Cochecton Zoning to Allow Widespread Drilling; Mortgage Troubles on Leased Properties


(For more on this post, please see Brenda Seldin’s description of her conversation with Cochecton Supervisor Gary Maas and Jennifer Canfield’s list of  banks pulling back from providing mortgages on leased properties.)

Breathing Is Political received this notice in this morning’s email:

“The Town of Cochecton is proposing to change their zoning code to allow for the “Exploration and recovery of natural gas shall also be considered an extraction operation.” This will be allowed throughout most of the town (approximately 90%) in the RU and AC zones. This will include almost the entire Delaware River Valley. To my knowledge it has not had the required SEQR review, comments by the County Planning Department, etc. I received a copy to review as a member of the planning board.

I urge all of you who might be concerned to start getting involved and informed now. It is easier to make an impact at the beginning before momentum is gained in support. Please pass the information along to all others you know who may be concerned.

Under the current zoning only surface mining is permitted.”

Although Breathing has not found a website for the Town of Cochecton,  here is the  contact information:

TOWN OF COCHECTON
Town Board Meetings:
2nd Wednesday, 7:00 P.M.
Town Hall: (845) 932-8360
FAX: (845) 932-7938

Interested parties may contact the Town Hall to receive zoning maps.  Breathing is headed to the County Planning Office as soon as it drinks its coffee.

All residents should be concerned about this information received from a local realtor:

“I had a customer inform me two days ago that the home equity loan they were obtaining in order to purchase a small investment piece near them was turned down by GMAC because their home property was under a gas lease. I dug a little further and found through mortgage brokers that that they are encountering the same reluctance on the part of some local and some bigger banks to lend on leased properties. I hope those who have signed leases have figured this into the equation. A similar example would be as in the case of Flood Zone properties for whom the Flood Insurance program was withdrawn, banks would also not lend on those. In the real estate world, things like this are a huge consideration in factoring property values. Just thought some people might not be aware of this trend by lenders.”

And, as  has been reported by Breathing previously,  the Federal Housing Administration issued this warning:

Operating and abandoned oil and gas wells pose potential hazards to housing, including potential fire, explosion, spray and other pollution. Therefore, no dwelling may be located closer than 300 feet from an active or planned drilling site or 75 feet from an operating well; this applies to the site boundary, not to the actual well location.

Eyewitness Account: Wayne County Seismic Testing


Dear Readers:   Not everyone  has  signed up  to be notified (comment RSS)  when new comments are posted  on these pages so I am re-publishing the below-comment in the main body of Breathing Is Political (below Breathing’s Recommendations).

Breathing’s Recommendations to Landowners  (Leased or not) and Renters

  • Read  “Update :  Seismic Testing” which I published yesterday.  It speaks to legal issues and  potential homeowner protections.
  • Visit the Chenango Farm Bureau site which I’ve linked to in the article.  Fill out the document.  Hand a copy to the seismic workers.  Send a copy to Dawson now and after the testing occurs.  Maintain a copy for your records.
  • Before the trucks arrive,  take pictures of every conceivable part of your property. When houses shake, the damage  may not be apparent until much later.
  • Arrange with a friend or neighbor to be on-call to be with you when the trucks arrive or IF  you get word they’re heading toward your road.
  • Create visible  8.5 X 11  posters and post your land (if you’re so inclined):  “SEISMIC  TESTING  PROHIBITED ON THIS PROPERTY!”  Make sure you sign the  notice  and that it includes your address;   just like any other  NO TRESPASSING SIGN,  it must be posted at multiple points on your property.  (See “Trespassing Rules”  at the NYS DEC,  just for guidance.)
  • If you have a head’s up the trucks are coming toward your road, email me or   a friend or neighbor to be with you.
  • Have a witness and preferably,   video-audio record of   what the seismic trucks and crew do and your interactions.  And if you  ask the trucks to leave because you see them or their workers  on your property  and you have NOT signed a lease which gives them implied or explicit access to your property,  nothing is lost by calling the police. Especially,  nothing is lost if they ignore your request to  vacate your property.
  • If you have pets,  farm animals and/or critters with whom you share the woods and river DOCUMENT their responses the day of the testing and over the next few weeks. Maintain all veterinary records that may result!
  • And continue to report your experiences here or by emailing me at : ljbucar@earthlink.net.
  • And do not hesitate to document your experiences  with the Pennsylvania Departments of Transportation  and Environmental Protection and  THE NATIONAL PARK SERVICE!

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EYEWITNESS REPORT OF SEISMIC TESTING IN WAYNE COUNTY, PA

On Saturday the “thumper” trucks performed vibroseis directly in front of my home which is less than fifty feet from the road.  I was aware that this testing would be happening, but not when.  While the sight of 4 large military looking trucks coming down my little back road was unnerving, it didn’t compare with what was to follow.

