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

Albany, NY 12233-6510

Dear Commissioner Martens, Please accept the following comments regarding the draft regulations on High-Volume Hydraulic Fracturing. For the record, I must first state that I object to the process by which these regulations have been released before the revised SGEIS is finalized. The DEC has also placed undue burden on citizens, organizations, and municipalities to prepare comments with a minimal 30 days over the holidays, thereby squelching meaningful public participation. Due to the inherent risks to health, the environment, economies, and communities, hydrofracking should not be permitted in New York anytime in the foreseeable future. Notwithstanding this, I submit the following relating specifically to the over-reliance on ambiguous "permit conditions". Rather than promulgating a robust set of regulations structured to avoid or mitigate the adverse impacts of fracking, the DEC has taken an approach that essentially perpetuates its current hands-off method of regulating the gas industry. The draft regulations focus almost exclusively on operational aspects of the drilling or fracking process, ignoring the broad set of direct and cumulative impacts on the surrounding environment, people, and communities. Although the 2011 revised draft SGEIS discusses some of these concerns, it inappropriately proposes to handle the vast majority as "permit conditions", resulting in regulations that are woefully incomplete. The New York Chapter of The Nature Conservancy discussed this systemic problem in its comments on the 2011 rdSEIS, stating: "Much of the proposed regulatory framework still falls within the realm of permits rather than regulations. This leaves the industry uncertain about the agencies' expectations and the public uneasy about the adequacy of protection for resources that may be at risk. Recommendations and proposals in the RDSGEIS may not be implemented, as many of the proposed mitigations are not codified in regulation and remain at the discretion on the agencies. The long term use of permit conditions in place of regulations provides significantly weaker regulatory and public oversight, as permits are by their nature handled on a discretionary, individualized basis and are not subject to public review. This lack of clarity and transparency, coupled with the probability of limited resources for enforcement and monitory, does not add up to a sufficient oversight and management framework." (Page 3, Comments on RDSGEIS (letter to Eugene Leff, NYSDEC); The Nature Conservancy; January 4, 2012) An appropriate response to this would have been for DEC to produce regulations that contain specific requirements relating to issues previously proposed as permit conditions, such as well-pad activities affecting wildlife, noise and lighting, avoidance of fragmentation caused by well pads and infrastructure, among others. However DEC appears to have done the exact opposite, not only failing to add substance to the draft regulations, but largely failing to even identify the need to follow Best Management Practices (BMPs). The only two instances where BMPs are mentioned in the draft regulations are for the control of invasive plants (560.3(a)(16)) and restoration of native plants during site reclamation (560.3(a)(17)), and neither of these references cite an actual document or enumerate specific BMPs to follow. Regarding the reduction of impact on terrestrial wildlife and habitat, well-site monitoring measures, and a Greenhouse Gas

Mitigation Plan, the draft regulations are completely silent. This creates tremendous uncertainty with respect to what permit conditions can or would be enforced by DEC. DEC should understand that these deficiencies will not be solved by simply adding vague provisions into the regulations for the applicant to prepare their own BMPs regarding the above. To fulfill its statutory purpose as an agency protective of the New York's environment, DEC should develop meaningful regulations to address the following: Sections 560.3(a)(16) and 560.3(a)(17) refer to BMPs that the operator should submit as part of the application process for invasive plants and native plant restoration; however no objective standard has been provided for what these must include. Sections 560.3(a)(16) and 560.3(1)17) of the draft regulations should be revised to codify specific requirements that must be followed or reference a published set of approved BMPs. (These should reflect protocols described by TNC in its January 4, 2012 comments on the rdSEIS.) Any proposed use of alternative BMPs should be accompanied by a written justification within the application and require approval by DEC. The 2011 rdSGEIS (Section 7.4.1.1) discusses requirements that could be implemented as "permit conditions" at well sites; however these are neither sufficient, nor are they mentioned in the draft regulations (even by reference). The draft regulations should be revised to codify specific well site requirements that must be followed. In addition to topics identified as potential "permit conditions" in Section 7.4.1.1 of the 2011 rdSGEIS, these should include specific measures to avoid the siting of well pads in forests, limiting the total amount of disturbed area (including for infrastructure), requiring the use of existing utility corridors, and limiting noise and light impacts. In addition, BMPs should be developed for specific species and groups of species, and an expanded set of BMPs implemented for site reclamation (for example like those developed by the Appalachian Regional Reforestation Initiative). The 2011 rdSGEIS (Section 7.4.1.3) discusses monitoring measures that could be required as "permit conditions" in a subset of forest focus areas and grassland focus areas, concluding that with such measures in place "the significant adverse impacts on habitat from high-volume hydraulic fracturing would be partially mitigated". This is inaccurate since monitoring is only the documentation of changes, and thus not mitigation per se. Furthermore, DEC specifies no criteria for what is to be monitored (except for inappropriately limiting the applicant's review to bird impacts) and defers to the applicant to suggest any additional mitigation. Since no criteria for monitoring or measuring wildlife or habitat impacts that would trigger action by DEC were identified in the rdSGEIS or the proposed Environmental Assessment Form (EAF), these measures are of little value. Furthermore, no mention of them is even made in the draft regulations, suggesting that DEC may have decided to ignore such issues altogether. The draft regulations should be revised to identify specific avoidance measures intended to reduce impact within forests and other ecologically sensitive areas. Monitoring requirements should be spelled out in the regulations or an appropriate document referenced and thresholds of acceptable impact defined. For impacts that exceed acceptable parameters, the regulations should specify true mitigation requirements (for example onsite/offsite mitigation, fee-simple dedication of land, conservation easements, or contribution to a habitat acquisition fund). The 2011 rdSGEIS (Section 7.6.8) proposes to require that an operator develop a Greenhouse Gas Emissions Impacts Mitigation Plan; however this is absent from the

draft regulations. The draft regulations should be revised to codify minimum requirements of this plan, including compliance with EPA Natural Gas Star BMPs. The 2011 rdSGEIS (Section 7.7.2) states that DEC proposes to require, as permit conditions or regulations, radiation surveys at specific time intervals on all accessible well piping, tanks, or other equipment that could contain NORM buildup. The draft regulation, however, simply state in Section 560.7(k) that radiation surveys of the well head, piping, and tanks must be performed using instrumentation and a schedule prescribed by the DEC. Parts of the Marcellus Shale are known to be highly radioactive. Radiation surveys are an important activity for all gas wells, so the draft regulations should be revised to include actual requirements for monitoring, reporting and corrective action. The 2011 rdSGEIS (Section 7.1.2) describe BMPs associated with SPDES stormwater permitting. The measures should be codified in the draft regulations or SPDES permitting program.

Yours truly,