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IOGA of NY Response/Revisions to DEC on New Fracking Rules
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IOGA of NY Response/Revisions to DEC on New Fracking Rules

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A 119-page response submitted by Brad Gill, Independent Oil & Gas Association of New York to the NY Dept. of Environmental Conservation about the DEC's latest revision to draft fracking rules for the …

A 119-page response submitted by Brad Gill, Independent Oil & Gas Association of New York to the NY Dept. of Environmental Conservation about the DEC's latest revision to draft fracking rules for the state. The IOGA response is highly critical of the new revisions and makes detailed recommendations on how to fix the proposed rules to ensure drilling actually happens in NY. According to IOGA, they are forced to now be "adversarial" in their stance after working closely with the DEC over the past 4.5 years on this issue.

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  • 1. January 11, 2013New York State Department of Environmental Conservation625 BroadwayAlbany, NY 12233-6510Subject: Draft HVHF Regulations CommentsDear Sir/Madam:Enclosed please find comments from the Independent Oil and Gas Association of New York (IOGA NewYork) relative to the Revised Proposed Regulations proposing amendments to 6 NYCRR Parts 52 and 190,Parts 550 through 556 and 560, and parts 750.1 and 750.3. Thank you for the opportunity to provide thesecomments.In reviewing these comments, you will find that IOGA New York has been forced to take a moreadversarial position with these proposals. Notwithstanding our excellent working relationship over theyears and all the efforts that have been made by industry to educate Department personnel regardingmodern natural gas drilling techniques and best management practices to minimize potential adverseenvironmental impacts, it appears that most of our comments on the previous proposals have not beengiven any credibility and that the Department has erroneously come to the conclusion that the shaleresources in New York State will only be developed by large operators. This is truly unfortunate. Becauseof the failure of the Department to consider our comments that were submitted on January 11, 2012, we areresubmitting those comments. In addition, we are enclosing detailed comments on the Revised ProposedRegulations, together with suggested revisions to certain sections of the Revised Proposed Regulations thatwill ameliorate the adverse consequences of these proposals, without compromising environmental quality.Finally, we are also submitting additional letters from companies that qualify as small businesses under theState Administrative Procedure Act (“SAPA”) to reinforce the need for the Department to provideflexibility with these regulatory proposals and to meet the requirements of SAPA to reduce burdens onsmall businesses.As you are well aware, IOGA New York supports a high environmental bar, but the bar must be attainableby industry in order to have the valuable shale resources in this state properly developed. These regulationsare replete with requirements that have no foundation in science or in the long history of modern drilling inNew York State without adverse environmental consequences. In addition, in a number of instances, theDepartment has exceeded its regulatory authority, again with no scientific or historical basis for theoffensive proposals. For example, one of the most glaring issues is the proposal by the Department torequire a 300-foot setback from wetlands regulated by the United States Army Corps of Engineers. As youare well aware, the jurisdiction of the Department over wetlands is limited by Environmental ConservationLaw Article 24, wherein the Legislature made the determination that only a 100-foot buffer zone is requiredfrom state jurisdictional wetlands. By attempting to regulate federal wetlands and also to implement abuffer requirement that is three times the statutory buffer for state wetlands, the Department has proposed arequirement that is not only illegal, but, in conjunction with the many other proposed setbacks andprohibitions, will make it extremely difficult, if not impossible, to site a well pad in New York State. 38 Lake Street • Hamburg, New York 14075 • Phone (716) 202-4688 • Fax (716) 202-4689
  • 2. Independent Oil & Gas Association Comment LetterJanuary 10, 2013We welcome the opportunity to discuss any of these issues with you and your staff. We urge you to modifythese regulatory proposals in a manner that is lawful, attainable, protective of the environment andconsistent with the statutory mandate that the Department promote the development of oil and gasresources in New York State and protect the correlative rights of landowners to do the same.Thank you for your consideration of our comments and our proposed regulatory revisions.Sincerely,Independent Oil and Gas Association of New York,Brad Gill Executive DirectorEnclosurescc: Andrew M. Cuomo, Governor Joseph Martens, Commissioner Marc Gerstman, Executive Deputy Commissioner Eugene Leff, Deputy Commissioner, Remediation and Materials Management Steven Russo, Esq., General Counsel Bradley J. Field, Director, Division of Mineral Resources Thomas S. West, Esq., The West Firm, PLLC James J. Carr, Hinman Straub PC4811-8179-7138, v. 1 Page 2
