Friday, April 24, 2009

Marcellus Shale Letters

I received the following two letters from a friend who has a summer home in New York's Catskill mountains. Her property sits atop The Marcellus Shale, a huge Devonian geologic formation that contains ( potentially ) billions of cubic feet of natural gas. To extract the gas from the rock formation they most be "fraced"(hydraulic fracturing ) using water injected at high pressure. Naturally there are formidable environmental consequences to the use of this process. Local, State and Federal government agencies charged with regulating such activity have been quite hesitant to impose proper controls because of the huge amount of taxes that would flow to their coffers. They use the excuse that extracting this gas will go a long way to making the U.S. energy independent. Aside from the dubious truth of this statement, the price paid would be the moon-scaping of large parts of New York, Pennsylvania and many other states the contain The Marcellus Shale.
Also, many individual property owners are not raising their voices because they have sold leases for their property to be fraced and stand to gain considerable royalties if gas is found. But the problem goes far beyond the immediate areas atop the shale. The vast amounts of water to be used in eastern New York, for example, will overflow into the Delaware River, the major source of water for the Philadelphia metro area and a signficant part of New York City. The chemicals used in the fracing process would then flow in into river, making the water untreatable for potability. Here are the letters, which contain further information about what I've termed, The Quiet Disaster.

Subject: Fw: Regulation gone wrong: the DEC on gas drilling
Date: April 24, 2009 2:26:22 PM EDT

----- Forwarded Message ----
From: grace van hulsteyn
Sent: Friday, April 24, 2009 12:13:51 PM
Subject: Regulation gone wrong: the DEC on gas drilling

Dear Editor: I am a retired attorney with a home in the
Catskills. The letter below was mailed Tuesday to the named officials
of New York's Department of Environmental Conservation, concerning what
I believe to be its corrupted stance on proposed natural gas drilling
in the Marcellus Shale. Below the letter is an earlier letter dated
September 22, 2008, which is referenced therein, and which sets forth
the legal basis of my complaint. If you have questions, please e-mail

Grace van Hulsteyn
364 New Turnpike Road
Cochecton, New York 12726

April 21, 2009
Alexander Grannis, Commissioner
Jack Dahl, Oil & Gas Bureau Chief
NYS Department of Environmental Conservation
625 Broadway
Albany, New York 12233

Dear Messrs. Grannis and Dahl:

I wrote to you last September, reproaching the Department for its
support and encouragement of the Marcellus gas play, contrary to its
statutory mandate and despite the environmental dangers posed by
high-volume hydrofracturing. If you have forgotten my letter, I am
enclosing a copy. I note that the misstated purpose clause in the
NYCRR that I drew to your attention still stands uncorrected after
seven months. .Your sole response to my letter was by way of a flyer
directing my attention to the first draft scope for the supplemental
GEIS that the Governor had ordered. I read it and submitted my
critical comments.

Now that you have heard from many
hundreds of articulate citizens who have voiced their fears for their
families’ health and safety, their land, their livelihoods, their homes
and their communities, – those things it is your statutory mandate to
protect – it is even more troubling that the “final scope” of the
scope adheres to the same “don’t worry, be happy” theme.

would have been heartening to read, in Part 7, that you plan to review
such alternative courses of action as phasing in gas development and
even banning it, had you not in the preceding Parts reiterated your
stubborn conviction that the process is essentially benign and that
your procedures will prevent all harm from occurring. That tells us
you will not be doing any serious rethinking unless and until something
confounding or apocalyptic happens. In the meantime, the new scope
still offers no protection to private water wells, the predominant
drinking water sources in the region, and it perpetuates the wishful
fiction that “the practice ( of casing and cementing) eliminates the
possibility of ...contaminants contacting ground water”. As you
surely know by now, geologists who recently examined several newly
contaminated water wells near a Cabot exploration at Dimock,
Pennsylvania, have had to conclude otherwise. And what happened at
Dimock was already prefigured by numerous contaminations in Colorado
and other states. The Pennsylvania geologists are still scratching
their heads as to how that methane could have migrated. You should be
scratching yours, and returning to the drawing board. Please, let us
not wait for an apocalypse.