I was taking photos of the trucks approaching and then to my dismay stopping directly in front of my home.  At this point I observed a man suddenly run from the road on to my property towards the back of my house.  This truly unnerved me. He had a small case and a probe of some sort which he inserted in to the earth.  Choosing to confront him, I got his attention and motioned for him to come nearer the house so I could speak to him.  The noise from the trucks made speech 15 feet apart impossible.  I asked him what he was doing on my property.  He informed me that he did not work for the people (Dawson) who were doing the vibroseis, but worked for a company out of Michigan.  Since I saw the company that placed all the orange flags, I knew that they were from Michigan from their license plates.  I accepted that he worked for them and not Dawson.  He explained that it was his job to test the vibration levels being produced to make sure they were not high enough to damage my home.  He further explained that while they try not to test directly in front of anyone’s house, sometimes it is necessary. I guess I was one of the lucky ones.  I asked him why he hadn’t asked permission to come on to my property, and he said that when he asked, people got upset.  Imagine that!  I suppose I could/should report him, but since his purpose seemed to be to my benefit I chose not to.  He then walked back towards the road while I walked through my house to the front.  What did I see there but my new acquaintance in my front yard measuring vibrations again, and then ultimately giving the trucks the okay to start the vibrations.  They were quite intense.  As I leaned against my front porch columh taking pictures of the situation I could feel my entire home shaking.  I don’t want to overdramatize this situation.  The pictures were not falling off the walls and furniture wasn’t toppling over, but it was a very deep strong vibration that could be felt deep in your chest in more ways than one. I don’t know what would have happened had I denied this man access to my property and the test that was supposed to make sure my home wasn’t damaged.  Would they have skipped my house without that data and moved on, or would they have just gone ahead and done the vibroseis. I do not take the violation of my private property lightly and would urge others to seek the legality of these actions, especially when undertaken without permission.  Should it be of interest to anyone I have photographs of the activity.

Thank you.

Update: Seismic Thumping in Wayne County, PA


Confusion abounds concerning the seismic thumping planned for our neighbors in Damascus (Wayne County)  Pennsylvania.

First,  as to whether or not the National Environmental Planning Act — used in the State of Wyoming  to trigger an investigation of seismic thumping — would apply to the activity in our Delaware River Corridor, apparently, the answer is,  no.  In a phone conversation with Charles Barsz,  the National Park Service’s (NPS)  Philadelphia Division Chief  of the Wild & Scenic River,  Breathing was informed that, “Seismic thumping apparently falls in the cracks.  Because the NPS does not own the land,  the agency cannot trigger an investigation of seismic thumping or its impact on the River or its fauna.”  Mr. Barsz has promised to look further into concerns raised by seismic thumping on what are frequently single-lane, dirt roads  with little or no shoulder, within a couple hundred feet of the river and  often only yards from residences.  Of particular concern is the often steep descent from the roadside to the River or its tributary creeks below.

Second, although seismic testing acquires valuable geological information by sending sonic shock waves under privately-held lands,  property owners are not reimbursed for the data collected.  In other words,  the information obtained by seismic tests about your private land is sold to gas extraction companies and the information is not available to you as the landholder. You won’t know if the data reveals your property as a good target for drilling but the gas extraction company will.  That disparity in knowledge will  place the landholder at a negotiating disadvantage. (This will be of special concern in New York where landholders can be forced into “compulsory integration.”)

In fact, one local landholder wrote,  “Executive Director Henderson of the PA Senate Environmental Resources and Energy Committee and I are engaged in a dialogue regarding seismic testing.  He agrees that no testing or flags should be allowed on property against that owner’s wishes, and suggests anyone who’s been trespassed [against]  should contact their local or state police.  Perhaps anyone upset about the testing should follow his advice.” (Bold added for emphasis.)

The Chenango County Farm Bureau offers two documents of especial interest to property owners:   “Stop Roadway Seismic Testing Without Your Permission” (which the organization says has been used “with some success”)  and a “Memorandum on Seismic Testing” which addresses the issue of trespass by  companies which, essentially,  “steal”  your substrata information.

And lastly,  seismic testing comes in a lot of different flavors but there are two types usually done on roadways.  “Vibroseis ” is done with seismic vibrators which “shake” the ground over a period of time.  “Thumping” is a higher impact testing done by dropping a heavy weight (usually multiple times).  (A video and a more detailed explanation of the two types can be Found at Google Videos:   Vibrating the Earth – Vibroseis)

One particularly interesting sidelight of seismic testing is that it reveals faults in the geologic layers of the earth which are of particular interest to gas extraction companies seeking areas where toxic by-products of fracking can be injected.  Such injections would  save companies the expense of trucking  the toxic fluids to treatment facilities.   Underground injections of toxic flow-back materials are discussed more-fully here.  The contention  that such injections are environmentally-sound and safe  has been hotly contested by those  who cite to upward migrations of the toxins which may contaminate our vital aquifers and groundwater.

