NORTHRUP

December 15, 2012 Attn: Draft HVHF Regulations Comments New York State Department of Environmental Conservation 625 Broadway Albany, NY 12233-6510 Re: Revised Proposed Express Terms 6 NYCRR Part 560, Section 560.2 Definitions and 560.4 Setbacks Summary The Department of Environmental Conservation (DEC) has chosen to issue its proposed rules and regulations for High-Volume Hydraulic Fracturing (HVHF), under PART 560, Operations Associated with High-Volume Hydraulic Fracturing prior to the issuance of the draft Supplemental Generic Environmental Impact Statement (dSGEIS). This compels us to address the regulations in isolation, unmodified by any potential relationship with the dSGEIS. The proposed regulations are all that New Yorkers have to depend on for environmental protections - if there are no clear protections in the SGEIS that augment the protections in the regulations. Unfortunately, the proposed regulations are lacking in protections for land uses, water bodies and surface property rights other than a few listed in Section 560.4. Importance of Specifying Protected Uses in the Regulations Absent clearly specified protections in the SGEIS, such as the prohibition of HVHF wells in the watersheds of New York Citys reservoirs, or absent a local land use ordinance, New York residents must depend on these regulations for protection from the encroachment of HVHF wells. The DEC proposes setbacks of HVHF wells for a token number of surface uses. If a surface use or water body is not listed in 560.4, it is not specifically protected by the DEC, unless it falls under a specific prohibition of HVHF wells in the dSGEIS. 560.4 Setbacks (a) No well pad or portion of a well pad may be located:

(1) within 500 feet from (sic) a residential water well, domestic supply spring or water well or spring used as a water supply for livestock or crops; No other water bodies no rivers, streams or lakes are protected by 560.4, with three exceptions: 560.4 (3), (4), and (5). There is no scientific evidence to indicate that methane migration from a HVHF well would be limited to 500 feet1. A shallow water well is more likely to be gassed by a nearby HVHF gas well than by a vertical gas well.2 Many water bodies wetlands, ponds, rivers, streams - will be gassed by HVHF wells, because the DEC proposes no setbacks from any of them in 560.4. (2) within 500 feet from (sic) an inhabited dwelling Five hundred feet is insufficient to protect a residence from the negative impacts of a HVHF well. The regulations themselves provide some useful scenarios of why 500 feet is inadequate. For instance, under 556.2 (b) a HVHF may be vented for up to 120 hours 5 days. That is more than enough time to gas whatever or whoever is 500 feet downwind of the drilling site.3 The proposed setbacks are at the low end of the range in the US. Horizontal fracking causes micro-quakes which can easily damage foundations within 500 feet of the well. Dwelling is not defined in the regulations or the ECL, but is synonymous with residence.4 Inhabited is not defined in the regulations or the ECL, but clearly a house or apartment building under construction is not inhabited. Accordingly, Inhabited dwellings does not include hospitals, schools, warehouses, barns, factories, stores, daycare centers, parks, gas stations, power plants, propane storage tanks, or offices all have been omitted from 560.4. The DEC may contend that a HVHF well would not be permitted adjacent to a schoolyard or hospital under some other regulatory mechanism, such as a SEQRA. But if that is the

http://www.nicholas.duke.edu/hydrofracking/methane-levels-17-times-higher-in-water-wellsnear-hydrofracking-sites 2 http://www.scribd.com/doc/88489724/Horizontal-Well-Leaks 3 http://www.endocrinedisruption.com/files/HERA12137NGAirQualityManuscriptforwebwithfigures.pdf 4 http://www.housingnyc.com/html/resources/hmc/sub1/art1.html

case, then the DEC should have no problem naming those protected uses in 560.4 unequivocally. or place of assembly; Place of assembly is undefined in the regulations or the ECL, but a place of assembly is defined in fire codes and zoning ordinances as a public auditorium, theater, church, restaurant, etc. Which means, there is no specific gas well setback in the regulations from an office building, hospital, grocery store, school yard, playing field, public park, etc.5 The DEC is grossly remiss in not including a comprehensive list of protected land uses in 560.4. A HVHF well can be drilled on anyones property without their consent, since there are no setbacks in the regulations from property lines. The spacing unit setbacks in Section 553 are for subterranean mineral- rights, not surface rights. If a surface owner does not own the mineral rights under their property, the well setback for the spacing unit could be on their property. Likewise, there are no protections if the surface owner is compelled to allow a HVHF well to be drilled on their property under Compulsory Integration. (3) within a primary aquifer and a 500-foot buffer from the boundary of a primary aquifer; Five hundred feet is close enough to gas most aquifers. There is no exclusion or setback for Principal Aquifers, which much of Upstate relies on for drinking water. Nor is there any science involved in this distinction between principal and primary aquifers, other than political science. (4) within a 100-year floodplain; and There should be a setback from floodplains, since a riverbank may be conterminous with the 100 year floodplain, so as written, there would be no setback from the riverbank. The 100 year floodplain needs to be updated in New York state before any HVHF well permits are issued.

5http://www.nyc.gov/html/dob/downloads/pdf/pa_guide.pdf

(5) within 2,000 feet of any public water supply (municipal or otherwise, or the boundaries of any public water supply reservoir, natural lake or man-made impoundment (except engineered impoundments constructed for fresh water storage associated with fracturing operations). The setback does not preclude a HVHF well from being drilled under any of these water sources. There are no setbacks for any other bodies of water a lake, river, or stream that are not used as public water supplies all of which can be drilled next to and drilled under. Wetlands are not a listed protected area. Unless a water body is named in 560.4, they do not have the same protections afforded the water bodies that are named. There should be a setback established from all rivers, lakes, streams and wetlands. There is no scientific evidence to suggest that a setback of less than 3,200 feet would be sufficient to protect water bodies from methane migration from HVHF wells. (b) All distances noted above are measured from the closest edge of the well pad. (c) The department may permit reasonable well location variances to the setback requirements in sections 560.4(a) (1), 560.4(a) (2) and 750-3.3 (a)(6) of this Title. Meaning, the Department of Mineral Resources can reduce or waive the setback from a water well or residence. But not for schoolyards, factories, warehouses, motels, hospitals, rivers, ponds, wetlands, barns, organic farms, vineyards, or daycare centers - because the setback of a HVHF well from those vulnerable uses and critical water resources is zero.

James L. Northrup 17 River Street Cooperstown, NY 13326

cc. Honorable James L. Seward Association of Towns