposal plan on whether there is a probability . . . that brine, salt water or other powill be produced or obtained . . . in sufficient quantities to be deleterious to theenvironment. Now, the Department has removed that limitation. Inst

disposition/disposal plan is required for all permit applications, as well as areported to the department on the Sundry Well Notice and Report form that requiresfrom the department. See 554.1(c)(1). This makes no distinction for de minimof materials required for disposal, particularly for the Sundry Well Notice andrequirement, which may involve changes that do not generate waste, and yet a fluid would be required.

Further, the spectrum of materials that must be managed in the plan has greaPreviously, the Department proposed to require disposal plan for fluids. Now, thhas increased this to include used drilling mud, flowback water, and productionAdditionally, this proposed regulation now contains a requirement that [t]he owner] state in its plan that it will maximize the reuse and/or recycling of used drilling mwater and production brine to the maximum extent feasible. Id. While industry em


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would require an operator to follow what is viewed as the maximum reuse/recycregardless of cost. This is an unreasonable burden to impose on industry and i

example of where the Department has crafted the Revised Proposed Regulations in is too restrictive and without the required regulatory flexibility.

To address the unreasonableness of the requirement that recycling and/or drilling mud, flowback water and production brine be to the maximum extent festill accomplishing the goal to recycle and/or reuse materials as often as possibprepared suggested revisions to Section 554.1(c)(1) in the attached Exhibit A.

d. 556.2(b), (c); 560.6(c)(28)(29); EPA NSPS, 40 CFR 60 Subpart OFlaring IssuesThe Department made some revisions to various proposed regulator

governing potential air emissions related to the HVHF process. See, e.g. 6 NYCRR(c), 560.6(c)(28), (29). The Revised Proposed Regulations require that ventinflowback must be through a 30 foot flare stack (unless previous wells show no hydin the gas) and must be ignited whenever possible. 560.6(c)(28). The stack mu

igniting device. Id. The Revised Proposed Regulations also require that reduccompletions, with minimal venting and flaring, must be preformed if the infrastructto transport or market the gas.

Over this past summer and fall the United States Environmental Protec(EPA) proposed and adopted New Source Performance Standards (NSPS) for oil including those that are completed using hydraulic fracturing unless more stringentregulations are in place. The rule covers any gas well that is an onshore well drill

for production of natural gas. (Federal Register August 16, 2012; 77 FR 4regulation became effective October 15, 2012. The federal regulations will be mthan the Revised Proposed Regulations as of January 1, 2015, except for the New Yand workover regulations at 6 NYCRR Part 556.2(b). Until this date, underegulations, the owners/operators have the option of using reduced emissions(RECs) or completion combustion devices (with a continuous ignition source), threquired in the Revised Proposed Regulations. The federal regulations encouraREC and complete combustion devices in the interim. For fractured and refractuthe federal rule generally requires owners/operators to use reduced emissions comknown as RECs or green completions, to reduce VOC emissions from wellTo achieve these VOC reductions, owners and/or operators may use RECs ocombustion devices, such as flaring, until January 1, 2015. As of January 1, 2015, ooperators must use RECs and a completion combustion device. The rule does not


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a completion operation associated with refracturing performed at a well is modification under CAA section 111(a), because physical change occurs to the we

emissions increases during the refracturing and completion operation. (Federal Re16, 2012).

The Revised Proposed Regulations (6 NYCRR Part 556.2(b)) prohibit the to the atmosphere during a flowback or workover for more than 48 hours. Furthindicates that flaring is considered a release of gas and must then be limited to 48 han extension filed on a per well basis. Such a requirement is infeasible as most wwill exceed a 48 hour period allowing for no clean up or flowback time. To file for

each well will be labor intensive. Furthermore, these restrictions exceed thoseEPAs NSPSs Subpart OOOO and may be operationally impossible to meet.