Ms. Karen Dussinger,  Press Officer in District 4 for the Pennsylvania Department of Transportation (PennDOT)  told a Breathing source that  PennDOT permitted Dawson Geophysical Company to do the seismic testing in accordance with PA Code Title 67, Section 459.9(f).  In part, the statute reads,

(f) Seismograph—vibroseis method. Seismograph—vibroseis method shall comply with the following:

(1) Seismograph operations by other than the vibroseis method will not be permitted. (Bold added for emphasis.)

(2) A permit will not be issued to authorize seismograph operations within limited access highway right-of-way.

(3) Wherever possible, seismograph operations shall be performed entirely off the pavement and shoulder to lessen interference to traffic.

Breathing is  not certain whether  the two technologies — vibroseis and thumping  — are used in tandem but it seems clear from the statute that PennDOT is not authorized to permit  Dawson or any other company to use high-impact thumping on Pennsylvania’s roadways.

Breathing has asked various agency representatives, biologists and geologists to help locate more definitive studies of the impact of vibroseis on geologic substrata,  residential foundations and fauna such as bats, fish and snakes.  When, and if, that information is made available,  it will be published here.

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.

Delaware Town Board and Local NY Zoning Can Regulate Gas Drilling


I usually try hard not to say,  “I told you so.”  More,  I usually try not to end an opinion with something that sounds like,  “Nanny, nanny, poo, poo.”

First, it’s unseemly and impolite.

Second, it’s obnoxious.

Third,  it doesn’t make friends or influence people.

With that in mind,  “I told you so!”

Last month,  I suggested  the Delaware Town Board  could use its zoning prerogatives to protect the health, wealth, welfare  and happiness of   The Town of Delaware by creating  protected  areas within its jurisdiction where gas drilling would be banned.  The suggestion was met with a  scoffing  opinion that  I just didn’t understand  New York’s  Municipal Home Rule statute.

The next afternoon,  at  the monthly meeting of the Sullivan County Legislature,  I and others  repeated the  silly notion of local zoning controls being used to regulate the siting of gas wells.  The Board was voting on a resolution to ban drilling from County-owned property.  Some citizen speakers wanted the County to expand the  ban to areas of the  privately-held sector.  Once again,  the idea was  met with  head-shaking and  a some impatience by certain legislators.

Usually,  when I know I’m right and others just don’t get it,   my first instinct is to shake them by their cheeks until their brains rattle with sense.  After 40+ years  of being an active citizen,  I’ve learned that that is an ineffective tactic.

So here’s an idea:   this Wednesday,  April 21st at 7:00 PM in the  Delaware Town Hall in Hortonville,  the Town of Delaware will hold  its monthly Board meeting.  After reading  Breathing’s re-cap of last month’s meeting,  some residents  organized support for the Town Resolution Supervisor James Scheutzow  had presented at the March  Town Board about gas drilling.  They even put a petition in support of the resolution at The Callicoon Wine Merchant and Windy Hill cheese shop(s).  (The resolution can be read in its entirety here.)

The petition is still there and has garnered an impressive number of signatures.  (If you live in the Town of Delaware,  you’re eligible to sign it and besides,  the two shops are a pleasure to visit.)

The thing is,  since those meetings last month,  the New York State Assembly has begun considering several  bills our New York State counties, towns and villages must recognize when dealing with the issue of drilling.

First, on April 2, 2010, NYS Assembly bill 10490 was referred to the New York Assembly’s  Environmental Conservation Committee (EnCon).  The Bill  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.

To my way of thinking,  all  citizen-generated resolutions about gas drilling must  incorporate this commonsensical piece of proposed legislation.

Second — and my personal favorite  — on April, 13, 2010,  NYS Assembly Bill  10633 was referred to the Assembly’s EnCon Committee.  This  “home rule” bill 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. (Obviously, local zoning ordinances cannot discriminate,  but if a  local government has a   bona fide rationale for instituting  protections and does not over-reach or regulate too restrictively, their actions are likely to  be upheld in New York State courts.)

In a bold effort to support local sustainability, to protect local resources and to prevent harm to our residents,  members of the State Assembly are making it clear that localities have the right and duty to defend and protect their local resources and residents.

No longer will  New York State villages, towns  and counties with zoning boards have the right or leeway to blame the State when gas wells or other potentially injurious enterprises  sprout up in their school yards or rural residential areas as is threatened, for example, across the River in Damascus, Pennsylvania.

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.

