BILL NUMBER:S447

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  leading 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
exploration,  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  hydrocarbon
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:
New  York State has been generously endowed with water resources which
have contributed and continue to contribute greatly to the position 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. Environmental 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
agreements with landowners within the watershed that  it  can  control
all  human  activities  which  may  have  an  adverse  impact  on  the
microbiological quality 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 drilling 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 $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
neighboring 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  contamination  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 accident "may" happen.

The state has borne great costs in clean-up and plugging operations of
previous  wells  that  were left 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 estimated 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 prioritization of natural resources.

PRIOR LEGISLATIVE HISTORY:

2011:  S.4834/A.6922 (Colton)

FISCAL IMPLICATIONS:

None.

EFFECTIVE DATE:

This act shall take effect immediately.