  • 3. Comments on the New York State Department of Environmental Conservation’s Revised Proposed Regulations for High-Volume Hydraulic Fracturing Submitted by the Independent Oil and Gas Association of New York January 11, 2013 The Independent Oil and Gas Association of New York (“IOGA”) respectfully submitsthe following comments regarding the Revised Proposed Express Terms 6 NYCRR Parts 52 and190 Use of State Lands Administered by the Division of Fish, Wildlife and Marine Resourcesand Use of State Lands; Revised Proposed Express Terms 6 NYCRR Parts 550 through 556 and560 Subchapter B: Mineral Resources; and Revised Proposed Express Terms 6 NYCRR Parts750.1 and 750-3 Obtaining a SPDES Permit and High Volume Hydro Fracturing (HVHF)(hereinafter the “Revised Proposed Regulations”), as well as the related documents issuedpursuant to the State Administrative Procedure Act (“SAPA”). As part of these comments,IOGA has identified areas where the Revised Proposed Regulations and the related SAPAdocuments fail to comply with legal requirements, thus rendering the Revised ProposedRegulations legally defective and subject to challenge. In addition to the comments that follow,Exhibit A is IOGA’s proposal on how some of the Revised Proposed Regulations should bemodified, which will bring the Revised Proposed Regulations into compliance with law andimprove the overall quality of the Revised Proposed Regulations without compromisingenvironmental standards. Initially, IOGA would like to commend Department Staff’s continuing efforts regardingthese regulatory proposals, including the need to respond to an unprecedented number of publiccomments. Although we recognize that the task at hand has been difficult for the Department, inthe final analysis, the overarching concern of industry remains the failure of the Department toinclude provisions in the regulations that will allow Department Staff to implement theregulations in a manner that protects the environment to the maximum extent practicable, butdoes so in a manner that provides the necessary flexibility to allow the orderly development ofthe shale resources in New York State consistent with the mandates of New York law. IOGA previously submitted comments regarding the previously Proposed Express Terms6 NYCRR Parts 52 and 190 Use of State Lands Administered by the Division of Fish, Wildlifeand Marine Resources and Use of State Lands; Proposed Express Terms 6 NYCRR Parts 550through 556 and 560 Subchapter B: Mineral Resources; and Proposed Express Terms 6 NYCRRParts 750.1 and 750.3 Obtaining a SPDES Permit and High-Volume Hydro Fracturing (HVHF)that were put out for public comment on September 7, 2011 (hereinafter the “2011 ProposedRegulations”). In IOGA’s 2012 Comments, which were submitted on or about January 11, 2012,and are fully incorporated by reference herein (the “2012 Comments”), IOGA identified many ofthe same issues that are identified below, including the need for the Department to provideregulatory flexibility in the final standards such that the Department can meet its balancingobligations under the State Environmental Quality Review Act and fulfill the mandates ofEnvironmental Conservation Law (“ECL”) § 23-0301 to promote the greater development of theoil and gas resources in New York State and to protect the correlative rights of landowners to 1
  • 4. have those resources developed.1 IOGA notes that a complete copy of the 2012 Comments isbeing submitted with these comments. I. Positive changes IOGA has reviewed the Revised Proposed Regulations in great detail, including the changesthat were made as a result of public comment received during the initial rulemaking. IOGAwishes to commend the Department for some changes that were made that were partiallyresponsive to the needs of industry. One example is the flexibility provided by the removal ofthe $2 million cap and the addition of an undefined limitation, as determined by the Department,on bonding requirements for well operators. Although the Department did not accept IOGA’ssuggestion for a financial security test to determine the necessity for bonding, or the adoption ofa specific cap on bonding consistent with levels adopted by other states currently engaging inHVHF, this change provides the Department the ability to determine an appropriate cap forbonding requirements on an owner by owner basis. As is more fully detailed below, IOGAcontinues to believe that the Department should incorporate a financial assurance test to allowthose companies that are fully capitalized to meet the financial assurance intended by theRevised Proposed Regulations, without unnecessarily tying up capital for extended periods oftime. This is particularly true with the shale resources, which are anticipated to produce naturalgas for decades. Likewise, the Department should adopt an overall cap on the amount offinancial assurance that is required, per company, to keep New York State competitive with othershale producing states. As recent experience in New York State and in other states hasdemonstrated, these types of limits provide adequate assurance that the wells will be properlyclosed without the need to tie up unnecessary capital. Further, the Department has provided greater clarity to the application process by addingapplication procedures at proposed Section 560.3(e). IOGA commends the Department forproviding a 10-day window to determine if the application is “functionally complete,” as thiswill move applications