Update: Delaware Town Board Petition and Resolution

Dear Readers,  Breathing received an email this morning which contends  that  “…some signators  to the Resolution and Petition being circulated in The Town of Delaware believed they were endorsing an ‘anti-drilling’  petition and resolution.”

Neither the petition nor the resolution are anti-drilling.  Rather, the intent of citizens who are circulating them  is to enact whatever protections are possible in the event gas drilling and hydraulic fracturing  occur in the Town of Delaware!

Residents  concerned for the future of The Town of Delaware and the Delaware River Basin are encouraged to attend the Delaware Town Board meeting this Wednesday, April 21, 2010 at 7:00  PM at the Town Hall in Hortonville where the Petition and Resolution will be presented.


Since  March 20, 2010,  when  Breathing posted a re-cap of the Town of Delaware’s  Town Board meeting and  a copy of  the  gas drilling Resolution Supervisor James Scheutzow  had presented to the Town Board,  The New York State  Assembly has begun to deliberate  several legislative initiatives.

  • One of those, NYS Assembly bill 10490, will establish a moratorium on gas drilling in New York State until 120 days after the Environmental Protection Agency releases its study of the gas industry and its  impacts.
  • A second, NYS Assembly Bill  10633,  is a “Home Rule” bill which makes explicit the notion that  local governments  have and will have zoning control over where gas drilling occurs in their jurisdictions no matter what powers of jurisdiction a  State authority may  claim.

In response,  Breathing wrote on April 18th,  “…. I will ask  citizens throughout New York State  to petition  their local governments to adopt resolutions and/or ordinances that:

  • support  A10490’s  requirement that a moratorium be effected in New York State until 120 days after the Environmental Protection Agency submits its report on hydraulic fracturing;  and
  • amend  or enact zoning laws which preserve and protect the local citizenry and their natural resources.

“An example of a zoning ordinance written  in Nockamixon, PA is available here. Although  Pennsylvania and New York State regulations are often baffling  in their differences,   the language of the Ordinance is instructive;  as is a reading of this article and its links which help explain  the legal reasoning that New York  and Pennsylvania  State courts might bring to considerations of local zoning ordinances that regulate drilling. An important legal tenet is that the decision of a  State Supreme Court may be cited as precedent in other states in the absence of  more weighty legal decisions.  That does not  mean the precedent will stick,  but it does mean it will be treated with value  when a different state court weighs similar legal issues.

“Inaction will no longer be an option for local governments in New York.  It  will now be clear that if local governments do not regulate gas drilling enterprises within their jurisdictions, they are choosing to support  the short term pecuniary interests of a few lessors over the long-term and communal interests of  the land, water and people they are obligated to defend and protect.”

Other New York State  legislative  gas drilling initiatives which came to light since the beginning of April are:

  • A10088 which prohibits “on-site storage of flowback water.”   (After toxic hydraulic fracturing fluid is injected into the shale bed,  15-40% of the toxic soup is recovered as “flowback water”  and is frequently stored in open pits at the fracking site.  60-85% of  the injected fluid is left in the shale bed.);
  • A10090 which prohibits the “disposal of drill cuttings at the drilling site.”  (Drill cuttings are the primarily solid pieces generated as the drill bores through the earth.  For those familiar with wood or metal drills,  think of the shavings created as the drill rotates and penetrates a  2 x  4 or metal bar. During hydraulic fracturing, drills bore thousands of feet.  The resultant “cuttings”  are composed of  NORMs (Naturally  Occurring Radioactive Materials) and other toxins which, according to  New York’s Department of Environmental Conservation (DEC) qualifies  them as  “hazardous waste.”  In justifying the  need for A10090,  its sponsors state, “In their hearing testimony, the United States Geological Survey (USGS) indicated that a multiple horizontal well site will generate 100 to 500 times the volume of cuttings generated at a vertical well site. More importantly, the Marcellus formation has been shown to be high in pyrite. Oxidation and leaching of pyretic shale produces Acid Mine Discharge (AMD) which can lead to significant water impairments. Unfortunately, in the Draft Supplemental Generic Environmental Impact Statement (dSGEIS), the Department of Environmental Conservation proposes to prohibit only the on-site disposal of cuttings contaminated with drilling mud.”
  • A10091 which would require “the disclosure of hydraulic fracturing fluids; and, *[prohibit] the use of hydraulic fracturing fluids containing chemicals that pose a risk to human health including, but not limited to, fluids that are persistent, bioaccumulative and toxic (as defined by the EPA) or are known mutagens. Effects of Present Law Which This Bill Would Alter: Amends section 23-0305 (8)(d) of the Environmental Conservation Law.”
  • A10092 which  “Requires an environmental impact statement to be prepared for any natural gas or oil drilling involving the use of hydraulic fracturing fluid.”
  • A08784 which “Requires permit holders to test groundwater prior to and after drilling wells for oil and natural gas.”
  • A9414 which “Establishes the natural gas exploration and extraction liability act of 2010.”  (Of the initiative,  Catskill Citizens for Safe Energy has said, “This bill would not apply to the million and a half acres already leased in New York State and for that reason we think it needs to be amended.”)

On March 21, 2010 and in response to Breathing’s March 20th article about the Town of Delaware Board meeting,   Bruce Ferguson posted a comment which pointed to at least one issue of importance concerning locally-trained and qualified inspectors:    “But the notion that these inspectors should be ‘locally trained and qualified’  doesn’t make any sense at all. Who in the Town of Delaware is in a position to ‘train and qualify’  shale gas well inspectors? All inspectors should be hired and trained by the NYS DEC Division of Mineral Resources. The Department already has the resources and years of experience in this field and there is no need to reinvent the wheel. Also well inspectors should be the best-qualified people the DEC can find, and they should be full-time professionals. The job of regulating gas wells is a huge responsibility and it should NOT be entrusted to amateurs or part-timers.”

Believing questions about the Resolution were warranted, on March 24, 2010,  Breathing created a separate page which encouraged residents to participate in adding to, changing or re-writing  the Resolution.   Included,  were several suggestions for alternate language of which this was one option:  “A moratorium on gas drilling/hydraulic fracturing should be enacted in New York State.”

The email Breathing received this morning expressed  additional concerns which I believe will be of import to those who’ve signed the petition  or who are considering signing it:

  • the resolution asks the state legislature  to compel the DEC to provide mandatory setbacks from homes  We already have mandatory setbacks from homes.   To make sense, the resolution should call for greater setbacks than exist under current law;
  • ‘closed loop drilling’ and ‘no open waste pits’ are listed  as separate items in the resolution. Of course if you have closed loop drilling, then by definition, you don’t have open waste pits.  These items should be combined into one coherent item.

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