IOGA recommends that the Revised Proposed Regulations follow, or inreference, the federal regulations. The federal regulations allow for more flexibiREC use before January 1, 2015 and are not dependent on gathering lines. MRevised Proposed Regulations will be out of date if they are not amended before Janto be as strict as the federal regulations. There are no time limits on the flowback o

completion in the federal regulations since completion times will vary from Flowback, as defined by the federal government, ends with either well shut in or whproducing continuously to the flow line or to a storage vessel for collection, whicfirst. See 77 FR 49497. This change should be made to the Revised Proposed Regtime limits imposed by the Revised Proposed Regulations cannot be met, are boperators, and would require more paperwork from the operators and unnecessatime of state employees. Moreover, since paperwork burden was not discussed in tyet a further violation of SAPA.

e. 560.2(b)(4) Best Management PracticesThe Revised Proposed Regulations include a clarification to the proposed

best management practices at Section 560.2(b)(4). This section now management practices to mean measure or methods used to prevent or minimimpacts on air quality, biological resources, land, and water quality causeddeepening, plugging back or converting or producing a well subject to this Part. (emphasis added). The changes noted in this definition broaden the duration encompassed in the definition, as well as the scope of impacts that must bAdditionally, no changes were made to make this definition consistent with the defimanagement practices contained in 6 NYCRR 750-1.2 as IOGA previously suggea separate definition of best management practices applies to SPDES permi


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reclamation. See 560.3(a)(16) & (17). Nearly all of the impacts cited in the defimanagement practices are irrelevant to these topics. The definition should, therefor

f. 560.2(b)(7); 560.3(d)(1); 560.5(h) Chemical Disclosure RequiremThe Revised Proposed Regulations include new requirements to disclo

contained in hydraulic fracturing fluid, including most notably a new requirement tcontents of the hydraulic fracturing fluid after fracturing is complete, a requirechemical constituents used in an HVHF well on an online chemical disclosure better defined trade secret protections.

IOGA fully supports the Departments efforts to increase transparencyconstituents through new sections 560.2(b)(7), 560.3(d)(1) and 560.5(h)(4). Meservice company industry who may seek protections for the chemical constihydraulic fracturing fluid are generally comfortable with the Departments appRevised Proposed Regulations; however, these companies have a few concerns. the Departments approach and the Revised Proposed Regulations vastly overstateimpact from additives to hydraulic fracturing fluid by referencing material safet

(MSDS) instead of analyzing the actual make up of the fluid as a percentage. Proposed Regulations should provide at least some acknowledgement that any chemhydraulic fracturing fluid are diluted by substantial measure. This dilution evaluating the impact a chemical constituent has on the environment in relation process. Referencing an MSDS does not provide an accurate view of the impactmake-up of the fracturing fluid contains such a small percentage (in the range of additives.

It is commonplace for substances used every day by consumers as well ashave a standard based in parts per million, or even parts per billion. For exampadded to drinking water used every day by millions of people, but in much less quadescribed on the MSDS sheet, which makes the MSDS sheet not relevant toexperienced by water consumers. If a ppm or ppb standard was used for HVHF, perspective to the actual risk presented, instead of reviewing the potential dangersin its concentrated form as listed on the MSDS sheet. Such an approach allows thand the public to review the properties and any hazards associated with these diluted form consistent with how industry utilizes all of the additives in the field.8

IOGA commends the Department for acknowledging protections for traproposed Part 560 that are important to various sectors of the HVHF industry. Sserves both New York States right to know with the protections normally afforde


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additive proposed for use (see 560.3(d)(1)(ii) & (2)), while the identity of each aprotected in the post-completion disclosures. See 560.5(h)(1)(viii) & (2). Th

corrected.

It is also noted that the proposed SPDES regulations require disclrepresentative assay of the concentrations of chemical constituents present treatment or disposal of HVHF wastewater for POTWs, privately owned disposal for UIC wells. See 750-3.12(c)(2), (d)(2) & (f)(3). Additionally, the POTW owned disposal facilities must maintain a list of chemical constituents used in Hwith a representative assay of the concentrations of chemical constituents presen

other parameters that may be present. See 750-3.12(c)(5) & (d)(5); see also (c)(there are no specific trade secret protections notwithstanding that those constituentsduring the well permit application and completion stages. While the general SPDEallow an applicant to request confidentiality pursuant to 6 NYCRR Part 616, provide sufficient protection, especially given the broad disclosure requirements HVHF program and the tailored trade secret protections the Department proposeIOGA recommends, therefore, that proposed Part 750-3 be modified to incorposecret protections contained in Section 560.3(d). See Exhibit A for proposed revisio

750-3.12.