along on a predictable schedule. Additionally, processing applicationsfor additional wells on a well pad associated with wells that have already received a Part 560permit without additional public notice or comment period will provide for expediency andefficiency in processing applications. See § 560.3(e)(7). IOGA also notes that the Revised Proposed Regulations require a “flare approval” instead ofa “flare permit,” which was previously proposed. This will increase efficiency in fieldoperations, while maintaining Department oversight over any needed flares. See § 556.2(c). It is acknowledged that the Revised Proposed Regulations modified the documentationrequired to demonstrate the “green frac fluid analysis” requirement, both in Part 560 and Part750-3, by limiting it to “existing data and studies.” See §§ 560.3(d)(1)(viii); 750-3.7(k)(2). Thischange will make assessing the chemicals intended for stimulation and preparing applicationsmore predictable for industry. However, notwithstanding this positive change, industry, after1 These regulatory requirements are complemented by the corresponding language in the Energy Law, whichrequires the State to “foster, encourage and promote the prudent development and wise use of all indigenous stateenergy resources including, but not limited to, on-shore oil and natural gas, off-shore oil and natural gas, [and]natural gas from Devonian shale formations . . . .” New York Energy Law § 3-101(5). 2
  • 5. considerable internal inquiry, has no consensus or definition as to what constitutes a “green”product. The Department should consider utilizing some of the current available standards foradditives used in other geographic regions, even internationally, such as the “North Sea”standard that we believe to be the most rigorous standard. Currently, industry believes itsproducts pass even those stringent requirements. In any event, it is hard to comply with astandard that has no definition or measurement. Moreover, the Department continues to require that the “green” frac fluid analysis beperformed for each well permit application. This is unnecessarily burdensome on industry anddoes not take into account the significant progress that has been made during the four and onehalf years while the revised regulatory standards have been developed in New York in theimprovement of frac fluid chemicals. These improvements have reduced the number andconcentrations of chemicals utilized while enhancing the efficacy of the stimulation process. II. Provisions Demonstrating the Critical Need for Variances and Regulatory Flexibility Although the Department did incorporate some changes to the regulations that are helpful toindustry, in IOGA’s view, there remain significant issues for industry that prevent the RevisedProposed Regulations from being workable or legal. The net result is that the Revised ProposedRegulations will discourage development, rather than promoting development as is mandated bylaw. The 2011 Proposed Regulations contained numerous protective setbacks that were moreextensive than those included in any other state. See §§ 52.3; 560.4(a)(1)-(5); 560.6(b)(1)(ii);750-3.3(a)(1)-(6). The setbacks included in the Revised Proposed Regulations have beenexpanded upon – both for hydraulic fracturing permits and SPDES permitting. Compoundingthis problem, the Revised Proposed Regulations continue to promote extensive prohibitions,including prohibitions on siting within or near the Syracuse and New York City watersheds andcertain aquifers. See § 750-3.3(a)(1) & (2). The Revised Proposed Regulations further maintainthe additional prohibition in Part 52, which provides that no surface disturbance associated withdrilling a HVHF natural gas well is permitted on any State lands, applicable to both pre-existingand new leases. See § 52.3. It is noted that this prohibition is the broadest of any setback, as itprevents any soil disturbance on state lands, which would include access roads, well paddevelopment, and any other aspect of site development that disturbs land. See id. IOGApreviously commented on the inclusion of this prohibition in the 2012 Comments, and all of itsprior concerns are repeated here. Simply stated, these prohibitions are without legal authority and inconsistent with themandate of the ECL that requires the Department to promote the greater recovery of the resourceand protect the correlative rights of the landowners. ECL § 23-0301. In fact, these prohibitionsamount to a taking of mineral rights without just compensation in violation of constitutionalrights.2 See Lucas v. South Carolina Coastal Council, 505 U.S. 1003, 1015 (1992); MartinMarietta Materials, Inc. v. City of Carmel, 2007 U.S. Dist. LEXIS 88922 at *41 (S.D. Ind. Nov.2 No member of IOGA New York is proposing to drill in either the New York City or Syracuse watersheds andIOGA recognizes the political sensitivity of those areas. However, notwithstanding the political sensitivity, theDepartment does not have the authority to ban drilling in any area of the state and any such ban amounts to an illegaltaking of mineral rights without the payment of just compensation. 3
