Assigns liability to a producer for actions leading to a public water system's failure to meet filtration avoidance criteria resulting in the loss of filtration

Subdivision (1) assigns producer liability with regards to actions performed or completed during the course of exploration, drilling or development of wells that produce, oil, gas, salt or hydrocarbon mixture, that directly result in a public water system failing to meet all of the existing filtration avoidance criteria established by 40C.F.R. § 141.71.

Subdivision (2) stipulates that violators shall be held liable for civil penalties and damages associated with the violation.

Subdivision (3) allows the commissioner to issue an order to suspend drilling operations whenever a violation involving this section occurs. Provides legal recourse for an aggrieved party through the issuance of an order to show cause.

Section 2. The public health law is amended by adding a new section 1170. Subdivisions (1), (2) and (3) are added to conform to the new section 23-0315 of the environmental conservation law, as it relates to the protection of potable water supplies.

Justification

New York State has been generously endowed with water resources which have contributed and continue to contribute greatly to the position of preeminence attained by New York in population, agriculture, commerce, trade, industry and outdoor recreation. It is the sovereign power to regulate and control the water resources of this state ever since its establishment has been and now is vested exclusively in the state of New York, except to the extent of any delegation of power to the United States.

New York State is home to the largest unfiltered fresh water aquifer in the country. The Delaware/Catskill watershed supplies 90% of the potable water used in New York City; essentially half of the state's population receives its drinking water from this system. In 1993 the U.S. Environmental Protection Agency (US EPA) granted New York City an exemption from having to filter the water coming from the Delaware/Catskill system, in exchange for New York City's compliance with a strict watershed control program.

New York City has invested about $2 billion in system maintenance and land acquisition in order to create buffer zones between the watershed and human activities that could be detrimental to the water system. Federal regulations regarding the exemption specifically state that a watershed control program must, "Monitor the occurrence of activities which may have an adverse effect on source water quality. The public water system must demonstrate through ownership and/or written agreements with landowners within the watershed that it can control all human activities which may have an adverse impact on the microbiological quality of the source water."

Both the City of New York and the Department of Environmental Protection (NYCDEP) have expressed grave concerns regarding the prospect of drilling in the Delaware/Catskill watershed and how it may affect New York City being able to retain the Filtration Avoidance Determination (FAD). The failure to obtain an extension of the FAD would require New York City to build a filtration plant for the Delaware/Catskill system which is estimated so exceed $10 billion, with an annual operating cost of $100 million. This would create a tremendous burden on ratepayers, whom already face exorbitant costs for water use.

The fact that federal regulations state a public water system coming under the exemption must monitor human activities which "may" cause an adverse impact, is a great concern. Water contamination has been confirmed in Sublette County, Wyoming and just recently in the neighboring state of Pennsylvania, where the state is seeking $440,000 in damages resulting from a waste pit that had a tar in the lining, leading to black fluid to seep into a nearby stream. This does not account for the 1,000 other cases of contamination in Colorado, New Mexico, Alabama, and Ohio. In the case of New Mexico, a survey documenting water contamination coming from unlined pits led to the state placing a one-year moratorium on drilling around Santa Fe, despite legal action taken by companies with active leases.

To say that there has never been or will never be water contamination resulting from the gas extraction process is an obfuscation of the facts. According to an article printed in the Ithaca Journal on November 8, 2009, over 270 drilling accidents involving wastewater spills, well contamination, explosions, methane migration and ecological damage have occurred in New York State in relation to gas production since 1979. Even if this represents a small percentage of accidents in proportion to successful drilling operations, New York City, and other municipalities currently holding onto a FAD, do not have the luxury of allowing human activities to occur within their respective watershed(s) when an accident "may" happen.

The state has borne great costs in clean-up and plugging operations of previous wells that were left by unscrupulous extraction companies. If an outright ban cannot be implemented due to constitutional constraints over ownership of mineral rights, than it is the duty of New York State to put in place other mechanisms to protect potable water supplies and discourage development in environmentally sensitive areas. It is estimated that of the 500 trillion cubic feet of natural gas trapped in the Marcellus Shale, that only 10% is recoverable. That amounts to only about 2 years of natural gas supply for the entire country at current consumption levels. We must evaluate our willingness to jeopardize our potable water for short-term gain and use our prescience in the prioritization of natural resources.

Prior legislative history

2011: S.4834/A.6922 (Colton)

Fiscal implications

None.

Effective date

This act shall take effect immediately.