So, instead of ending this  with “I told you so,”  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.

NY Gas Lobby vs. NY Assembly, Moratorium and Home Rule


On April 2, 2010,  NYS Assembly bill 10490 was referred to the New York Assembly’s  Environmental Conservation Committee (EnCon).  The Bill  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.

On April, 13, 2010,  NYS Assembly Bill  10633 was referred to the Assembly’s EnCon Committee.  The  “home rule” bill will give local governments  zoning control over where gas drilling can occur in their jurisdictions.

Two days later, April 15th,  was a busy, busy day in New York gas news:

  • New York’s gas extraction lobby, the  Independent Oil & Gas Association (IOGA-NY)  proposed to  rescue “New York State’s environmental and parks budgets”  by  drilling in New York’s protected park lands.  IOGA-NY’s  press release  asserted, “New York State could raise more than $200 million in fiscal year 2010-11…” and urged, “expediting the auction of state land leases and the application approval process.”  (According to Governor Patterson’s Budget Briefing Book, the current budget deficit  is $3.2 billion and is expected to reach $6.8 billion in 2010-11, $14.3 billion in 2011-12 and by 2013,  $20.7 billion.)
  • At the same conference, “DEC Director of Mineral Resources, Bradley Field…[said] the entire process, including the issuance of [gas drilling] permits, would be finished in 2010.”

To ensure that  New York  taxpayers get a return on  the billions of gallons of free water the gas companies use in gas extraction and to offset the possible contamination of  State parks  “which welcome “more than 55 million visitors each year,” (2009 Annual Report)  Governor Patterson has proposed a 3% severance tax on some gas extraction companies. (Budget Briefing Book, pp 98-99). Unfortunately, the tax won’t be levied  until 2011-12 and will garner only  $1 million in revenues.

(By comparison,  Texas’  2007 severance tax on the  gas industry was  7.5% and produced  $2.76 billion in revenues.   Mayor Tillman of DISH, TX assured an audience in Callicoon, NY,

“We don’t have a state income tax in Texas.  We have the severance tax on the gas companies.  It’s good for a lot of reasons.   The tax is paid by volume on the gas so if you’re leasing,  you’ve got a measurement of how much your wells are producing.  It’ll tell you how much gas is coming out of the ground and how much money you should be getting.”   (A previous Breathing article,  referenced a court judgment that found   Chesapeake had defrauded royalty owners in Texas out of $134 million in payments by under-reporting the amount of  gas Chesapeake extracted from its lessor’s wells.) Tillman continued to tout the benefits of enacting a severance tax,  “Do you have enough inspectors in  New York?   A severance tax could pay for that, too.”  Then, looking out over the audience,  he asked,  “How are the roads holding out around here?”  When the audience groaned and laughed, he said,  “A severance tax can fix that.”

Although IOGA-NY’s April 15th  press release expressed concern for  the terrible state of  New York’s finances,  the gas lobby  continues  to oppose a severance tax  while urging lawmakers to entrust  the State’s public lands  to them for $200 million.

Despite the industry’s offer,  Texas’ annual severance tax of  7.5% sounds like a better deal than the 3% proposed by Governor Patterson or our $200 million share in their multi-billion dollar profits; especially since  the DEC  (dSGEIS, Chapter 9, page 6) estimates, “… 2,000 wells per year ± 25% in the New York Marcellus play.”

Two thousand wells per year?  Only 29 new DEC staff  (Budget Briefing Book, page 53) to oversee billions of gallons of  toxic fracking fluids and  radioactive waters produced by the fracking process?   Billions of dollars of gas company  profits on the backs of New York State’s  taxpayers and our  parks  and  water resources?  Billions of gallons of our water used in  fracking operations for free?   And the gas lobby believes  we can be bought off with a $200 million mosquito bite out of our multi-billion dollar deficit?

Email, call or write your Assembly and  Senate members  and tell them to support a Moratorium and local control over the siting of gas wells in our communities. (Assembly member Aileen Gunther has already signed on to both bills.)  Call your friends and neighbors.  Email them this article so they know what’s at stake. And then, write  letters to the editors of your local newspapers.  Spread the word any way you can.  The gas lobby has the money.  We have the votes.

Get busy and  we can do the other thing Mayor Tillman suggested,  “Get it right.  Learn from the mistakes made in DISH, TX.”

DISH, TX…where new studies have revealed that not only were the air and water  contaminated by the gas industry, but so were  the people.

And look again at the April timeline  above.  The gas lobby has drawn a bead on elected representatives who are working for community rights, Home Rule and studies of  hydraulic fracturing. Is the lobby worried New York residents and taxpayers will vote for the health and welfare of New York and against gas company profits and a few pieces of silver?