  • 6. 28, 2007); Bass Enters. Prod. Co. v. U.S., 381 F.3d 1360, 1364 (Fed. Cir. 2004) (citing PennCent. Transp. Co. v. New York City, 438 U.S. 104, 124-45 (1978)). Compounding these broad prohibitions are the many setbacks that are proposed, with onlylimited variances available to industry. Specifically, the Revised Proposed Regulations includethe following setbacks in Section 560.4: (a) No well pad or portion of a well pad may be located: (1) within 500 feet from a residential water well, domestic supply spring or water well or spring used as a water supply for livestock or crops; (2) within 500 feet from an inhabited dwelling or place of assembly; (3) within a primary aquifer and a 500-foot buffer from the boundary of a primary aquifer; (4) within a 100-year floodplain; and (5) within 2,000 feet of any public water supply (municipal or otherwise, or the boundaries of any public water supply reservoir, natural lake or man-made impoundment (except engineered impoundments constructed for fresh water storage associated with fracturing operations). See also SGEIS § 7.1.11, pp. 7-73. Importantly, unlike other states that measure setbacks from the wellbore, the setbacks arefrom the closest edge of the well pad. Section 560.4(b). And, the Revised Proposed Regulationsinclude a variance for only two of the five broad setback provisions (for (a)(1) and (a)(2)).Additionally, before the Department can even consider a variance, the applicant must obtainlandowner and (as applicable) tenant consent for the variance. Some of the newly proposed setbacks have substantive problems. The Revised ProposedRegulations include a new setback on water supplies for crops and livestock, which was notdiscussed in the SGEIS, and which further restricts where sites may be located. See SGEISExecutive Summary p. 22. Further, the term “crops” and “water supply” are not defined, makingthe requirement vague. IOGA recommends deleting or at a minimum, defining these terms.With regard to testing in Section 560.5(d)(1), water used for irrigation purposes is not commonlyisolated as applicable sources to be tested in other states and the sources can be difficult tolocate, because they may be as simple as a waterhole dug by a farmer. Section 560.6(b)(1)(ii) contains an additional setback that will restrict available areas tolocate well pads, which provides that “fueling tanks must not be placed within 500 feet of aperennial or intermittent stream, storm drain, regulated wetland, lake or pond.” In removing the“to the extent practical” that existed in the 2011 Proposed Regulations, the Revised ProposedRegulations actually decrease flexibility in siting well pads. This provision is likely to severelyfurther restrict recoverable unconventional shale resources as it is possible that well pads cannotbe properly designed to meet the various requirements contained in the Revised ProposedRegulations as well as this buffer, particularly with no variance provision. Additionally, it ispossible that a hazard could be created because tanks may have to be placed in other areas than 4
  • 7. where they normally are placed, resulting in more fuel transfers and the potential for spills andaccidents. In addition to the setbacks contained in Part 560, the proposed Part 750-3 containsadditional setbacks at Section 750-3.3, providing: Well pads for HVHF operations are prohibited, and no SPDES permit will be issued authorizing any such activity or discharge: (1) within 4,000 feet of, and including, an unfiltered surface drinking water supply watersheds; (2) within 500 feet of, and including, a primary aquifer; (3) within 100-year floodplains; (4) within 2,000 feet of any public (municipal or otherwise) drinking water supply well, reservoir, natural lake, man-made impoundment, or spring; and (See also SGEIS Section 7.1.11, pp.7-73.) (5) within 2,000 feet around a public (municipal or otherwise) drinking water supply intake in flowing water with an additional prohibition of 1,000 feet on each side of the main flowing waterbody and any upstream tributary to that waterbody for a distance of one mile from the public drinking water supply intake; and (See also SGEIS Section 7.1.11, pp.7-73.) (6) within 500 feet of a private water well or domestic use spring, or water supply for crops or livestock, unless the Department has granted a variance from the setback pursuant to subparagraph 560.4(c) of this Title, adopted on XX, 20XX. Again, the setbacks are measured from the closest edge of the well pad, not the wellboreas is common in other states. See § 750-3.3(b). More troublesome is the fact that a number ofthese setbacks are redundant with setbacks contained in proposed Part 560 and, therefore, shouldbe deleted or a reference to Part 560 incorporated in Section 750-3.3. See, e.g. §§ 560.4(a)(3);750-3.3(a)(2) (providing setback of 500 feet from, and including, a primary aquifer); §§560.4(a)(4) 750-3.3(a)(3) (prohibiting siting within floodplains). Others within Section 750-3.3are slightly varied from those contained in Part 560, but are similar enough that, at a minimum,confusion over the application will result. See § 750-3.3(a)(4) (similar to Section 560.4(a)(5)); §750-3.3(a)(6)(similar to Section 560.4(a)(1)). It is also likely that, especially in the absence of avariance provision, an overly broad reading of the setbacks will be imposed to further restrictavailable drilling areas. Indeed, only one category (Section 750-3.3(a)(6)) of the six setbackscontained in Section 750-3.3 contemplate a variance. The Department must streamline these inconsistent provisions and, if no revisions aremade, must provide a rationale for why these slight variants are needed in Section 750-3.3(a)versus the identical or nearly identical setbacks contained in Section 560.4, as well as what thesevariants will accomplish. IOGA attaches as Exhibit A proposed revised regulations, including a 5
