Bill S447-2013

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 filtration

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.

Details

Actions

  • Jan 8, 2014: REFERRED TO ENVIRONMENTAL CONSERVATION
  • Jan 9, 2013: REFERRED TO ENVIRONMENTAL CONSERVATION

Memo

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.


Text

STATE OF NEW YORK ________________________________________________________________________ 447 2013-2014 Regular Sessions IN SENATE (PREFILED) January 9, 2013 ___________
Introduced by Sen. AVELLA -- read twice and ordered printed, and when printed to be committed to the Committee on Environmental Conservation 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 avoid- ance criteria THE PEOPLE OF THE STATE OF NEW YORK, REPRESENTED IN SENATE AND ASSEM- BLY, DO ENACT AS FOLLOWS: Section 1. The environmental conservation law is amended by adding a new section 23-0315 to read as follows: S 23-0315. PRODUCER'S LIABILITY; FILTRATION ARBITRATION DETERMINATION WAIVERS. 1. A PRODUCER, AS DEFINED IN SECTION 23-0101 OF THIS ARTICLE, GRANTED A PERMIT PURSUANT TO THE PROVISIONS OF THIS ARTICLE, FOR THE EXPLORA- TION, DRILLING OR DEVELOPMENT OF WELLS THAT PRODUCE OIL, GAS, SALT OR HYDROCARBON MIXTURE, SHALL BE HELD LIABLE FOR ACTIONS, PERFORMED OR COMPLETED WHILE IN THE PROCESS OF EXPLORATION, DRILLING OR DEVELOPMENT OF A WELL, THAT DIRECTLY RESULT IN THE FAILURE OF A PUBLIC WATER SYSTEM TO MEET ALL OF THE EXISTING FILTRATION AVOIDANCE CRITERIA ESTABLISHED BY 40 C.F.R. S 141.71 AND ANY OTHER FEDERAL OR STATE RULES OR REGULATIONS, AND FURTHER RESULTS IN THE FAILURE OF SUCH PUBLIC WATER SYSTEM TO RECEIVE OR RENEW A FILTRATION AVOIDANCE DETERMINATION WAIVER. 2. ANY PERSON WHO VIOLATES THE PROVISIONS OF THIS SECTION SHALL BE LIABLE FOR SUCH CIVIL PENALTIES OR SANCTIONS AS PROVIDED IN SECTION 71-1307 OF THIS CHAPTER, AND FOR ANY ADDITIONAL CIVIL DAMAGES OR FINES ASSOCIATED TO SUCH VIOLATION. 3. THE COMMISSIONER SHALL ORDER AN IMMEDIATE SUSPENSION OF EXPLORA- TION, DRILLING OR DEVELOPMENT OPERATIONS WHENEVER SUCH ACTIONS ARE IN VIOLATION OF THIS SECTION. ANY ORDER ISSUED PURSUANT TO THIS SUBDIVISION SHALL BE REVIEWED UPON APPLICATION OF AN AGGRIEVED PARTY BY MEANS OF AN
ORDER TO SHOW CAUSE WHICH ORDER SHALL BE ISSUED BY ANY JUSTICE OF THE SUPREME COURT IN THE JUDICIAL DISTRICT IN WHICH ANY ORDER APPLIES AND SHALL BE RETURNABLE ON THE THIRD SUCCEEDING BUSINESS DAY FOLLOWING THE ISSUANCE OF SUCH ORDER. SERVICE OF SUCH SHOW CAUSE ORDER SHALL BE MADE UPON THE REGIONAL OFFICE OF THE DEPARTMENT FOR THE REGION IN WHICH SUCH ORDER APPLIES, AND UPON THE ATTORNEY GENERAL BY DELIVERY OF SUCH ORDER TO AN ASSISTANT ATTORNEY GENERAL AT AN OFFICE OF THE ATTORNEY GENERAL IN THE COUNTY IN WHICH VENUE OF THE PROCEEDING IS DESIGNATED, OR IF THERE IS NO OFFICE OF THE ATTORNEY GENERAL WITHIN SUCH COUNTY, AT THE OFFICE OF THE ATTORNEY GENERAL NEAREST SUCH COUNTY. EXCEPT