Seismic Thumpers : Damascus, PA


Seismic thumper trucks” are headed for a  Town of  Damascus roadway near you. The trucks will pound the ground with immense weights and then “listen” for feedback which helps them read the structure of the Marcellus Shale and presumably, predict the availability and accessibility of natural gas in the underground formations.   Seismic thumpers have  already toured  other US States including  Utah,  New Mexico, Texas  and Wyoming.  (For an explanation of various kinds of seismic thumping techniques, please read here and for a picture of a “thumper” truck,  click here.)

In Wyoming in 2006,  an “administrative law court within the U.S. Department of the Interior”  issued a temporary stay which halted the passage of seismic thumper trucks through an environmentally-sensitive and federally-protected region.  According to the Biodiversity Conservation Alliance,  “The [environmental] groups had challenged violations of  The National Environmental Policy Act (NEPA) [because The Bureau of Land Management (BLM) had failed] to take a hard look at impacts to fossil resources and sensitive wildlife, that the agency did not conduct the required study of cumulative impacts to wildlife that use lands impacted by the project, and ignored their responsibility to consider lower-impact alternatives to thumper trucks that would use smaller equipment and keep off-road vehicle traffic out of proposed wilderness areas.”  Breathing has learned that the parties involved in the case reached a settlement which, in part, protected fossil formations by having experts located on site during “thumping” explorations and by ensuring operators avoided and/or preserved sensitive fossil resources.

Along highways, NEPA allows for certain “categorical exclusions” which do not trigger an automatic review of their activities because, based on experience,  they “do not involve significant environmental impacts.”  The list  of excluded activities does not include  seismic thumping.

In a phone conversation,  Erik Molvar, Executive Director and Wildlife Biologist with  the Biodiversity Conservation Alliance in Wyoming told Breathing that the National Environmental Policy Act’s  statutory jurisdiction is often triggered when potentially harmful activities are planned for a federally-protected area.  (The Upper Delaware Scenic and Recreational River is such an area.  Its watershed, according to the National Park Service, “provides water to over 17 million people and supports a world-class trout fishery and bald eagles.”)   Mr. Molvar went on to say that in the case of seismic thumping, if  NEPA’s legislative jurisdiction is  established,  a lengthy process involving  investigations of  seismic thumping’s  direct, indirect and cumulative impacts,  a public comment period and a possible environmental impact statement might be required before it could be permitted.”

At the moment,  orange markers  have cropped up on The River Road in Pennsylvania’s Damascus Township which signal the imminence of  seismic thumping within a few hundred feet of  The Delaware River and in close proximity to residential structures.

Related questions  have been raised in Pennsylvania as to whether or not the Pennsylvania Department of Transportation (PennDOT)  has the legal jurisdiction to issue permits for seismic thumping in rights-of-way  it has obtained from private landholders.  (Although the United States Constitution grants States the right to acquire private lands for public use through Eminent Domain, the extended grant to State transportation departments is generally restricted, as in Pennsylvania, to a  “…’right of passage’ over land on which a public road ultimately will be built or expanded.  PennDOT will execute this right only when it will benefit the public,”  says PennDOT’s website.

PennDOT’s  district engineer

(a) … shall be authorized to permit temporary use by public agencies and charitable organizations of right-of-way not required for free movement of traffic. (Italics added.)

(b) Duration. A permit for temporary use of right-of-way may not exceed 90 days’ duration.

PennDOT has  leeway in managing  its rights of way and can, for instance, permit “encroachments” in areas not used by traffic for items such as  mailboxes.  The Department may also  allow  “occupations”  by  driveways which permit ease of access for residents but even those allowances can be subject to Township review.

And PennDOT may:

…effect the fair and uniform administration of the provisions of section 2002(c) of The Administrative Code of 1929 (71 P. S. § 512(c)), which authorizes the Secretary to lease real property acquired for any State-designated highway or other transportation facility as is not required for the free movement of traffic, including area above, beneath, and outside the traveled way, as well as area required but not yet utilized for construction or reconstruction of a transportation facility.

Obviously,  PennDOT, like other State highway departments, permits  utilities to situate  their poles and other necessary accoutrements in its obtained rights of way for the public good. This use of  highway rights of way by non-transportation utilities is explained  IN THE COMMONWEALTH COURT OF PENNSYLVANIA:  “…the basis for the common law rule was that, although the utility was permitted to use the right-of-way because it served a public interest, the primary purpose of the public easement was the public’s own use; any use by a public utility was subordinate to the interest of the public.”  (Italics added.)

What is unclear is whether or not PennDOT has the  legal authority to grant temporary use of privately-owned rights of way to private for-profit-corporations (like seismic thumping companies)  in furtherance of activities such as hydraulic fracturing (whether or not such activities are   under investigation by the United States Congress) when it is debatable such activities serve the public good.