  • 8. proposed revised Section 750-3.3, streamlining the setbacks and allowing a variance consistentwith those provided in Section 560.4. Additionally, an updated Section 560.4, acknowledgingthe revisions to Section 750-3.3 is also included within the attached Exhibit A. Proposed Section 750-3.5(c)(1) presents an additional limitation that will eliminateeligibility for an exemption from SPDES permitting requirements contained in proposed Section750-3.5(b) for many sites. The provision provides: (c) At a minimum, in order for the department to make a determination that the injection will not result in the degradation of ground or surface water resources pursuant to paragraph 750-3.5(b)(2) of this Part: (1) the top of the target fracture zone, at any point along any part of the proposed length of the wellbore, for HVHF must be deeper than 2,000 feet below the ground surface and must be deeper than 1,000 feet below the base of a known freshwater supply; and (2) the owner or operator must have measures in place to ensure compliance with the requirements of paragraphs 750-3.7(k)(1), (2), (3), (4), (6), and (7) of this Part and subdivisions 750-3.7(l), (m), and (n) of this Part. In addition to these general disqualifiers, the proposed SPDES general permit for HVHFoperations is unavailable for sites located in certain buffer areas: (1) within 500 feet of a principal aquifer (2) within 300 feet of a state or federal wetland; (3) within 300 feet of perennial or intermittent streams, as described in Parts 800-941 of this Title, storm drains, lakes or ponds.” See § 750-3.11(d); see also SGEIS § 7.1.11, pp.7-73. Finally, all of these buffers and setbacks are supplemented with the revised draft SGEISpublished in 2011,3 which includes as proposed mitigation a number of other prohibitions onareas where drilling may occur: (1) Prohibition on HVHF construction and drilling activities occurring in contiguous grassland habitat of 30 acres or more during nesting season of grassland birds for “Grassland Focus Areas” See SGEIS Executive Summary p. 24; see also SGEIS § 7.4.1.2, pp. 7-79-82. (2) Site specific ecological assessment and implementation of mitigation measures for HVHF activities in contiguous forest patches of 150 acres or more in “Forest Focus Areas.” See SGEIS Executive Summary p. 24; see also SGEIS § 7.4.1, pp. 7-83-87.3 Of course, IOGA has no way of knowing whether additional restrictions have been added to the SGEIS since itslast publication in 2011. If additional restrictions and/or setbacks are included with the final SGEIS, these problemswill be compounded even further. 6
  • 9. (3) Site specific EIS required for HVHF on “principal aquifers” or within a 500 foot buffer outside of “principal aquifers.” SGEIS Executive Summary p. 21; see also SGEIS § 7.1.11, pp.7-73. Given the breadth and extent of setbacks that were originally proposed, industry isconcerned that yet further setbacks and prohibitions have been added to the Revised ProposedRegulations. Industry is particularly concerned because there is a complete absence of anyfactual basis for most of the setbacks as well for the extensiveness of the setbacks in the RevisedProposed Regulations or the SGEIS. Indeed, industry’s proven track record would support lesserregulation, not further, more stringent prohibitions as has occurred in the Revised ProposedRegulations. In IOGA’s view, the prohibitions on siting within a primary aquifer and a 100 yearfloodplain are unnecessary. Industry has an excellent track record of drilling within primaryaquifers for many years without incident which would support allowing drilling in these areas.Further, the prohibition on 100 year floodplains is unneeded. Operators in other states routinelydrill in floodplain areas, with effective, proven contingency methods that avoid incident duringfloods. In fact, the experience of the natural gas industry in the Northeast during tropical stormIrene demonstrated that the natural gas industry is more than capable of dealing with severeflood conditions. There were no incidents reported at natural gas sites. In a similar vein, IOGAopposes the requirement for a specific EIS for principal aquifers. Like primary aquifers, industryhas decades of experience drilling in these areas without incident. It is also evident from the paltry regulatory support documents putatively prepared incompliance with SAPA that the Department has not considered other factors in proposing theseextensive prohibitions and setbacks. Two factors that are highly relevant to the location of wellpads include terrain and the availability of surface rights. Terrain is an obvious issue that needslittle explanation.4 The Southern Tier where most of the shale development will occur is an areaof the state that has hilly terrain, with steep slopes and limited areas that are suitable for wellpads. There is nothing in any of the analysis put forth by the Department that indicates that theDepartment has considered this limitation in relation to the prohibitions and setbacks that havebeen proposed. Likewise, it is very common in New York State for landowners to restrict orprohibit surface access as part of an oil and gas lease. Yet, there is nothing in the regulatorysupport documents that indicates that the Department considered this limitation