January 4, 2013 Attn: Draft HVHF Regulations Comments New York State Department of Environmental Conservation 625 Broadway

Albany, NY 12233-6510 Dear Commissioner Martens: I am writing to comment on the Revised Express Terms 6 NYCRR Parts 550 through 556 and 560. My comments are given under protest, as I am convinced that the issuance of the revised regulations by the DEC without the prior publication of the final SGEIS is a severely flawed procedure. I reserve the right to comment on the draft regulations again after the final SGEIS has been issued. Notwithstanding this reservation, I offer the following comments with regard to the protection of Principal and Primary Aquifers in New York State. A definition is provided for a primary aquifer in Part 560.2(b)(20): primary aquifer shall mean a highly productive aquifer presently being utilized as a source of water supply by a major municipal supply system. A similar definition for a principal aquifer is provided in Part 560.2(b)(21): principal aquifer shall mean an aquifer known to be highly productive or whose geology suggests abundant potential water supply, but which is not intensively used as a source of water supply by a major municipal system at the present time. The only real distinction between primary and principal aquifers as defined in the regulations is whether they presently supply a major municipal water system, for which no definition is provided in the regulations or in the rdSGEIS of 2011, or in the Department of Health regulations Public Water System Definitions provided in Table 2.4 of the rdSGEIS of 2011. However, section 2.4.4.1 of the rdSGEIS clearly states that the Department of Health identified the primary aquifers in 1981. In order to enhance regulatory protection in areas where ground water resources are most productive and most vulnerable, the NYSDOH, in 1981, identified 18 Primary Water Supply Aquifers (also referred to simply as Primary Aquifers) across the State. (Emphasis added.) That was more than thirty years ago, long before the advent of High Volume Hydraulic Fracturing, so that the potential vulnerability of the aquifers to contamination from HVHF activities could not possibly have been considered. A comparison of the map of Primary Aquifers and the map of Primary and Principal Aquifers on the DEC web site shows both types of aquifers in and around population centers of similar sizes, ranging from hamlets to cities, throughout the potential gas drilling areas identified by the Department. The Department has presented no evidence that the 1981 identifications of primary and principal aquifers have been updated to consider the vulnerability of aquifers to HVHF activities, which was part of the stated original purpose of making a distinction. The department has failed to consider the total numbers of people who use water supplies on a temporary basis as summer and weekend residents or as tourists throughout most of the potential drilling area. The department has also failed to provide any justification for providing weaker protections to people whose water supplies come from one aquifer versus those whose water supplies come from another. The revised regulations, in Part 560.4(a)(3) provides that No well pad or portion of a well pad may be located within a primary aquifer and a 500 feet buffer from the boundary of a

primary aquifer. This Part of the revised regulations provides no such protection for principal aquifers. In Part 750-3.3(a)(2) states that well pads for HVHF operations are prohibited, and no SPEDES permit will be issued authorizing any such activity or discharge within 500 feet of, and including, a primary aquifer. However, this section of the revised regulations makes no similar provision for a principal aquifer. The only partial protection of principal aquifers appears in Part 750-3.11(d) HVHF operations within certain distances of specific surface or ground waters may be ineligible for coverage under an HVHF general permit and would require authorization under an individual SPEDES permit. At a minimum, HVHF operations sited within the following buffers cannot be authorized by an HVHF GP (calculated from the closest edge of the well pad): Principal Aquifer 500 feet. Thus the department may permit well pads within 500 feet of principal aquifers under Individual SPEDES permits. A study by researchers from Duke University (Methane Contamination of Drinking Water Accompanying Gas-Well Drilling and Hydraulic Fracturing, Osborne et al. 2011) showed methane migration to water wells that were located 3000 feet from active producing gas wells. The methane has to reach aquifers before it can reach water wells. Thus, this study is also relevant to primary and principal aquifers. The rdSGEIS (7.1.11.1) attempted to discredit this study by pointing to a single gas well in Otsego County where there were no unusual levels of methane detected in nearby water wells. However, the well in question, Ross 1 in the Town of Maryland, was permitted for 80,000 gallons of fracturing (below the Departments cutoff for HVHF), was never connected to a gathering system, was never an active producing well and has been plugged and abandoned (DECs on-line well data). That gas well never should have been included in the data. The rest of the data using active producing wells in other states showed a very high probability of migration of methane from gas wells to water wells up to 3000 feet away. The DEC should reevaluate that study, eliminating the erroneous data point. Even if that erroneous data point is not eliminated, when the average of all wells in the study is considered, the probability of methane migration from gas wells to water wells is very high. The data currently available indicates that a setback of 3000 feet would reduce but not eliminate the danger of methane migration. Protection for both principal and primary aquifers should be the same and Parts 560.4(a)(3) and 750-3.3(a)(2) should be revised to include principal aquifers. With those changes, the reference to principal aquifers in Part 750-11(d) can be eliminated. The 500-foot setback of well pads from primary and principal aquifers is insufficient and should be increased significantly. Until better information is available on methane migration a precautionary setbacks of 3000 feet should be established. Yours truly,