In Commonwealth of Pennsylvania Department of Transportation v Municipal Authority of the Borough of West View (argued in The Commonwealth Court of Pennsylvania, 2-5-07)  Judge Pellegrini stated,

“When a governmental entity acquires a right-of-way for use as a street
or highway, that governmental entity acquires ownership of that right-of-way in trust
and can allow others to occupy the street or highway only for “public purposes.” (M999DOT) (Italics added.)

In  Shelbourne Square Associates v Board of Supervisors of Township of Exeter, Berks County, PA, (Submitted 3-2-01), The Commonwealth Court of Pennsylvania found, “Thus, the Department’s own regulations recognize that its highway access permits are subject to ordinances enacted by local municipalities which contain more stringent minimum safety requirements.”  (Microsoft Word – 1147CD08.doc)

One local Pennsylvania resident says she was told by a representative of  Houston, Texas’ Newfield Gas Exploration that the company is using  seismic thumping technology similar to sonograms used on unborn babies.  According to the resident,  the representative stated further that the technology is, “Perfectly safe and that there’s been no report of damage.”

However, one suggestion made by an interested home owner is that prior to the advent of seismic thumping,  homeowners near the activity might consider:

“…whether home inspections may be necessary to establish a baseline for future claims of structural damage to your house and any other structures on your land (from barns to walls in the landscape.)  Short of that, photos of any existing cracks (or absence thereof) should be made with related documentation establishing these as  ‘before’ conditions.”

For additional information concerning the recommendation, please see this link to a suit brought by several people in Texas who alleged structural damage was caused to their property by seismic thumping.

Besides  damage to roads and delicate ecosystems and  questions about  PennDOT’s legal jurisdiction to permit seismic thumping in rights of way,  some people have raised the issue of  trespass. They assert that  essentially, thumping companies are  “trespassing” into   private landowners’ substrata and  in the process,  “stealing” compositional  information from those substrata and  providing the resultant data  to extraction companies without compensating landholders from whose property its gathered.   In New York State  which has  “compulsory integration”  or “forced pooling,” such data accumulation would be of particular interest to gas extraction companies  in cases where landholders have refused to sign mineral leases.

Breathing has contacted a Pennsylvania official and experts on Delaware River management for clarification of  NEPA’s possible jurisdiction as discussed in this article.  Unfortunately, representatives of the National Park Service will be unavailable  until tomorrow and as soon as further information is available, it will be posted.

As with most things drilling,   divergent views of risks predominate the discussion while too many questions and too few definitive answers are available to increasingly worried residents.  As one Damascus Township property owner said,  “I just want my elected officials to provide  a  forum where I and other homeowners can get answers about what these trucks do,  how they might impact my  home, my water well —  my land that I love  and have nurtured.  The River is my backyard.  My house is right on the road.  I just don’t know what to think or do.”

Gas Drilling, Conflict of Interests and Lobbying


Since publishing  Breathing’s March 20, 2010 coverage of  the Town of Delaware’s  Board meeting,  I’ve been fielding questions about local public officials’ potential conflicts of interests.  Essentially,  residents on both sides of the River are worried that some local public officials are either blocking or supporting local zoning changes and/or Board resolutions because those officials  have leased,  or are considering leasing,  their own gas mineral rights.

Residents and taxpayers who have raised the issue of conflicts of interest believe they are being  disenfranchised by representatives who are supporting or opposing  public policy for the benefit of themselves and drilling interests rather than in protection of  the public’s health and welfare.

As a result, I’ve asked two attorneys whether or not New York State’s  county, town, zoning and planning board members who have leased or are considering leasing their gas mineral rights should recuse themselves from not only voting on drilling issues but from participating in their Boards’ discussions of  gas drilling  issues.  In response, both attorneys  strongly recommended that  the public should attend those local board meetings and ask each board member, on the record, to clarify the leased  status of their and their family’s  real property holdings.

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In an  April 2, 2008 press release,  the Franklin County, NY District Attorney made an announcement which may apply to our local  public officials who have signed gas leases:

“Over the past three months the Franklin County District Attorney’s Office has been examining allegations of certain improprieties including self-dealing, conflicts of interest and violations of statutes on the part of various local elected officials in Franklin County.

The recently disclosed unethical conduct by our state’s highest elected official has heightened the need for a closer review of all available ethical safeguards in order to reestablish and maintain the Public’s confidence in our elected officials.

This week, copies of General Municipal Law, Chapter 24, Article 18, Section 805-a and 806, are being sent to all Town, Village, School District and other regulatory boards in Franklin County in an effort to fully apprise elected officials of the prohibited conflicts of interest of Municipal Officers and their employees. Each governing body is also being urged to adopt and/or update their respective Code of Ethics and to consider working with the Franklin County Legislature to adopt a standard code throughout the County.

