December 29, 2009
Last week, New York City’s Department of Environmental Protection (“DEP”) called upon New York State’s Department of Environmental Conservation (“DEC”) to rescind its Draft Supplemental Generic Environmental Impact Statement (“DSGEIS”) addressing natural gas drilling in the Marcellus Shale formation. The Marcellus Shale formation, which contains large quantities of natural gas, extends from Ohio and West Virginia through parts of Pennsylvania and into New York’s Southern Tier. Notably, the formation includes lands in the watershed that provides drinking water to New York City and, in total, approximately half of the state’s population.
DEP has taken the position that any drilling in the watershed should be banned due to risks posed to the drinking water supply by the technique used to extract gas from the underground shale, known as high-volume hydraulic fracturing. In its comments on the DSGEIS, DEP makes a number of arguments to support its contention that the DSGEIS does not adequately analyze the potential significant adverse environmental impacts of drilling in the Marcellus Shale formation, including the following:
The DSGEIS does not adequately analyze the possibility that contaminants may spill into surface waters or migrate underground into natural drinking water supplies or water supply tunnels;
- The DSGEIS’s requirements for the disclosure of the chemicals used in the hydraulic fracturing process are insufficiently protective of human health and the environment;
- The DSGEIS engages in “segmentation” in violation of the New York State Environmental Quality Review Act (“SEQRA”) by failing to adequately analyze potential significant adverse environmental impacts associated with waste disposal, surface water withdrawals, induced growth, cumulative impacts, air quality impacts, pipeline construction, and ancillary infrastructure;
- The no-drill buffer zones proposed in the DSGEIS are inadequate to protect New York City’s drinking water supply; and
- The DSGEIS does not sufficiently analyze alternatives to hydraulic fracturing, and does not at all address alternatives to natural gas development.
DEP also issued a report in conjunction with its comments.
The comment period for DEC’s DSGEIS has been extended to December 31, 2009. While New York City’s interest in upstate drilling is based primarily on potential impacts to its watershed and water supply infrastructure, upstate municipalities are likely to focus on other issues, including tax revenues, road and truck traffic impacts, noise impacts, and preemption of local regulatory authority.
December 17, 2009
The Manhasset Lakeville Water District has secured a $2.75M settlement for costs incurred in response to contamination of the aquifer underlying the Water District’s service area. Sive Paget & Riesel represented the Water District in its efforts to recover these costs.
The Water District provides drinking water to its 45,000 customers in Manhasset, Great Neck, and New Hyde Park, NY. After Freon-22 was detected in the aquifer waters, the Water District was forced to build a treatment system to remove the contaminants and render the water safe for public consumption in compliance with New York State drinking water quality standards.
SPR assisted the Water District in locating parties that were potentially responsible for the contamination, investigating the historic source of the contamination, and bringing a federal litigation in the Eastern District of New York against the owners of the source of the contamination for recovery the Water District’s costs. The litigation asserted federal claims under the citizen suit provisions of the Safe Drinking Water Act (SDWA) and the Resource Conservation and Recovery Act (RCRA).
The Water District has now settled certain of its claims in that litigation for $2.75M. These settlement funds will offset costs incurred to build the treatment system, legal and engineering fees, as well as the ongoing operation and maintenance costs of removing contaminants from the drinking water supply. The settlement also serves as an important example to public water districts, demonstrating that ratepayers need not bear the burden of addressing environmental contamination in the water supply.
The following SPR attorneys represented the Water District in this matter: David Yudelson, Daniel Riesel, Dan Chorost, and Ashley Miller.
November 10, 2009
Last week, Congress passed legislation that “formally urges the U.S. Environmental Protection Agency to conduct a new study on the risks that hydraulic fracturing poses to drinking water supplies.” The statement, which is found in the 2010 Department of Interior, Environment, and Related Agencies Appropriations Act, calls for a “transparent, peer-reviewed process that will ensure the validity and accuracy of the data.” An earlier EPA study, conducted in 2004, found no risk, but has faced criticism. Current EPA administrator Lisa Jackson has acknowledged that a new study is needed.
Earlier this year, the Fracturing Responsibility and Awareness of Chemicals Act of 2009 (“FRAC Act”) was introduced in both houses of Congress. Currently, hydraulic fracturing is exempted from regulation under the Safe Drinking Water Act (“SDWA”). The FRAC Act, if enacted, would repeal the exemption, thus subjecting hydraulic fracturing to the SDWA’s regulatory scheme and requiring drillers to disclosure the chemical ingredients of fracturing fluid.
Hydraulic fracturing, a process used to extract natural gas from shale, involves the use of high-pressure fluid to fracture underground rock. The exact components of the fracturing fluid are unknown to the public, as drilling companies have maintained that the ingredients are proprietary. Nationwide, concerns have been raised about potential contamination of underground and surface drinking water by the agents and byproducts of hydraulic fracturing.
Last week’s legislation is of particular interest to New Yorkers because a gas shale formation underlies a significant part of the Catskill watershed which provides much of the City’s drinking water supply. New York’s Department of Environmental Conservation has recently released a draft Supplemental Generic Environmental Impact Statement (“DSGEIS”) on drilling in this shale formation. The comment period for the DSGEIS closes on November 30, 2009.
