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 a filtration avoidance criteria waiver.
NEW YORK STATE ASSEMBLY MEMORANDUM IN SUPPORT OF LEGISLATION submitted in accordance with Assembly Rule III, Sec 1(f)
BILL NUMBER: A2591
SPONSOR: Colton (MS) TITLE OF BILL:
An act to amend the environmental conservation law and the public health
law, in relation to assigning liability to a producer for actions lead-
ing to a public water system's failure to meet filtration avoidance
criteria
PURPOSE OR GENERAL IDEA OF BILL:
To assign liability to a producer for actions taken during the explora-
tion, drilling or development of wells that produce oil, gas, salt or
hydrocarbon mixture, which result in an adverse impact on a public water
system.
SUMMARY OF SPECIFIC PROVISIONS:
Section 1. The environmental conservation law is amended by adding a new
section 23-0315. 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 hydro-
carbon mixture, that directly result in a public water system failing to
meet all of the existing filtration avoidance criteria established by 40
C.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
1110. 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:
s.k 1 New York State has been generously endowed with water resources
which have contributed and continue to contribute greatly to the posi-
tion 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. Environ-
mental 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 agree-
ments with landowners within the watershed that it can control all human
activities which may have an adverse impact on the microbiological qual-
ity 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 drill-
ing in the Delaware/Catskill watershed and how it may affect New York
City being able to retain the Filtration Avoidance Determination (PAD).
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 S
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 neighbor-
ing 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 contam-
ination 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 acci-
dent "may" happen.
The state has borne great costs in clean-up and plugging operations of
previous wells that were deft 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 esti-
mated 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 priori-
tization of natural resources.
PRIOR LEGISLATIVE HISTORY:
2013-14: A.1529/EnCon; S.447/EnCon
2011-12: A.6922/Encon; S.4843/Encon
FISCAL IMPLICATIONS:
None.
EFFECTIVE DATE:
This act shall take effect immediately.