Our investigation has revealed several contracts, easements, lease option agreements, cooperation memoranda and other types of documents which disclose relationships existing between elected officials and certain third parties in Franklin County (as well as other elected officials in other Counties) which, when allegedly coupled with certain decision making and board action, may be in violation of General Municipal Law (GML) 805-a(1)(c) and (1)(d). If such violations have occurred, these public officials may also be in violation of Penal Law Section 195.00, Official Misconduct and/or Penal Law Section 200, (Bribery Involving Public Servants and related offenses). (Bold added for emphasis.)

We are presently urging all elected officials to examine any and all employment relationships, contracts, contractual arraignments, agreements, leases, easements, payments, agreements for future services, fees, compensation, financial arraignments and other related matters which would fall under the prohibitions of GML 805-a(1)(c) and (1)(d) and to consider as required by law, full disclosure to the public and recusal from voting or participation in legislative decisions in any events where a public official has or may have a financial interest. (1992 N.Y. Op. (Inf.) Att’y Gen. 31) (Bold added for emphasis.)

Through these proactive steps and full compliance with the law, we can attempt to restore and maintain the public’s confidence in our elected officials.  The New York State Attorney General’s Office, in the informal opinion cited above specifically stated, “even the appearance of impropriety must be avoided in order to maintain public confidence in government.”

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According to New York State’s  Commission on Public Integrity:  “Lobbying” or “Lobbying activities” on the local level are defined as any attempt to influence the passage or defeat of any local law, ordinance, resolution or regulation by any municipality or subdivision thereof or adoption or rejection of any rule, regulation, or resolution having the force and effect of local law, ordinance, resolution or regulation or any rate making proceeding by any municipality or subdivision thereof.”

Breathing Note:  Commonsense dictates that if a member —  or the family of a member  —  of one of our local county, town, zoning and/or planning boards has leased mineral rights to a drilling company, that member will benefit from either “the passage or defeat of any local law, ordinance, resolution…”  which also  benefits gas drilling interests.  Further, commonsense dictates that a member who has leased his or her property to gas drilling interests and then supports or opposes local policy for the benefit of gas drilling interests  may be, effectively or apparently,  functioning as a lobbyist for those drilling interests rather than as an advocate for  the public’s interest.

Sections 805-a and 806 of New York State’s General Municipal Law are the most usually-cited statutes governing official conflicts of interest. (Section 806 explains the parameters of local codes of ethics and can be read in full here.)

Section 805-a reads:

  • 1. No municipal officer or employee shall:
  • a. directly or indirectly, solicit any gift, or accept or receive any gift having a value of seventy-five dollars or more, whether in the form of money, service, loan, travel, entertainment,  hospitality, thing or promise, or in any other form, under circumstances in which it could reasonably be inferred that the gift was intended to influence him, or could reasonably be expected to influence him, in the performance of his official duties or was intended as a reward for any official action on his part;
  • b. disclose confidential information acquired by him in the course of his official duties or use such information to further his personal interests;
  • c. receive, or enter into any agreement, express or implied, for compensation for services to be rendered in relation to any matter before any municipal agency of which he is an officer, member or employee or of any municipal agency over which he has jurisdiction or to which he has the power to appoint any member, officer or employee; or
  • d. receive, or enter into any agreement, express or implied, for compensation for services to be rendered in relation to any matter before any agency of his municipality, whereby his compensation is to be dependent or contingent upon any action by such agency with respect to such matter, provided that this paragraph shall not prohibit the fixing at any time of fees based upon the reasonable value of the services rendered.
  • 2. In addition to any penalty contained in any other provision of law, any person who shall knowingly and intentionally violate this section may be fined, suspended or removed from office or employment in the manner provided by law.

Over the years, Attorney Generals in New York State  have issued opinions which may be salient to local concerns that public officials with gas drilling conflicts are not  recusing themselves  from either voting or  discussing drilling  issues that come before them.  Several of those Attorney General Opinions are included below:

  • In Opinion 2002-9  re  Conflict of Interests :

“…if a member of a village’s Board of Trustees, who owns property within the Business Improvement District of the village, has a substantial direct personal interest in the outcome of the Board of Trustees’ vote on the Business Improvement District’s annual budget, recusal from participating in the Board of Trustees’  deliberations and voting on the Business Improvement District’s annual budget is the appropriate course of action.”

“As a general matter, recusal  would be required if the facts and circumstances suggest that the subject trustee has a substantial, personal interest in the outcome of the BID budget vote.  Even the appearance of such an interest would require recusal, in order to maintain public confidence in  government.” (Breathing Note:  If a public official’s property has been leased and will be affected by proposed legislation or changes in legislation, would the same recusal requirement exist?)  (Bold added for emphasis.)