In addition, Section 560.3(d)(1) should do more to encourage flexibility components of hydraulic fracturing fluid as part of a permit application, such as alpotential ingredient lists to be filed, with clarifications as to which of those ingrediewere actually utilized provided in the later disclosure included in Section 560.5(h)(of flexibility would take into account the fact that, very often, permit applications wmany months (6 to 12 months) before the well is actually drilled and before

geologic conditions are identified through the drilling phase of well developmennecessitate changes in the frac fluid composition. By allowing a broader arraychemicals to be used in the hydraulic fracturing stimulation process, the Departmenindustry, including the service sector of the industry, the flexibility that they nadjustments at the time of stimulation consistent with the statutory mandate toultimate recovery of the resource.

IOGA previously submitted comments regarding the requirement to complfrac fluid analysis for each well permit contained in Section 560.3(d)(1)(v) (wsubdivision (d)(1)(viii)), as well as Sections 750-3.7(k)(2). The 2012 Comments rconducting a biennial master chemical review with the HVHF service companiespermit specific review. As the Department did not accept this recommendation, aprevious remarks regarding the green hydraulic fracturing fluid analysis are


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Additionally, while IOGA acknowledges that the documentation making frac fluid analysis requirement, both in Part 560 and Part 750-3.7, is now limited

data and studies, industry is unclear as to the meaning and application of the redocument that additives exhibit reduced aquatic toxicity. See 560.3(d)(3.7(k)(2). As with chemicals used in any industrial process, there are many substannot been fully tested on all species. Presumably, the new language limiting thexisting data and studies would not require any additional aquatic toxicity studies, bbe clarified.

Further, Section 560.6(c)(23)s prohibition on the use of hydraulic fracturin

than those identified in the well permit application without Department approvclarified to provide flexibility, i.e. by allowing the Department to approve changes written approval following if necessary. Such flexibility is necessary, as noted abovchanging conditions in the field that can only be discovered during the drilling fracturing process. Alternatively, allowing applicants to identify a broad array of cmay be used in the stimulation process would solve this problem by allowing flexib

Finally, IOGA notes that there is an inconsistency in the Revised Proposed

An applicant for a well permit must identify the proposed hydraulic fracturing servpursuant to Section 560.3(d)(1)(vii). Practically speaking, this company may chansix to twelve months between submitting an application, receiving approval, anhydraulically fracturing a well, and there is no opportunity to amend this informdisclosures or on the Pre-Frac Checklist and Certification. IOGA recommends thato the service company be identified on the Pre-Frac Checklist and Certification.

g. 560.3(a)(16) Invasive SpeciesThe Revised Proposed Regulations now include a requirement for an applica

a list of invasive species found at the well site and description of the best managemwhich will be used for preventing the spread of these invasive species, including mused to prevent new invasive species from being transported to the site. See This provision, which is unique to any Department industrial or commercial permitpresents a number of concerns.

In 2003, the State took initial steps to address the growing problem of invand statutorily established the Invasive Species Task Force (Chapter 324 of the York 2003). The Task Force studied the problem of invasive species arecommendations to the Governor and Legislature in the Final Report of the NeInvasive Species Task Force (Task Force 2005). Subsequently, the Legislature imp


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and local planning and construction projects. New York State Invasive SpeciesStrategy, 4.3, p. 4-8 (2011). The recommendations clearly state this approach shlimited resources and energies on state and local projects, not private sectAdditionally, the Management Strategy does not recommend best managementprotocols for construction projects or other industrial activities. The provisionssection 560.3(a)(16) call for the creation of a management strategy by industry thcontemplated, vetted or recommended by the states own Invasive Species Council,its Invasive Species Management Strategy nor is it discussed as part of the processestatute and subsequent tasks forces to address real and challenging invasive species

Furthermore, the construction and surface disturbance activities associateddiffer in no way from the historic development of conventional well sites development of typical commercial sites such as shopping centers. As the InvCouncil conducted a rigorous review of potential industrial and commercial activitserve as conduit for the spread of invasive species and failed to identify oil/development as a primary activity of concern, there is no basis for this Accordingly, IOGA believes that the Department is placing undue burden on the HVwithout any basis in law or policy, and without merit. Accordingly, Section 560.3(

be removed from the Revised Proposed Regulations.

