*** Updated 11/30/12 with link to revised text of proposed hydrofracking rules ***
This week, the New York State Department of Environmental Conservation (“DEC”) formally sought a 90-day extension of its rule making process for its proposed regulations governing the natural gas drilling technique of high-volume hydraulic fracturing (“hydrofracking” or “fracking”).
The 90-day continuation includes a new 30-day public comment period on the revised text of the proposed rules, which were posted to DEC’s web site. DEC will accept comments on the revised draft regulations from December 12, 2012 through January 11, 2013. The 90-day rule making extension will delay any decisions on new hydrofracking permits until 2013 or later.
Governor Cuomo and DEC cited the New York State Department of Health’s (“DOH”) ongoing review of the health impacts of the proposed regulations as the reason for the delay in adopting the rules.
Under Section 202 of the State Administrative Procedures Act (“SAPA”), DEC has one year from the date of the last public hearing announced in its notice of rule making to adopt the proposed rule. That deadline was set to expire this week. In order to keep the rule making process from expiring (and thus avoid having to start the rule making process over again), the agency submitted a notice of revised rule making to the New York Department of State (“DOS”).
The notice of revised rule making involves more than just a simple request for an extension. SAPA requires the notice to include the revised text of the rule, as well as an assessment by DEC of all public comments received on the proposed rule (DEC received more than 66,000 comments on the 2011 draft regulations). DEC is also required to provide an analysis of the issues raised by the comments and significant alternatives suggested therein.
It remains to be seen whether additional regulatory changes may yet result from the pending DOH review. Substantial revisions could require another notice of revised rule making and comment period, pushing the date for final regulations further into 2013.