Toughen Fracking Regulations

Section 1. Legislative declarations and purpose. 1. The legislature recognizes that the expansion of natural gas development in the state of New York using hydraulic fracturing poses unique threats to human health and to the environment. The legislature further recognizes that New York's current laws are inadequate to protect against these threats.

2. As natural gas development expands, it is the highest priority of this state to protect human health as well as to ensure the safety of irreplaceable natural assets such as safe drinking water, clean air, wildlife, and the aesthetic beauty of the state.

3. Hydraulic fracturing utilizes components that are often toxic, that are non-biodegradable, and that are virtually impossible to remove once they enter the natural environment. Many of these hazardous chemicals are known carcinogens and others can cause other life threatening illnesses. Drinking water contamination from hydraulic fracturing can lead to exposure to endocrine disrupting agents and to other chemicals that can cause kidney, liver, heart, blood, brain damage and other hazardous health effects.

4. Hydraulic fracturing operations withdraw millions of gallons of water from the ground and surface waters of the state, which are a precious, finite and invaluable resource, upon which there is likely to be an ever-increasing demand for present, new and competing uses. The withdrawal of ground and surface waters of the state should be regulated in a manner that benefits the people of the state and is compatible with long-range water resource planning and with managing such waters in the public trust for the benefit of all New Yorkers.

EXPLANATION--Matter in italics (underscored) is new; matter in brackets

[ ] is old law to be omitted.

LBD01287-01-7

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5. Hydraulic fracturing operations result in wastewater that returns to the surface laden with salt, heavy metals, other chemicals and radioactive elements. In other states, this wastewater is often stored in open pits until transported for ultimate disposal. Chemicals evaporate from these open pits, contributing to air pollution. Leaks and spills of chemicals from the trucks and waste pits may cause contamination of surface waters. Fracturing fluid left underground could migrate or seep through fractures in underground formations, cracks in well-bore casings, through abandoned wells, or otherwise to pollute groundwater. Given the increased prevalence of natural gas drilling in the state, these negative effects may increase if the process of natural gas extraction is not carefully and thoughtfully regulated.

6. One of the chief environmental and infrastructure assets of the state of New York is its drinking water systems, which play a fundamental role in the economic productivity and public health of the state. The policy of the state with respect to the management of shale gas extraction must be one of zero drinking water risk.

7. Furthermore, natural gas exploration must be carried out in a manner that is sensitive to the ecological richness and aesthetic beauty of the state. Widespread, uncontrolled natural gas development using hydraulic fracturing will diminish or destroy the natural beauty of the land and disrupt the natural habitat of wildlife. The legislature finds that natural gas development must be carried out to minimize these effects to the maximum extent possible.

8. Natural gas extraction can impose both monetary and non-monetary costs on municipalities and cause property damage or otherwise reduce the property value of private land owners. It is the intention of the legislature that all persons who undertake natural gas development in the state of New York take full responsibility for their actions, and act consistent with local concerns.

9. Although natural gas development provides the promise of economic benefit for the state of New York, the state must ensure that the benefits outweigh the costs. It is the policy of the state that natural gas development practices will be sustainable, respectful, and safe. This act is intended to ensure that goal is met.

§ 2. The environmental conservation law is amended by adding a new section 17-0709 to read as follows: § 17-0709. Wastewater treatment facilities.

Notwithstanding anything to the contrary contained in subdivision twenty-one of section 17-0105 of this article, the commissioner shall, after holding a public hearing with due notice, promulgate regulations establishing a standard of performance for the control of the discharge of pollutants from facilities which treat wastewater from hydraulic fracturing operations. This standard of performance shall reflect the greatest degree of effluent reduction which the commissioner determines to be achievable through application of the best available demonstrated control technology, processes, operating methods, or other alternatives, including, where practicable, a standard permitting no discharge of pollutants. This standard of performance shall remain in effect until such time that the federal government determines that a greater degree of effluent limitation is achievable by this category of facilities, at which time this standard of performance shall be superseded by such federal standard.

§ 3. Section 23-0101 of the environmental conservation law, as amended by chapter 846 of the laws of 1981 and subdivision 1 as amended by chapter 891 of the laws of 1984, is amended to read as follows:

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§ 23-0101. Definitions.

As used in this article, unless the context otherwise requires:

1. "Air pollutant" means volatile organic compounds (VOCs) as defined at 40 CFR 51.100(s), hazardous air pollutants (HAPs) as defined at 42 USC § 7412(b) and 40 CFR 63, nitrogen oxides (NOX), carbon monoxide (CO), methane (CH4), ethane (C2H6), particulate matter (PM10 and PM2.5), ozone (O3), lead (Pb), sulfur dioxide (SO2) and other air contaminants as may be identified by the department.

2. "Best management practices (BMPs)" are practices that are designed to prevent or reduce impacts caused by oil and gas operations to air, water, soil, or biological resources, and to minimize adverse impacts to public health, safety and welfare, including the environment and wildlife resources.