In the event that the Department does not remove this provision, IOGA recothe Revised Proposed Regulations include flexibility to develop and implemenspecific invasive plan. Prescribed requirements on analysis, mapping, identificatiassessment, requirements to reintroduce native (yet now currently absent) significant vehicle washing requirements, should not be advanced as prescriptive re

Additionally, failure include the potential cost associated with develomanagement practices for preventing the spread of invasive species and 2) preventing transport of new invasive species to the site, violates SAPA, as descIndeed, in the absence of any guidance on how to control invasive species at an HVindustrial site, the time and cost to develop such a program may likely be Currently, no Department regulations require a permit applicant to address invasivethe exception of the transport of firewood. In the absence of any analysis as to cosand RRFA, however, IOGA cannot be certain how much this will cost and whaconsequences will occur. It is, therefore, critical that the Department remove this rprovide significant changes so that it is workable for industry.

h. 560.3(a)(17); 750-3.2(35) Partial Reclamation


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Comments, there will be a variety of factors that will dictate the rate at whideveloped on a common well pad. Well pads typically are not reclaimed at all untihas had all of the wells drilled, the wells are hydraulically fractured and the weturned into production. Where full well pad development is spread out over timestabilized and seeded & mulched, where necessary, but not reclaimed. Requiringreclamation promotes unnecessary land disturbance, which will actually increase theimpacts from stormwater runoff.

i. 560.3(e) Application ProceduresThe Revised Proposed Regulations now contain a procedure for submissioof HVHF well applications, which, as mentioned above, is useful to industry. Howe

concerned that proposed Section 560.3(e)(5) will create an opportunity for ineffipermitting process. By allowing comments on local and site specific issues that addressed in the Final Generic Environmental Impact Statement, the Departmeitself up to continual comment challenging the sufficiency of the SGEIS and its appparticular site. Additionally, this Section should make clear that the Part 560govern the application process and do not create any new requirements that might

as being subject to the Uniform Procedures Act, including any process that would gright to an adjudicatory hearing.

j. 560.5(c) Non-Routine Incident ReportingThe Revised Proposed Regulations include modifications to Section 560.5

reporting of non-routine incidents. IOGA notes that a non-routine incident isstatute at ECL Section 23-0305(8)(h), and the Revised Proposed Regulations do

specific definition outside of proposed Section 560.5(c). IOGA recommends that aadded to the Part 560 definitions section. This terminology could be used in a definroutine incident. As currently proposed, the term non-routine incident includewater complaints and other items which were not really intended as a non-routine istatute. IOGA has revised proposed Section 560.5(c) to be more consistent withdefinition in Exhibit A, attached. This terminology could be used in a definition ofincident.

k. 560.5(d) Sampling ParametersIOGA reviewed and compared the Revised Proposed Regulations to indus

pre-drill baseline water parameters completed in the neighboring states (PA & OH)number of resulting comments. Section 560.5(d)(1) was modified to include


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Section 560.5(d)(1) added a requirement to test the Static Water Level (whwhich requires, for accurate results, invasive measures on the subject water wellthese procedures will greatly increase the risk of exposure for the landowners welland expose industry to potential claims from landowners concerning adverse imwell by reason of the invasive procedure. Currently, industrys program is only tinvasive measures, which means industry does not open or measure anythinconfines of the water well or source. This minimizes the risk of a landowner claimwell has been contaminated, or damages to their water pump, flow or other water have occurred.

Using any invasive measure for testing has a very high risk. Industry gperforms invasive measures like this where required by lease water clause requiremexist but generally are not a common part of a typical industrys program. IOGA aapplying the when possible provision to the static water level testing could be diSection contains no discussion on how the Department will determine if testing is p

Section 560.5(d)(1) also adds Volatile Organic Compounds (VOCs), anBTEX, to water sampling parameters. Industry in other states currently reports B

baseline analyses; however, IOGA questions the need to require sampling of other of the water sampling requirements. Other VOCs are not compounds commonlHVHF industry, so no later comparison would be needed. Further, operations in do not require this sampling. Sampling BTEX helps industry understand if theissues commonly associated with any underground storage tank (UST) and otherindustry activity present. IOGA would, therefore, recommend deleting the resample VOCs other than BTEX.

In the event the Department does not delete this requirement, industry reunderstanding of which VOCs the Department will want tested, particularly to be cost, as there would be an added cost per sample. If VOC testing is required, IOGAadopting a list of the VOCs that must be tested to the Revised Proposed Regulatiotable within the regulations or an addendum.

