The Business Council of New York State opposes S.6891 which requires notification within two hours by any person causing a discharge of substances associated with natural gas production where high-volume hydraulic fracturing is utilized.
The legislation although well intended contains numerous technical flaws that if it became law would result in significant unintended consequences. Additionally, the legislation is duplicative of similar notice requirements. Many of the flaws of this legislation are embedded in the bill's attempt to mirror the notice requirements associated with the Navigation Law Article 12 (the “Oil Spill Law”).
The legislation requires that any person responsible for causing a discharge of any substance used in or associated with natural gas shall notify the Department of Environmental Conservation (DEC) in less than two hours after the discharge. The DEC within forty-eight hours of receipt of notification shall provide notification to the general public.
The legislation was drafted to follow the “Oil Spill Law” which requires notification of the DEC within two hours by persons responsible for the discharge of petroleum.
Any person responsible for causing a discharge shall immediately notify the department pursuant to rules and regulations established by the department, but in no case later than two hours after the discharge.1
The specific notice requirements contained in S.6891 mirrors NAV Law § 175, by amending the Environmental Conservation Law.
Any person responsible for causing a discharge of any substance used in or associated with processes related to the production of natural gas where high-volume hydraulic fracturing is utilized shall immediately notify the department pursuant to rules and regulations established by the department, but in no case later than two hours after the discharge.
There are numerous technical issues associated with this provision.
- Discharge – In the Environmental Conservation Law, notice and prohibitions are for disposal. Discharge is a subset of disposal, because solid waste and liquids can be unlawfully disposed, but only liquids or gases are discharged.
- DE minimums exemption – bill does not provide a threshold for notification of a release. If a spill is less than 5 gallons, is contained, will not reach the State's water or any land; and is cleaned up within 2 hours of discovery, notice provides no value.
- Responsible – the bill requires that any person responsible for causing a discharge but does not define whom would be responsible. This could lead to a broad swath of individuals being required to notice the DEC even though they may have no control over the substance or even knowledge of the spill.
- Knowing – the bill draft does not require that a person know that they intentional or unintentional caused a discharge. A person should be required to know before the notice time period starts.
- Scope – the bill requires notification for the “discharge of any substance used in or associated with processes related to the production of natural gas where high-volume hydraulic fracturing” the bill states the discharge requirement “shall not include fresh water or solid waste.” Solid waste is described as
"Solid waste" means all putrescible and non-putrescible materials or substances discarded or rejected as being spent, useless, worthless or in excess to the owners at the time of such discard or rejection, except including but not limited to garbage, refuse, industrial and commercial waste, sludges from air or water control facilities, rubbish, ashes, contained gaseous material, incinerator residue, demolition and construction debris, discarded automobiles and offal but not including sewage and other highly diluted water carried materials or substances and those in gaseous form."2
The legislation should be amended to apply to the discharge of any liquid substance as the sponsor has excluded all solid waste.
There is no need for this legislation. The bill is currently duplicative of numerous States, local and Federal notice requirements. Spillers are required under state law and under certain local and federal laws to report spills. Some of the various requirements, are summarized below, often overlap; that is, a particular spill might be required to be reported under several laws or regulations and to several authorities.
- Navigation Law Article 12; 17 NYCRR 32.3 and 32.4 require the notification of any petroleum discharge immediately, but in no case later than two hours after discharge.
- ECL §17-1007; 6 NYCRR §613.8 require the all owners, operators of aboveground petroleum and underground storage facilities with a combined storage capacity of over 1,100 gallons must report spill incident within two hours of discovery.
- ECL §17-1743 requires any liquid (petroleum included) that if released would be likely to pollute lands or waters of the state must immediately notify the DEC, if the owner or person in actual or constructive possession or control of more than 1,100 gallons of the liquid.
- 40 CFR §110.10 (Clean Water Act) requires Immediate notification as soon as there is knowledge of an oil discharge that violates water quality standards or causes sheen on navigable waters.
- Chemical Bulk Storage Act 6 NYCRR Parts 595, 596, 597; ECL 40- 0113(d) requires the owner or person in actual or constructive possession or control of the substance, or a person in contractual relationship, who inspects, tests, or repairs for owner of a hazardous substance must provide DEC notice of a release of a reportable quantity.
- Transportation Law 14(f); 17 NYCRR 507.4(b) requires all persons and carriers engaged in the transportation of hazardous materials, must provide immediate notification local fire department or police department or local municipality of incidents in which certain conditions exists at the scene of the incident of a spill of hazardous materials
- US Department of Transportation Regulations 49 CFR 171.15; 17 NYCRR Part 924; 17 NYCRR Part 507 requires each carrier that transports hazardous materials involved in a significant accident must notify the Federal Department of Transportation, DEC, and notify local police or fire department.
In closing, the ECL contains numerous provisions to protect against pollution like the General Prohibition Against Pollution:
“It shall be unlawful for any person, directly or indirectly, to throw, drain, run or otherwise discharge into such waters organic or inorganic matter that shall cause or contribute to a condition in contravention of the standards adopted by the department pursuant to section 17-0301.”3
There is no need for this legislation the State of New York has engaged in one of the nation’s most complex and thorough reviews of one single process; the extraction of a natural resource. The draft regulatory system to address High Volume Hydraulic Fracturing is based on comprehensive investigation and planning for the high and low probability factors associated with natural gas drilling.
The evidence of the benefit of shale gas is undeniable. University of Michigan Professor Mark J. Perry using data from the EIA, for the years 2008 and 2011, Perry finds the following changes in how much less Americans are now spending natural gas in various sectors.
Looking at historical data, he then makes the following conclusions: For every $1 reduction in the price of natural gas:
- Residential consumers save $5 billion annually
- Commercial consumers save $3 billion annually
- Industrial consumers save $7 billion annually
- Electric power companies save almost $8 billion annually
Total savings of about $23 billion annually.4