On February 23, 2011 a bill[1] was introduced in the New York State Assembly that would impose a moratorium on new permits for the drilling of wells using hydraulic fracturing and horizontal drilling until the Environmental Protection Agency (“EPA”) has issued the results of its pending study of the effects of hydraulic fracturing on drinking water and public health.  EPA expects to obtain preliminary results of its study by the end of 2012, and aims to produce a report in 2014.  Thus, the proposed law could significantly delay in the issuance of new permits for hydraulic fracturing in New York.  At present, an executive order issued by former Governor Paterson and continued by Governor Andrew Cuomo prevents the issuance of new permits for horizontal hydraulic fracturing until the completion of the Final Supplemental Generic Environmental Impact Statement (“SGEIS”) concerning this process.  The Assembly bill was sponsored by Steve Englebright (D), who represents Assembly District 4 in Suffolk County and is a geologist by training.

On March 4, 2011, a separate bill[2] was introduced in the New York State Senate that proposes modifications to the General Obligations Law.  These modifications would encourage the disclosure of the chemicals used during hydraulic fracturing.  The bill bars any contract relating to or referring to hydraulic fracturing from prohibiting disclosure of the chemicals used during that process, and bars the diminishment of pay to a hydraulic fracturing contractor based on a provision in the contract calling for the disclosure of such chemicals.  The Senate bill was sponsored by John Bonacic (R) of the 42^nd Senate District, which encompasses Delaware, Sullivan, Orange, and Ulster Counties, as well as the Catskill watershed system supplying New York City’s drinking water.

The two bills reflect different approaches to the ongoing concern among New Yorkers that hydraulic fracturing could have unintended consequences on drinking water and public health.  A recent article in the New York Times has raised such concerns in depth, based on previously unreleased reports by EPA and industry.  According to the Times, these reports indicate that naturally occurring radioactive materials in waste released from hydraulic fracturing wells are not adequately removed by sewage treatment plants or dilution before or during discharge into rivers that provide drinking water. The Times article focuses on hydraulic fracturing activity in Pennsylvania, where the use of this process has been much more extensive than in New York.  However, the article highlights an important issue that might be revisited as DEC works on the SGEIS; the initial draft SGEIS concludes that naturally occurring radioactive materials resulting from hydraulic fracturing pose very little health risk.