October 5, 2009
The New York State Department of Environmental Conservation (“DEC”) has released its draft Supplemental Generic Environmental Impact Statement (“SGEIS”) for natural gas drilling activities in the Marcellus Shale formation. The draft SGEIS supplements the existing 1992 Generic Environmental Impact Statement (“GEIS”) and analyzes the range of potential significant adverse environmental impacts of shale gas development using horizontal drilling and high-volume hydraulic fracturing known as “hydrofracking”. The draft SGEIS outlines safety measures, protection standards, and mitigation strategies that operators would have to follow to obtain permits.
The City of New York has a particular interest in the SGEIS because the Marcellus Shale formation underlies a significant part of the Catskill watershed which provides much of the City’s drinking water supply. Erosion, runoff, and possible contamination of groundwater with toxic chemicals are just three of the potential dangers highlighted in a report prepared for the City by environmental consultants Hazen and Sawyer/Leggette, Brashears and Graham. This report, available here in PDF, found that in addition to construction-related surface water impacts, the presence of a wellbore can “allow previously isolated contaminants to flow into shallow groundwater or surface water.” The SGEIS would allow drilling within a few hundred feet of reservoirs, with some mitigation safety measures in place. This would include the need for a site-specific State Environmental Quality Review Act (“SEQRA”) review in certain instances. Use of hydrofracking in locations outside of New York is thought to have contributed to groundwater contamination, with further investigations underway.
DEC is accepting public comments on the SGEIS from now until November 30, 2009. Mayor Bloomberg hasn’t yet given the City’s comments, nor the City’s overall position on the State’s plan, but has said he’ll do everything in his power to keep reservoirs safe.
August 31, 2009
In a recent report, the National Resources Defense Council (NRDC) found that the commonly-used herbicide atrazine has pervasively contaminated watersheds and surface water in the Midwestern and Southern US, and that the Environmental Protection Agency (EPA) is not using the best available science to detect the problem. Atrazine, used as a weed killer on corn, sorghum, sugarcane, and lawns, is regulated under the Safe Drinking Water Act (SDWA) and the Federal Insecticide, Fungicide, and Rodenticide Act (FIFRA). Under SDWA, EPA has determined that no more than 3 parts per pillion (ppb), as a yearly average, of atrazine may be present in drinking water.
The NRDC Report, “Poisoning the Well: How the EPA is Ignoring Atrazine Contamination in Surface and Drinking Water in the Central United States,” analyzed EPA monitoring data for surface and drinking water and found that all 40 watersheds tested had detectable atrazine levels, with more than half of those watersheds having average concentrations above 1 ppb, the amount at which aquatic vegetation is affected. The Report also found that both watersheds and drinking water systems had one-time peak atrazine concentrations well above 3 ppb; the highest peak concentration in a drinking water system was almost 40 ppb. Residents of many of the communities with atrazine spikes were unaware of the problem – testing is typically conducted by the chemical’s manufacturer, who reports the data directly to the EPA. Unless the concentration is above the 3 ppb yearly average, residents are generally not warned.
(more…)
August 28, 2009
Controversy continues over the process known as hydraulic fracturing (or “hydrofracking”) to recover underground natural gas deposits. Preliminary results from water sampling conducted by EPA have revealed chemical contaminants used in hydrofracking in wells utilized for drinking water in Pavillion, Wyoming. The results, while preliminary, may be the first demonstrated instance of hydrofracking causing contamination to water supplies.
Hydrofracking is currently being considered for use in a number of states, including New York, which is preparing an environmental impact statement for the potential use of hydrofracking for recovery of natural gas in the Marcellus Shale formation. The development of the Marcellus formation has been encouraged in the New York State Draft Energy Plan of 2009, calling also for safeguards in place to protect water supplies. Other states, including North Dakota, have defended the technology as environmentally safe (pdf). In addition, Congress is considering regulating hydrofracking by removing an exemption for the process under the Safe Drinking Water Act.
If contamination of water supplies can be confirmed as being linked to hydrofracking, it will no doubt impact the debate, and future potential uses of the technology.
August 19, 2009
Similar bills have been introduced in both the U.S. Senate and House of Representatives which would amend the Safe Drinking Water Act (SDWA) to eliminate an exemption for hydraulic fracturing, or “hydrofracking,” operations from required regulation under state underground injection control programs. The text of the Senate bill can be found at S. 1215 and the House bill at H.R. 2766.
The SDWA, under 42 U.S.C. § 300h, currently requires states to regulate, and imposes minimum regulatory requirements on, “subsurface emplacement of fluids by well injection” in order to protect drinking water supplies. The Act currently exempts from such requirements “the underground injection of fluids or propping agents (other than diesel fuels) pursuant to hydraulic fracturing operations related to oil, gas, or geothermal production activities.” The proposed bills would remove this exemption, thus requiring regulation and permitting of hydraulic fracturing under the SDWA. They would also require the disclosure by entities engaging in hydraulic fracturing of the chemical constituents, but not the proprietary chemical formulas, used in the fracturing process. Both bills are currently in committee.
The proposed legislation comes at a time when pressure to extract natural gas deposits via hydrofracking is mounting. For example, the Marcellus Shale formation in New York has been identified as a location for the possible use of hydrofracking technology. The New York State Draft Energy Plan of 2009 recommends the “development of the Marcellus Shale natural gas formation with environmental safeguards that are protective of water supplies and natural resources.” The New York State Department of Environmental Conservation is currently in the process of preparing a Draft Supplemental Generic Environmental Impact Statement for hydraulic fracturing to develop the Marcellus Shale. More information is available on NYSDEC’s website.
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