At times when the Department has
chosen to, it has acted as a serious, science-minded defender of the
environment. Recently, the subject was the NYRI power line. In
January more than a dozen DEC biologists and other specialists took the
time to appear and give testimony before the Public Service Commission
on the impacts of the proposed line upon surface water, wetlands,
wildlife, and the environmental quality of the region. They expressed
their concerns about forest fragmentation (Mr Rudge), trout stream
disturbance (Mr. Ferracane), erosion and water turbidity (Mr. Eaton),
and more. Power lines are ugly; they hum, they divide the landscape,
they reduce property values, they may have health impacts. Next to
the gas play, however, NYRI is an environmental piker. Its power line
would not foul the air, divert precious water supplies, or crisscross
the landscape with truck trails and pipelines. It would not create toxic waste, or contaminatewells (or soil or surface water), or bang the eardrum 24/7. Now that
we are faced with these far greater environmental challenges, we’re
being told that we, the water, and the forests will be fine and that
micro-management by the Department will protect us.

positions on NYRI and the gas play are irreconcilable. If a power line
will fragment the forests and threaten wildlife habitat, why won’t
active 2- to 10-acre wellpads do so, especially at an allowable density
of 16 per square mile? If power lines will endanger trout streams,
won’t humongous water draws do so? And migrating methane? And toxic
wastes which, under current federal and New York law, are exempt from
treatment as hazardous wastes? What is to be gained by protecting the
environment from one kind of developer like NYRI and then delivering
it into the hands of another, like Cabot? For that matter, what is
the point of SEQRA and of environmental review powers at any
governmental level if environments that have been saved by them may
now be trampled by Big Gas?

The ECL is not to blame
for this disconnect, as the legislature made abundantly clear when it
amended the Declaration of Policy for oil and gas in 1987. Nothing in
the law contemplates that standards of environmental protection which
the Department knows to be appropriate may be downgraded on the basis
of a cost-benefit analysis or a national energy shortage. Those
concerns are appropriate to the State Treasury and the Energy
Department, but they are not the bodies charged with the management of
the gas play. You are. Because the Department is the lead agency in
the permitting process, it is obligated under the law to adopt the same
defensive posture in the gas play that it has shown in other
situations, and in due proportion to the many-faceted risks that it

Properly, permits for high-volume hydraulic
fracturing as now contemplated should be off the table until science
and experience can demonstrate that the process is safe for the
environment and human health. If the Department cannot wait for that,
then it must grasp the reins and direct the development itself. This
will mean adopting the phased-in permitting approach which you have
said you will consider. You will win back some lost respect and be
off to a good start if you limit initial exploration to sites that are
substantially distant from habitations and water sources. If you do
that, then you and the rest of us will be better able to assess the
true scope of the risks in advance of serious impacts. I don’t know
who could legitimately quarrel with that approach.


cc: Congressman Maurice Hinchey
Senator John Bonacic
Senator Charles Schumer
Attorney General Andrew Cuomo
Assemblywoman Aileen Gunther
Councilman James Gennaro


Grace van Hulsteyn
364 New Turnpike Road
Cochecton, New York 12726

September 22, 2008

Alexander Grannis, Commissioner
NYS Department of Environmental Conservation
625 Broadway
Albany, New York 12233
Re: DEC role in gas drilling
Dear Commissioner Grannis:

I am a retired attorney and the owner of an improved five-acre parcel
in Cochecton, New York. Like many people of this Catskill region, I
have grave concerns about the potential impact upon life and health
posed by the advent of natural gas drilling. Like them, I have heard
and seen many consistent reports from areas near drilling sites in the
West where the same state-of-the-art fracture techniques expected to be
used here, inclusive of noxious chemical agents, have been used. The
reports detail the despoliation of the landscape, toxicity in the
water, foul air, an uncommonly high incidence of illness and damage to
bodily organs, and round-the-clock clangor and tumult. We demand more
than lip-service assurances that the same will not happen here, and the
DEC is apparently the sole body to which we can turn.

distresses me most is the position the DEC has openly taken on the gas
issue. Notwithstanding the careful language on its website, Director
Brad Field has plainly stated at a number of meetings that the
Department’s mandate under the Environmental Conservation Law (“ECL”)
is maximizing the recovery of gas. That this is genuinely the
Department’s position is borne out by its sponsorship of the 2008
amendment to the ECL which includes gas-friendly provisions directed at
eliminating untappable zones between spacing units, even while they
bring wellheads and wellbores closer to homes outside the spacing units
than was previously permissible. In furtherance of what I submit is
its mistaken mandate to assist development, the DEC apparently stands
ready to begin issuing drilling permits in the coming months, without
having put our concerns to rest. This will be a travesty, as well as a
breach of the public trust, as the DEC is the
trustee of the state’s environment under the ECL and its actual mandate is something completely different.