in relation to theprohibitions and setbacks. As a consequence, the Revised Proposed Regulations will make itextremely difficult, if not impossible, to find proposed well pad locations when all of theprohibitions and setbacks are factored in with limitations created by to terrain and surface rights. Of greatest concern to the industry is the failure of the Department in the RevisedProposed Regulations to include a general variance provision or waivers to provide regulatoryflexibility. Simply put, industry cannot operate under a regulatory scheme that does not providesubstantially greater flexibility, including a broad variance provision. In sharp contrast to theway the Department is proposing to regulate the oil and gas industry, the Department has enactedmore than 40 separate regulatory provisions across numerous programs it administers, each of4 The Department is obviously aware of the significant slopes in the Southern Tier and has also proposed adisqualification from obtaining a general permit in certain areas with steep slopes. See proposed §750 –3.11(f)(2)(iii). 7
  • 10. which that allow applicants to vary or modify the governing regulations. Attached as Exhibit Bis a listing of these regulations. Many of these provisions, if not the majority, are a general variance authorizationallowing “any provision” of the regulatory program to be varied provided environmentalstandards can be met. Such general variances are provided for many industries whose solepurpose is to handle waste, and on a permanent basis, including hazardous and radioactive waste,both during transport and at waste management facilities. See 6 NYCRR § 360-1.7 (allowingvariance for solid waste management facilities); 6 NYCRR § 361.1(allowing variance forhazardous waste disposal facilities); 6 NYCRR § 364.1 (allowing variance for solid wastetransporters); 6 NYCRR § 370.3 (allowing variances for hazardous waste managementsystems); 6 NYCRR § 373-1.1(allowing variances for hazardous waste treatment, storage anddisposal facilities); Id. at 373-3.10(allowing variances for owners and operators of hazardouswaste facilities); 6 NYCRR § at 376.1 (allowing variances for hazardous waste land disposal); 6NYCRR § 376.4 (allowing variances from treatment standards required for treatment ofhazardous waste); 6 NYCRR § 380-3.5 (allowing variances for discharge and disposal ofradioactive material to the environment); 6 NYCRR § 381.8 (allowing variances for transport oflow level radioactive waste); 6 NYCRR § 382.4 (allowing variances for low level radioactivewaste disposal facilities). Petroleum storage facilities are also provided a general varianceprovision. See 6 NYCRR 614.1. Indeed, even as part of remediating suspected or knowncontaminated sites as part of the Brownfield Cleanup Program the Department allows variationfrom a strict cleanup standard to suit a particular site. See 6 NYCRR §375-3.8(e)(4); see also 6NYCRR § 375-1.8 (allowing flexibility in remedial programs). It is evident that even where, by statute, a substance is designated hazardous, radioactive,or otherwise a contamination risk, the Department has consistently included a flexible varianceprovision allowing site-specific standards that are protective of the environment. And yet, forHVHF, a temporary process with numerous safeguards included in the practice and required bythe evolving regulatory standards, virtually no variance provisions are provided. There isdemonstrably absent a general variance provision such as is provided for the solid, hazardousand radioactive waste industries, despite the critical need for one in light of the numeroussetbacks and prohibitions the HVHF industry must follow. The Department has provided norationale for its disparate treatment of HVHF, an industry whose practices present substantiallyfewer risks to the environment than industries involved in management, transport and disposal ofsolid waste, hazardous waste, radioactive waste, and petroleum - all industries with a longhistory of discharges to the environment and corresponding environmental contamination –whose regulations contain generous variance provisions. As the Department is well aware, the oil and gas industry has an excellent track record inNew York State, both in terms of developing deep wells and hydraulically fracturing many wells,without any significant adverse environmental impacts. Although HVHF presents someadditional challenges, those challenges are more than adequately managed through the extremelyrobust regulatory program that is being created under the SGEIS and the Revised ProposedRegulations. There is simply no justification for treating the oil and gas industry differently thanvirtually every other industry that is regulated by the Department. This is particularly so with thenumerous prohibitions and setbacks that have been proposed, which will, absent the variance 8