3. "Buffer zone" means all that area outside and surrounding the underground gas storage reservoir which the department approves as appropriate to protect the integrity of the reservoir, no part of which shall be more than thirty-five hundred linear feet from the boundary thereof.

[2.] 4. "Cavity" means an open or partially open space left after a salt has been solution mined.

[3.] 5. "Closed-loop system" means a system for handling oil or gas exploration, stimulation, or production wastes, including but not limited to drilling fluids and cuttings, hydraulic fracturing flowback, produced water, and residual sludges or brines, without the need for pits.

6. "Commissioner" means the commissioner of environmental conservation.

[4.] 7. "Consequences of any hazardous discharge" as used in this section means any detrimental effect to the health, safety, welfare, or aesthetic enjoyment of any citizen, resident, or visitor in the state by a hazardous discharge.

8. "Department" means the department of environmental conservation.

[5.] 9. "Environmental damage" as used in this section means damage to:

a. any waters of the state;

b. any land surface or subsurface strata of the state;

c. any ambient air within the state; or,

d. the wildlife or ecological systems in the land, air, or waters of the state.

10. "Fund" means the oil and gas [fund as established in section eighty-three-a of the state finance law] account established under chapter fifty-eight of the laws of nineteen hundred eighty-two.

[6.] 11. "Field" means the general area underlaid by one or more pools.

[7.] 12. "Gas" means all natural, manufactured, mixed, and byproduct gas, and all other hydrocarbons not defined as oil in this section.

[8.] 13. "Groundwater" means water in a saturated zone or stratum beneath the surface of land or water.

14. "Groundwater well" means any well designed or used for the sole purpose of obtaining groundwater.

15. "Hazardous release" as used in this section means the release of a hazardous substance.

16. "Hazardous substance" means substances which meet the following criteria, including but not limited to those listed in N.Y.C.R.R. § 597.2:

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a. because of their quantity, concentration, or physical, chemical or infectious characteristics cause physical injury or illness when improperly treated, stored, transported, disposed of, or otherwise managed;

b. pose a present or potential hazard to the environment when improperly treated, stored, transported, disposed of, or otherwise managed;

c. because of their toxicity or concentration within biological chains, present a demonstrated threat to biological life cycles when released into the environment;

d. have an oral LD (rat) toxicity of less than fifty milligrams per kilogram; or have an inhalation LC (rat) toxicity of less than two milligrams per liter; or have a dermal LD (rabbit) toxicity of less than two hundred milligrams per kilogram; or

e. cause or are capable of causing death, serious illness or serious physical injury to any person or persons as a consequence of release into the environment.

17. "Local agency" means any local agency, board, authority, school district, commission or governing body, including any county, city, town, village or other political subdivision of the state.

[9.] 18. "Metered" means the physical measurement of gas by means acceptable to the department.

[10.] 19. "Oil" means crude petroleum oil and all other hydrocarbons, regardless of gravity, that are produced at the wellhead in liquid form by ordinary production methods and that are not the result of condensation of gas.

[11.] 20. "Oil and gas facility" means equipment, improvements, or physical structures, including any oil or gas wells, used or installed at an oil and gas location for the exploration, production, withdrawal, gathering, treatment, or processing of oil or natural gas.

21. "Oil and gas location" means a definable area where an operator has disturbed or intends to disturb the land surface in order to locate an oil and gas facility.

22. "Oil and gas operations" means exploration for oil and gas, including the conduct of seismic operations and the drilling of test bores; the siting, drilling, deepening, recompletion, reworking, or abandonment of an oil and gas well, underground injection well, or gas storage well; production operations related to any such well including the installation of flowlines and gathering systems; the generation, transportation, storage, treatment, or disposal of exploration and production wastes; and any construction, site preparation, or reclamation activities associated with such operations.

23. "Operator" means any person who exercises the right to control the conduct of, or who conducts, oil and gas operations.

24. "Owner" means the person who has the right to drill into and produce from a pool or a salt deposit and to appropriate the oil, gas or salt he produces either for himself or others, or for himself and others.

[12.] 25. "Pit" means any natural or man-made depression in the ground used for the purpose of retaining or storing substances associated with oil and gas operations.

26. "Person" means and includes any natural person, corporation, association, partnership, receiver, trustee, executor, administrator, guardian, fiduciary, or other representative of any kind, and includes any department, agency or instrumentality of the state or any of its governmental subdivisions.

[13.] 27. "Plug and abandon" means the plugging, replugging if necessary, and abandonment of a well bore including the placing of all bridg-

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es, plugs, and fluids therein and the restoration and reclamation of the surface in the immediate vicinity to a reasonable condition consistent with the adjacent terrain.

[14.] 28. "Pool" means an underground reservoir containing a common accumulation of oil or gas or both; each zone of a structure which is completely separated from any other zone in the same structure is a pool.

[15.] 29. "Potential environmental justice area" means a minority or low-income community that may bear a disproportionate share of the negative environmental consequences resulting from industrial, municipal, and commercial operations or the execution of federal, state, local, and tribal programs and policies.

30. "Producer" means the owner of a well or wells capable of producing oil, gas, or salt; or any salt or hydrocarbon mixture.