For whatever reason, the current Code of Rules and Regulations, to
which the Department looks to interpret the ECL for regulatory
purposes, continues to show the Department’s principal oil and gas
objective to be “the fostering, encouragement and promotion of the
development... of oil and gas in such a manner as will prevent waste.”
(6 NYCRR §550.1). This language cannot Alexander Grannis, P. 2

as support for any development-oriented mandate because in 1987 the
legislature deleted it from its source, the first clause of the
Declaration of Policy at Section 23-0301 of the ECL, and substituted
the word “regulate” for “foster, encourage and promote”, See Laws of
1987, chapter 396. In the same chapter it transferred the language
“foster, encourage and promote” to the Energy Law.

It is
important that the mandates of the DEC and the State Energy Department
not be confused. The DEC’s role is to serve as a check on
development. Its powers under the ECL to issue permits, designate
spacing units and oversee the gas extraction process are to be
exercised not to make development efficient but to carry out the
agency’s true mandate, set out in Title 1 of the ECL: “ to conserve,
improve and protect [the State’s] natural resources and environment
and control water, land and air pollution in order to enhance the
health, safety and welfare of the people of the state and their overall
economic and social well being” and the other goals expressed in that

Title 1 applies to each and every Article of the ECL;
hence, the language of §23-0301 setting the policy for oil and gas,
must itself be read in such a manner as to be reconcilable with Title
1. It is thus error to read the second clause of §23-0301 as calling
for any encouragement or enhancement of gas extraction at all, much
less where the rights of the parties that the Department is bound by
the same clause to fully protect are placed at risk. I submit that the
wording “to authorize and provide for the operation and development of
oil and gas properties in such a manner that a greater ultimate
recovery of oil and gas may be had” merely carries forth the concern
about waste that is expressed in the first clause. The word “ultimate”
is key. The definitions of waste set forth in §23-0101.include
improper “locating, spacing, drilling, equipping, operating or
producing” which reduce or tend to reduce the quantity of oil or
gas that is
“ ultimately recoverable”. Gas is wasted where, in the extraction
process, it is allowed to escape into places from which it can never be
harvested. Gas left imprisoned in the shale remains conserved and
ultimately recoverable. That its recovery at a later time might not be
economical is not the statute’s concern, and it is not a proper concern
of the DEC.

The obvious point of the above is that the
DEC should be reordering its priorities. It should be contemplating
this gas rush defensively and with utmost caution, not enabling it at
risk to the environment and the people. This is so not only because
the Department’s current stance contravenes its proper mandate under
the ECL but because the Department is clearly unprepared for an
onslaught of the anticipated magnitude of this one and the potential
harm it poses. Our citizens cannot accept “learn as you go” regulation
where people get sick during the learning process, nor will the
Department be forgiven if the beautiful Catskills are traded off for
the value of the gas underneath them. We are not persuaded that a tiny
force of 19 inspectors statewide will be capable of effectively
monitoring tens of thousands of present and future wells so as to
prevent local disasters and keep our water and air clean.

am urging you on behalf of all the people whose health, safety and
well-being may be in your hands, to hold off on issuance of permits
for any drilling employing the techniques and Alexander Grannis, p. 3

which gave rise to the environmental and health complaints reported in
the West, until such time as the hazards have been scientifically
eliminated and effective enforcement is in place to assure compliance
by the gas companies. Nothing less than that will do.


cc: Senator Charles Schumer
Senator Hillary Clinton
Representative Jerrold Nadler
Representative Maurice Hinchey
Senator John Bonacic
Assemblywoman Aileen Gunther
Jack Dahl , Bureau Chief, Oil & Gas