Natural gas industry representatives were granted early access to New York’s preliminary unconventional drilling regulations up to six weeks before the rules were made public, the public health advocate Environmental Working Group (EWG) claimed on Thursday, citing documents obtained under a Freedom of Information (FOI) request.
The New York Department of Environmental Conservation (DEC) in early September published a revised supplemental environmental impact statement on horizontal drilling and high-volume hydraulic fracturing (fracking), followed by corresponding draft rules later that month (see Shale Daily, Dec. 1, 2011; Sept. 29, 2011; Sept. 8, 2011). Now Gov. Andrew Cuomo reportedly is working on a plan to allow unconventional drilling in some counties along the Pennsylvania border, but only in localities that support fracking (see Shale Daily, June 14).
According to a report by EWG, several industry representatives used “exclusive access” to the proposed rules to lobby for weaker drilling rules, including a Chesapeake Energy Corp. representative, who apparently attempted to weaken the wastewater discharge proposals within the preliminary drilling rules.
“This is like giving the drilling industry three laps around the track while everyone else was left waiting on the starting block,” said EWG Assistant General Counsel Thomas Cluderay. “The public needs to know whether New York regulators compromised the integrity of the state’s drilling plan months ago, despite promises of keeping the process fair and transparent.”
However, a DEC spokeswoman said Thursday the email exchanges reflected the department’s routine process to gather stakeholder feedback. Under New York’s Administrative Procedures Act, “state agencies are required to assess the impacts of the regulatory action on the regulated entity,” she said. “Agencies cannot gather this data without holding meetings and engaging in other forms of communication with the regulated community prior to proposing the regulation.”
A series of emails by DEC officials between August and September 2011 were obtained by EWG through the state FOI request, in which state officials apparently “shared key details of proposed natural gas drilling regulations exclusively with drilling industry representatives before they were made available to the general public. The DEC did not share the documents with any other stakeholders, including environmental representatives on an advisory panel that DEC Commissioner Joe Martens appointed last July to study high-volume hydraulic fracturing. This exclusive access gave the drilling industry an advance opportunity to lobby administration officials to weaken the regulations.”
The EWG cited one instance in which Albany, NY, attorney Thomas West, who has represented some drillers, “wrote regulators to make ‘one last pitch’ before the wording of a draft storm water permit was released to the public. West proposed to ‘reduce or eliminate radionuclide testing’ of fluids that storms could wash from drilling sites into surrounding waters and soil.”
The EWG claimed that industry representatives “were the only stakeholders to see the draft regulatory language” before the rules were published in September and it could not determine whether West’s “pitch” led the DEC “to soften its approach to the issue of radioactive pollution. The Sept. 28 version of the storm water permit requires testing for radioactive contaminants but, importantly, does not propose penalties for drilling companies whose runoff shows radioactivity at a level of concern for public health. In fact, the permit does not even specify what level the DEC considers unsafe.”
Another email purportedly by West urged state regulators to avoid “duplication” and said, “since the unnecessary duplication of efforts by state agencies is a theme of the Cuomo administration, you should expect comments from our group to that effect as part of our official comments,” EWG said. “Glaring holes in DEC documents disclosed to EWG in response to its Freedom of Information law requests raise questions about whether the drilling industry received even more exclusive chances to influence New York’s drilling plan.”
According to the EWG, the emails show that the energy industry “assumed it would receive more information from the DEC.”
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