Section 560.5(d)(2) now includes a requirement that all significant deviatiobaseline compositions be reported to the Department. This needs to be better c

what is a significant deviation and the timing for when a determination is mastate has a requirement like this. Only one state (CO) currently has a post-drrequirement, but it does not have any notification of variances with analyticalimportant consideration here is that there are common and normal natural, sanalytical variances that are acceptable in environmental analysis. If thi


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that going into the sampling process. The Revised Proposed Regulations do not ainto account or require any assessment of the well construction itself as part of requirement or identification of existing pollution sources that might already be iwell. Finally, what specifically constitutes a reasonable attempt to (1) obtain apermission; and (2) to sample and test a well? Industry needs to understandrequirements that will be in effect.

l. 560.5(f) Internet Posting of Waste Tracking FormsThe Revised Proposed Regulations have added a requirement for the owner

to post completed Drilling and Production Waste Tracking Forms, for any wasinstead of recycled or reused, on the owner or operators website within 30 daysthe waste by the disposal company. See 560.5(f). As the Revised Proposed Regula Waste Tracking Form to be prepared for any used drilling mud, flowback watebrine and drill cuttings removed from the well site, each time these materials mova disposal facility (i.e., each truckload), a form would have to be prepared. Id. Fothis could result in hundreds of postings per well.

Initially, IOGA questions the legal authority for this requirement, which based upon right to know principles rather than environmental mitigationrequirement should have a statutory foundation, which is totally lacking here. In requirement appears to be an arbitrary requirement that is being imposed upon thindustry without any similar requirements being imposed upon other industriindustries that engage in the business of generating, transporting or disposing of wthe Department rarely requires posting of information on the internet and in no industry required to post information on its own website for informational pu

Further, no federal environmental law imposes this requirement on the permit holdof disclosure; the federal agency generally maintains and posts information of this nform on its own website. All of this points to the conclusion that the Department in excess of its legal authority.

IOGA, therefore, recommends that the requirement to post Waste Tracking operators website be removed, or in the alternative, that the Department be reposting the information on the Departments website, perhaps in a similar manner

environmental remediation sites and spill incidents or oil and gas well databases.

m. 560.7(c) Mineral Oil Containing Drill CuttingsThe Revised Proposed Regulations added a prohibition on the onsite b


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The wording used in Section 560.7(c) related to disposal (and seemingbeneficial reuse opportunities) should also be revised for consistency with SectionSee Exhibit A for proposed revisions to this section.

n. 560.7(i), (k); 750-3.7(k)(6) Radioactivity IssuesA number of revisions were included in the Revised Proposed Regulatio

radioactivity. For example, Section 560.7(i) now includes a requirement to analwater, production brine, and the soils adjacent to these fluids for radioactivity.

The oil and gas industry conducts periodic external radiation surveys presence of NORM in equipment and wastes. The finding of external radiation levof standards, which differ somewhat from state to state, triggers requirements to hand decommissioned equipment according to regulations. Survey results are determine the need for specific NORM management procedures to ensure approprhygiene practices. It is also a routine practice to survey soils during the decomsites. A practical suggestion is to require periodic external radiation surveys and

trigger level above which wastes and surplus equipment must be treated accordinmanagement procedures.

As the Department is well aware, data collected by the Departmedemonstrated that flowback and produced water do not present significant NORM iYork State. In April, 1999 study entitledAn Investigation of Naturally OccurrinMaterials (NORM) in Oil and Gas Wells in New York State concluded that tNORM in produced water is relatively insignificant and does not amount to any

hazard. Specifically, the study included 43 brine (salty waters brought to the byproduct of gas production), 10 scale, two sludge, two water and one soil sampbrine and one scale sample indicated radium isotope concentrations that were grepicocuries per gram (pCi/g) total radium (pCi/ml for liquid samples such as brineradium results, 0.95 and 24 picocuries per milliliter (pCi/ml) for one sample, anpCi/ml for the other (Ra-226 and Ra-228 respectively), were found not to pose public health or the environment. This conclusion is supported by an analysis of roathe brine with the U.S. Department of Energys (USDOE) Residual Radioac

Guideline computer model (RESRAD). The scale result, 11 pCi/g for Ra-226 andRa-228, was also found not to pose any threat to public health or the environment damount of scale deposited in gas plant piping. Based upon this analytical data threached the following conclusions:


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2. Scale build-up on gas well casings is limited and though one scale srevealed slightly elevated NORM concentrations, the scale is neither radioenough nor present in sufficient quantities to pose an environmental threat.