AS HEREINABOVE SPEC- IFIED, THE PROCEEDING TO REVIEW AN ORDER SHALL BE GOVERNED BY ARTICLE SEVENTY-EIGHT OF THE CIVIL PRACTICE LAW AND RULES. NOTHING IN THIS SECTION SHALL BE CONSTRUED TO RESTRICT THE COMMISSIONER'S ABATEMENT POWERS AS PROVIDED IN SECTIONS 71-0301 AND 3-0301 OF THIS CHAPTER. S 2. The public health law is amended by adding a new section 1170 to read as follows: S 1170. PRODUCER'S LIABILITY; FILTRATION ARBITRATION DETERMINATION WAIVERS. 1. A PRODUCER, AS DEFINED IN SECTION 23-0101 OF THE ENVIRON- MENTAL CONSERVATION LAW, GRANTED A PERMIT PURSUANT TO THE PROVISIONS OF SUCH CHAPTER, FOR THE EXPLORATION, DRILLING OR DEVELOPMENT OF WELLS THAT PRODUCE OIL, GAS, SALT OR HYDROCARBON MIXTURE, SHALL BE HELD LIABLE FOR ACTIONS, PERFORMED OR COMPLETED WHILE IN THE PROCESS OF EXPLORATION, DRILLING OR DEVELOPMENT OF A WELL, THAT DIRECTLY RESULT IN THE FAILURE OF A PUBLIC WATER SYSTEM TO MEET ALL OF THE EXISTING FILTRATION AVOID- ANCE CRITERIA ESTABLISHED BY 40 C.F.R. S 141.71 AND ANY OTHER FEDERAL OR STATE RULES OR REGULATIONS, AND FURTHER RESULTS IN THE FAILURE OF SUCH PUBLIC WATER SYSTEM TO RECEIVE OR RENEW A FILTRATION AVOIDANCE DETERMI- NATION WAIVER. 2. ANY PERSON WHO VIOLATES THE PROVISIONS OF THIS SECTION SHALL BE LIABLE FOR SUCH CIVIL PENALTIES OR SANCTIONS AS PROVIDED IN SECTION 71-1307 OF THE ENVIRONMENTAL CONSERVATION LAW, AND FOR ANY ADDITIONAL CIVIL DAMAGES OR FINES ASSOCIATED TO SUCH VIOLATION. 3. THE COMMISSIONER OF ENVIRONMENTAL CONSERVATION SHALL ORDER AN IMME- DIATE SUSPENSION OF EXPLORATION, DRILLING OR DEVELOPMENT OPERATIONS WHENEVER SUCH ACTIONS ARE IN VIOLATION OF THIS SECTION. ANY ORDER ISSUED PURSUANT TO THIS SUBDIVISION SHALL BE REVIEWED UPON APPLICATION OF AN AGGRIEVED PARTY BY MEANS OF AN ORDER TO SHOW CAUSE WHICH ORDER SHALL BE ISSUED BY ANY JUSTICE OF THE SUPREME COURT IN THE JUDICIAL DISTRICT IN WHICH ANY ORDER APPLIES AND SHALL BE RETURNABLE ON THE THIRD SUCCEEDING BUSINESS DAY FOLLOWING THE ISSUANCE OF SUCH ORDER. SERVICE OF SUCH SHOW CAUSE ORDER SHALL BE MADE UPON THE REGIONAL OFFICE OF THE DEPARTMENT OF ENVIRONMENTAL CONSERVATION FOR THE REGION IN WHICH SUCH ORDER APPLIES, AND UPON THE ATTORNEY GENERAL BY DELIVERY OF SUCH ORDER TO AN ASSISTANT ATTORNEY GENERAL AT AN OFFICE OF THE ATTORNEY GENERAL IN THE COUNTY IN WHICH VENUE OF THE PROCEEDING IS DESIGNATED, OR IF THERE IS NO OFFICE OF THE ATTORNEY GENERAL WITHIN SUCH COUNTY, AT THE OFFICE OF THE ATTORNEY GENERAL NEAREST SUCH COUNTY. EXCEPT AS HEREINABOVE SPECIFIED, THE PROCEEDING TO REVIEW AN ORDER SHALL BE GOVERNED BY ARTICLE SEVENTY-EIGHT OF THE CIVIL PRACTICE LAW AND RULES. NOTHING IN THIS SECTION SHALL BE CONSTRUED TO RESTRICT THE COMMISSIONER OF ENVIRONMENTAL CONSERVATION'S ABATEMENT POWERS AS PROVIDED IN SECTIONS 71-0301 AND 3-0301 OF THE ENVI- RONMENTAL CONSERVATION LAW. S 3. This act shall take effect immediately.

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