  • 11. provision, render much of the state off-limits to oil and gas development. A proposed varianceprovision for Part 560 and for Part 750-3 is included in Exhibit A. Additionally, these proposed setbacks and prohibitions are arbitrary and capriciousbecause the draft SGEIS5 does not provide data or other record support for the scope of therestrictions that the Department has proposed. Indeed, even in its response to comments theDepartment provides no basis for the setbacks and the need to expand them. Previous commentsfrom industry have pointed out that the proposed setbacks vastly exceed those required by otherstates and the Department fails to provide a reasoned basis for asserting that those setbacks areinadequate. Such a failure renders the Revised Proposed Regulations arbitrary and capricious,and subject to annulment. See New York State Ass’n of Counties v. Axelrod, 78 N.Y.2d 158,166-69 (1991) (finding regulations lacked rational basis because of lack of evidence in the recordsupporting across the board increase in cost); see also Law Enforcement Officers Union, Dist.Council 82, AFSCME, AFL-CIO v. State, 229 A.D.2d 286, 291 (3d Dep’t 1997) (finding singlehousing regulation arbitrary and capricious because it contains a minimum square footagerequirement while double occupancy housing does not contain such a requirement). The Courtof Appeals in New York State Association of Counties cited the often-repeated general rule that“an administrative regulation will be upheld only if it has a rational basis, and is notunreasonable, arbitrary or capricious.” New York State Ass’n of Counties, 78 N.Y.2d at 166.The Revised Proposed Regulations do not provide record support for a number of the proposedsetbacks and, in particular, for the increases to setbacks previously included in the 2011Proposed Regulations. In the absence of this explanation, the Revised Proposed Regulationscould not stand judicial challenge. Compounding this arbitrary and capricious treatment of the oil and gas industry, theRevised Proposed Regulations impermissibly assert state jurisdiction over federal wetlands withthe consequence that it will be extremely difficult, if not impossible, to site well pads and accessroads. As noted above, Section 750-3.11(d) of the Revised Proposed Regulations disqualifies anoperator from obtaining the general stormwater permit if any activities are located within 300feet of a federal wetland. (The Revised Proposed Regulations now include a definition for“wetland” applicable to Part 750-3. See § 750-3.2(b)(54) (defining wetland as “any arearegulated pursuant to Article 24 of the Environmental Conservation Law and any other wetlandsregulated under Section 404 of 33 U.S.C. 1251 et seq.”). Initially, IOGA questions the legalauthority of the Department to include within the definition of “wetland” wetlands that qualify asfederal wetlands. As the Department is well aware, the limits of the Department’s jurisdictionregarding wetlands are detailed in ECL Article 24. This effort to incorporate federal wetlandsinto the regulatory definition is, therefore, ultra vires.6 The buffer contained in Section 750-3.11(d), which is three times greater than thatestablished by statute for New York regulated freshwater wetlands generally, unduly restrictsand complicates development of the Marcellus shale resource. See ECL 24-0701(2). Sincefederal regulations have no minimum acreage requirement and can be often found as ruts in old5 See Footnote 3, above.6 Industry acknowledges its requirements to comply with federal laws regarding potential impacts to wetlands thatare jurisdictional under those laws. As in the past, industry will continue to work with the United States Army Corpsof Engineers concerning any permits or approvals that are necessary. 9
  • 12. logging roads and the like, this potential proposed setback could have devastating consequenceson the development of the shale resources in New York. Indeed, substantial additional areas ofthe Marcellus shale will now be foreclosed from development through use of the HVHF SPDESGeneral Permit, and operators would have to expend significant additional time and money on anindividual SPDES permitting process, which could ultimately result in adjudicatory hearings anda waste of the resource in contravention of ECL 23-0301. With these new buffers and theadditional setbacks contained elsewhere in the Revised Proposed Regulations, the already greatlyreduced available areas, which were previously estimated to make approximately 50% of theresource off-limits to development, are further restricted such that it will be difficult for anycompany to justify an investment in New York. As mentioned above, a variance provision isdesperately needed to avoid lengthy cost and delay in permitting and this illegal extension of theDepartment’s jurisdiction over wetlands should be eliminated from the Revised ProposedRegulations entirely. In addition, there is a fundamental unfairness to this restriction. No other SPDESGeneral Permit imposes a 300 foot restriction based on proximity to wetlands or any other waterresource. Indeed, the one general permit that includes any buffer at all includes only a 100 footbuffer, applicable to the actual deposit of waste on the ground near the wetland, in stark contrastto HVHF operations, which may only discharge stormwater. The other five SPDES generalpermits contain no wetland or similar buffers, including, notably, the SPDES construction permitfor well drilling activities issued April 1, 2010. See SPDES General Permit for StormwaterDischarges from Construction Activity (GP-0-10-001) Requirements for Well Drilling Activities,NYS Dep’t of Environmental Conservation (Apr. 1, 2010), available athttp://www.dec.ny.gov/docs/water_pdf/welldrilling.pdf. Therefore, any other applicant orindustry could place their operations 100 feet from a New York-regulated wetland with nowetland or other permit, while, at the same time, that applicant could utilize the SPDES GeneralPermit. The same unfairness