3. Concentrations of NORM in tank bottom scales and sludges and in brisediments were not found to pose a significant threat to the public heaenvironment. If construction did occur on a former brine pit, constractivities and filling would likely decrease potential exposure well beloNYSDEC TAGM-4003 cleanup guideline of 10 mrem/yr. Tank bottom swould not be present at a high enough concentration and/or in sufficient qua

to generate a hazard to the public health or the environment.

4. Disposal of brines on roads as an aid to snow and ice control does not possignificant radiological dose to the public due to NORM constituents. Thiswas examined extensively using U.S. D.O.E. RESRAD modeling to potential doses to the public

5. Recycling of oil and gas well equipment should not pose a public heaenvironmental threat due to the small quantities of scale present and thconcentration of NORM found present in the scale.

6. This investigation demonstrates that the concentrations of NORM in oiwastes in New York State were at least two to three orders of magnitude than those found in the North Sea. The NORM concentrations found in NewState well field wastes do not pose any significant occupational oroccupational radiological exposure to workers or residents.

Against this backdrop, any effort to require extensive testing of water, soil is without a scientific or factual basis and is based upon speculation that these meNORM concentrations beyond those that are been documented in the field. Addinclusion of such excessive sampling requirements is arbitrary and capricious. Proposed Regulations, and the record, provide no scientific or other basis for proposed in Section 560.7(i) and (k). In light of the Departments prior study issues, with the above-cited conclusions, it can only be described as arbitrary and c

the Revised Proposed Regulations to ignore the Departments own previous, exteand require significant, unnecessary sampling without any justification for confindings of those studies. IOGA therefore, recommends, at a minimum, that furtheis needed as to how often the Department expects the flowback water or productiosampled & tested for NORM. The Revised Proposed Regulations currently sug


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is vague as it could include full quantification of the concentrations of various radjust screening for the presence of same. This should be clarified. If this sectirequire sampling for every well, it seems to be a bit excessive. Based on industrysthis area, it does not seem very likely that there will be enough NORM in the watedetectable with instruments that can be used on site; therefore, a lab analysis woulbe required. Furthermore, industry expects that the NORM concentrations in the inwill be very low as during these stages it is mainly injected water that is produced.

Additionally, if flowback water or production brine is coming from the samthe quality of the material isnt going to change dramatically, especially if its com

same well pad or a well pad in close proximity geographically. For all of these reto sample every load or well seems excessive, and the Department should specifyrequirements in a practical manner or allow operators to develop a sampling plan aFluid Disposal Plan required pursuant to proposed Section 554.1(c). IOGA composite sampling over a 24 hr period and testing one time per well pad prior tobeing taken to disposal, or that a periodic analysis of water (e.g. quarterly) occur, awater is to go to a POTW. If the water is to be disposed of by injection or reuNORM content is irrelevant. Industry is unaware of any requirement to ana

concentrations in produced water disposed of by injection anywhere else. The mmanner to address with this issue is, as is noted above, to review the needs of a speits geology and include necessary sampling in the Fluid Disposal Plan requiredproposed Section 554.1(c).

Regarding the requirement to analyze production brine and flowback watand Ra228, industry reports that these parameters are commonly evaluated for d(DW) sources. Based on industrys prior experience, for high salt/barium concent

like flowback water, the selection of analytical methods is critical. The standard Dthese (e.g. EPA 903/904) are very problematic to matrix interferences. The methe sample to be spread on a dish (called planchete) and higher salts will cause thcrack causing errors in the emission counting process. Additionally, these methouse barium as the surrogate of choice to show the accuracy and recovery of thecontrolled environment. Since barite is used in some drilling fluids for a weightinginterferes with a possible biased high result thereby limiting the usefulness Therefore, use of Gamma Spectroscopy (Gamma Spec) is preferred when the ana

salts/barium potentially exists. The problem with Gamma Spec is that one has toassumptions of equilibrium since the isotopes of Radium (226 and 228) are alemitters and not a gamma emitter. Normally this is done through the inference/aBismuth 214 (Bi214) in equilibrium of Radium 228 in after a 21-day in growth proca gamma emitter and can be measured through gamma spec. This method is more r


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process. The analysis alone takes 21 days to complete accurately with a commotime of 28-30 days from an analytical lab. Given that all flowback water and promust be removed from a well site within 45 days after completion of drilling and silengthy turnaround time could jeopardize an owner or operators ability to propwater within this timeframe. See 560.7(a). Also, for the duration of samplinanalysis, additional storage on site may be required, which would cause additdisturbance. IOGA also notes that commonly, the costs per sample for a suite of Nwould approximately be $300-$500 per sample. This would not include sa(consultant if collected third-party). Therefore, a significant cost burden is imsampling requirement.