  • In Opinion 96-17  re:  Section 806:

“Public officers have responsibility to exercise their official duties solely in the public interest.  1985 Op Atty Gen (Inf) 101.  They should avoid circumstances which compromise their ability to make impartial judgments and must avoid the appearance of impropriety in order to maintain public confidence in government.”

  • In Opinion 96-27  re:  Section 806:

“Public officials should not, however, accept positions or become involved in outside activities which conflict with their official duties.  Every local government is required to promulgate a code of ethics providing standards for officers and employees with respect to disclosure of interest in legislation before the local governing body, holding of investments in conflict with official duties….”

  • In Opinion 99-42  re Section 806:

“A member of a board of assessment review who owns property before the board for review is obligated to recuse himself from participating in board proceedings with respect to that property to preserve the validity of action taken by the board and maintain public confidence in the integrity of government.”  (Breathing Note:  If a public official’s property has been leased and will be affected by proposed legislation or changes in legislation, would the same recusal requirement exist?)

  • In Opinion 95-2  re:  members with conflict of interests recusing  themselves from all Board deliberations “with respect to that matter or applications”:

“We have found that members of local bodies, including planning boards, with conflicts of interests in a particular application or matter before the body, should recuse themselves from taking any actions with respect to that matter or application.  Op Atty Gen (Inf) No. 9-38; 1988 Op Atty Gen (Inf) 12, 124; 1988 Op Atty Gen (Inf) 115, 117.  We have stated that members with conflicts of interests must recuse themselves from participating in any deliberations or votes concerning the application creating the conflict. Op Atty Gen (Inf)  No. 90-38.   The board member’s participation in deliberations has the potential to influence other board members who will exercise a vote with respect to the matter in question.  Further, we believe that a board member with a conflict of interests should not sit with his or her fellow board members during the deliberations and action regarding the matter.   The mere presence of the board member holds the potential of influencing  fellow board members and additionally, having declared a conflict of interests, there would reasonably be an appearance of impropriety in the eyes of the public should the member sit on the board.”

“Thus, it is our view that once a board member has declared that he or she has a conflict of interests  in a particular matter before the board, that the board member should recuse him or herself from any deliberations or voting with respect to that matter by absenting himself from the body during the time that the matter is before it.”

  • In Opinion 97-5:

“A member of the city council…if the interests of his or her employer are affected by matters before the council, recusal is that appropriate course of action.”  (Breathing Note:  If a member’s income is impacted by  his Board’s action, how can it matter whether that income derives from an employer or a gas lease?)

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As always,  Breathing articles are easily copied and pasted.  It’s good to get the research credit but it’s even more important that the work be used by concerned people for good  purpose.

NYS Drilling Moratorium : Aileen Gunther


During the month of March, many residents of New York State were asked to contact their State Representatives about several pieces of proposed legislation having to do with hydraulic fracturing:

  • 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 April 5, 2010,  Breathing received the following note from Aileen Gunther  (Assembly District 98) “A new bill has been introduced (A10490) by Assemblyman Englebright to establish a moratorium on conducting hydraulic fracturing for the extraction of natural gas or oil until 120 days after the Federal EPA issues their report on the effects of fracking on water quality and public health. I am a co-sponsor of this bill.  I am hearing positive response from individuals and groups regarding this newly introduced legislation.   Although I have not officially signed on as a sponsor of many of the bills you reference, I do support the bills and will support them when they come before the EnCon [Environmental Conservation] committee or to the floor.”  (Bold added for emphasis.)

Although some activists who support a total moratorium have questioned  A10490’s  120-day limit, others believe it’s a middle-of-the-road position — neither obstructing nor approving hydraulic fracturing until a comprehensive study of its effects is completed.  In the past,  the  Environmental Protection Agency (EPA) found many faults with NYS DEC’s draft Supplemental Generic Environmental Impact Statement   (dSGEIS).   Currently, completion and submission  of the dSGEIS is the basis of   New York’s  de facto moratorium. Obviously, A10490 would extend that moratorium  until the completion of EPA’s  “comprehensive research study.”

For  more information concerning the status of the proposed legislation in this article or to contact Ms. Gunther, please follow the supplied-links.  To find your New York State Legislators and to let them know how you feel about the legislation,  please visit the New York State Assembly and/or Senate pages.

As  readers of Breathing Is Political’s “Inverse Condemnation” article  may remember,  NYS Senator John Bonacic has staked a  position on hydraulic fracturing which is different than Ms. Gunther’s and although that position is  protective of lessors,  it does not address the larger issues of human and environmental health.

Coming next:  Local conflicts of interests and incorporating  the above-legislative initiatives into Town and County Board resolutions.