IOGA also recommends that the requirement for testing other analytes as ddepartment should be eliminated from the Revised Proposed Regulations particularly in light of the potential significant cost and delay in turnaround time onresults.

For the testing of soils and other solids, the sampling issues are even mwhich will result in further costs and delays. Again, this is an issue that does not

or scientific basis to support the proposal. As the Department is well aware, New has significant experience with the handling and disposal of solids from MarcePennsylvania. Several landfills are already handling these materials and at least onChemung County Landfill, was required to develop and implement a screening screen for NORM concentrations in drill cuttings emanating from Marcellus sPennsylvania that are being disposed of at that landfill. That landfill utilizes radiatiothe scale which weighs all wastes coming into the landfill. The detector is regulaand detection levels have been set under Department supervision. Notably, eve

system has been operational for several years, there have been no loads of drill cuttdetected concentrations of NORM at the detection levels specified by the Departmen

As an alternative to a prescriptive regulation requiring testing, IOGA recothe Department allow the industry to apply best management practices for the apotential NORM accumulation in soils and equipment. Integral to these managemethe use of commercially available direct reading hand-held radiation detection inalong with risk-based action criteria. Sample equipment is as follows:

ANALOG Ludlum model 3-97 NORM meter with internal and external probes

This is a very robust NORM meter used in industry. Meter employs 2 probes with dscale.


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radiation and is used to identify or flag potentially NORM contaminated process equ(even when in operation) This probe can also be used to measure gamma dose ratesareas.

This single meter is a very cost effective unit as compared to purchasing 2 separate dedicated to a scintillation & pancake probe. Note this meter is not intrinsically safe

ANALOG Ludlum model 3IS meter connected to 44-2 scintillation probe

This meter and probe gives the use"Intrinsically Safe" instrument thatpenetrating gamma radiation and isidentify & flag potentially NORM process equipment (even when in oThis probe can also be used to meagamma dose rates in occupied area

Such management practicesmany oil / gas producing states

and have been shown to be protective of the both worker and public health anscreening equipment / solid wastes for proper disposal / disposition. Typical trigderive soil and equipment NORM criteria that is protective of public health in accTitle 10, Part 20 of the Code of Federal Regulations applying a public exposu

100mREM/yr. The evaluation of worker exposures should continue to follow exDepartment of Labor Regulations. These management practices and measuremwould also be effective for the evaluation of NORM accumulation at the well hequipment and would be applicable to detecting NORM affected equipment additional management practices as well as equipment that can be released for reand or disposal. Such protocols would limit the need for confirmation laboratoavoid delays that could impact operations.

IOGA is willing to work with the Department to define the basis of management practices that is aligned with existing federal regulations and recomthe NRCP that would be both protective of human health and cost effective. Eshould be allowed to specify the screening methodology, screening levels and requa screening level is exceeded as part of their Fluid and/or Cuttings Disposal P

d S i 554 1( )(1) d (4) i Thi ld b


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PROPOSED PART 750-3

IOGA commends the Department for its efforts to harmonize the wregulations with the well permitting regulations. However, as noted above, tdifferences between definitions and there are requirements that are imposed in the regulations that are not required for well permitting. Every effort should be made the two regulatory programs and explain any differences that are necessary.

In addition, the Department has not responded to IOGAs comments Comments to simplify the water quality regulations. As currently drafted, thi

difficult to follow as an HVHF SPDES Permit can either be an individual permitpermit. Section 750 3.2(b)(26). Although we recognize that there may be sefficiencies in allowing the term to be used interchangeably for either an individuageneral permit, it creates regulatory confusion.

More importantly, once again, the entire program seems to be drafted withdisqualifying operators from obtaining general permits and requiring individual SPFor example, pursuant to the proposed Section 750-3.11(d), there are number of dis

disqualify eligibility for a general permit, including distance-based limitations fromstreams, wetlands, storm drains and the like. Likewise, pursuant to paragraph (f)regulatory provision, inherently vague standards, such as adverse effect to threatenits critical habitat or adverse effect to a property listed or eligible for listing onRegister of Historic Places can serve as a basis to disqualify an operator from obtainpermit. As was explained in the 2012 Comments, activities at well sites, including high-volume hydraulic fracturing for stimulation, are no different from the stormwathan many other industrial commercial sites which operate under general permits

State. Moreover, they are no different from the thousands of well sites that have beein New York under the regulatory auspices of the Division of Minerals or with a gewithout any documented problem resulting from discharges from the oil and gas indentire focus of the regulatory scheme should be changed to presume the general peapplicable and only require individual permits in very unique circumstances.

Lastly, the Department has failed to comprehend the 2012 Comments, whicthat a number of operators design and operate well pads in a manner such that

discharges during active phases of drilling and completion. Those operatorstormwater and utilize that stormwater as part of water that is used in the drilling oprocess. In other contexts, the Department has recognized that if the site is opedischarges of stormwater, that no individual SPDES permit or general permit is Revised Proposed Regulations should include an exemption for sites that do not dis


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o. 750-3.7(o) Groundwater Monitoring RequirementThe Revised Proposed Regulations now include a provision authorizing th

to require groundwater monitoring in relation to either an individual or general SPSee 750-3.6(o), 3.7(o). There is no indication as to when or under what criteria thwill require groundwater monitoring. IOGA questions this provision, because definition concerning the number of groundwater monitoring wells that will be frequency of sampling, the sampling parameters or the amount of baseline data collected prior to drilling. In rare circumstances, groundwater monitoring wells analyze groundwater conditions after drilling, but the Department should proceed cagroundwater monitoring as a condition to drilling. First, it takes months to estadata from groundwater monitoring. Will this delay drilling? In addition, monitoring wells could serve as a mechanism to promote methane migration if the completed properly. Groundwater monitoring wells are not constructed with the prare required in New York State for casing and cementing oil and gas producing methane is known to exist in the shallow horizons in a number of places across Tier, this requirement could exacerbate those conditions. Finally, there was no mcosts associated with the imposition of this requirement under the RRIS. A

requirement should be deleted from the regulations.

Again, since this requirement has not been explained, it is not surprising ththis requirement has not been evaluated. This is yet, again, a further violation of SA

p. 750-3.11(f)(4) SPDES General Permit ProhibitionsIOGA previously requested deletion of the prohibition from use of the H

general permit where HVHF operations [ ] adversely affect a property that is listfor listing on the State or National Register of Historic Places absent agreements government agencies to mitigate effects. 750-3.11(f)(4). With the additionproposed multiple, independent and redundant safeguards to preclude contamleaving the site, IOGA repeats its comment that this prohibition should be deleted,prohibition on use of the HVHF General Permit for HVHF operations that advelisted or proposed to be listed endangered or threatened species or its critical ha3.11(f)(3).

Additionally, these prohibitions ignore the temporal nature of HVHF operincluding time to construct the well pad, the HVHF process occurs for only a mamonths at a given site, after which the impacts from the well producing natural gasnon-existent. The industry has a long history of working with officials at the Ne


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q. 750-3.11(h)(v) Fluid Disposal Plan RequirementsProposed Part 750-3 within the Revised Proposed Regulations contains a re

prepare a Fluid Disposal Plan as part of an application for either an individual Hpermit, or for use of the HVHF General Permit. See 750-3.6(d), 3.11(h)(v). In redundancy of this provision, as Section 554.1(c) requires preparation of such a planProposed Regulations also contain an inconsistency. While Section 554.1(c) contingency plan may also be required at the departments discretion, Part 750-3 reapplicant submit a contingency plan. 750-3.6(d), 3.11(h)(v). This discrepanresolved, with the fluid disposal plan being submitted as part of the permitting process the SPDES process and the requirement for submission of a contingency plan bei

Departments discretion.


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EXHIBIT A


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EXHIBIT A

Proposed Modifications to the Revised Proposed Regulation

PROPOSED REVISIONS TO PARTS 553-560

6 NYCRR Part 553, Well Spacing

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