exists for those projects proposed to be developed in a portion ofthe wetland, which could use the state freshwater wetland permitting program. Indeed, no otherindustry subject to Department regulation must comply with a flat prohibition relating towetlands. (And, to the extent any buffers exist, those other programs could obtain a variance inrelation to the buffer). This regulatory prohibition prevents solely the HVHF industry fromusing a SPDES general permit while being located near a wetland, and restricts the ability of theHVHF industry to utilize the existing statutory freshwater wetland permit program to developsites. Additionally, with respect to federal wetlands, any other industry could develop as closeas directly adjacent to the wetland with no wetland permit, and still utilize a NY SPDES GeneralPermit. No other Department program attempts to usurp or piggyback on Federal permittingauthority and then compound this illegal extension of its regulatory authority with an excessivebuffer. Indeed, 6 NYCRR § 360-2.12(c)(8) shows proper deference to the governing federalagency in prohibiting siting landfills in federal wetlands unless an Army Corps of Engineers(“ACOE”) permit is obtained, and requiring consideration of alternatives, but only to the extent“required under federal or State law.” The Revised Proposed Regulations should similarlyrecognize the authority of the ACOE to determine proper regulation of the wetlands under itsjurisdiction. Since the Revised Proposed Regulations seek to impose a buffer zone on federal 10
  • 13. wetlands, where none exists at federal law, not only does this extend the Department’sjurisdiction impermissibly, but it conflicts with the Clean Water Act. More specifically, in the absence of this restriction by the Department, a number ofNationwide Permits (“NWP”) exist that would allow HVHF operations to discharge into or evendisturb federal wetlands while also using the SPDES General Permit. For example, the ACOEincludes in its Nationwide Permit Program a specific NWP for construction or modification ofoutfall and associated intake structures. See Army Corps. of US Engineers, 2012 NationwidePermits, Conditions, District Engineer’s Decision, Further Information, and Definitions (withcorrections), Permit #7 (2012), available at http://www.usace.army.mil/Missions/CivilWorks/RegulatoryProgramandPermits/NationwidePermits.aspx. The ACOE has also authorized up to aone-half acre loss of waters of the United States for the purpose of placing utility lines, includingpipelines carrying natural gas. See id. at Permit #12. There are a number of other permits that,absent this substantial prohibition, an HVHF operator could utilize to develop its well pad. Seeid. at Permit #18 (authorizing minor discharges of dredged or fill material into up to one-tenth ofan acre of federal wetlands); see also id. at Permit #19 (allowing up to 25 cubic yards ofdredging in waters of the United States); see also id. at Permit #33 (authorizing temporarystructures, work, and discharges, necessary for construction activities, access fills or dewateringof construction sites); see also id. at Permit #43 (permitting discharges of dredged or fill materialto construct storm water management facilities). Even assuming it is legally permissible for the Department to infringe upon a federalagency’s regulatory authority in this way, it is confusing to the extreme that the Departmentwould prohibit HVHF operations within 300 feet from wetlands from using a SPDES GeneralPermit when the very Federal agency regulating them has determined those sites may bedisturbed or impacted using the expedited NWP process. Beyond these numerous NWP avenuesordinarily available to an applicant, an individual permit could also normally be applied for. Theproposed 300 foot buffer, therefore, also forecloses the HVHF industry from utilizing an existingfederal statutory scheme to develop its property in an efficient manner which minimizes theregulatory burden. What this means is that an HVHF operator could obtain an approval from theACOE to disturb wetlands to build its well pad, to then have the Department require anindividual SPDES permit application, which would subject an operator to unnecessary,protracted proceedings, and which could ultimately preclude development, all on the basis of thisexcessive 300 foot buffer. Critically, the Department’s actions in engulfing all of the wetlands regulated by separateFederal agencies deprive the various Federal agencies charged by law with regulating thesewetlands the opportunity to exercise that authority. This provision must be deleted, or at leastmodified to, at a minimum, remove the federal wetlands subject to other agencies’ review fromthe scope of “wetlands” subject to the buffer. Additionally, in the absence of a demonstration asto why a buffer three times the size of the statutory buffer surrounding New York regulatedwetlands is necessary for use of the proposed HVHF SPDES General Permit, the 300 foot buffershould be rejected and the 100 foot buffer applicable to New York regulated wetlands in generalreinstated. Since the 100 foot buffer zone is established by statute (ECL §24-0701(2)), this is yeta further example of where the Department has engaged in ultra vires activities. 11
  • 14. III. State Administrative Procedures Act (SAPA) Issues As IOGA commented previously in its 2012 Comments, the 2011 Proposed Regulations,and the related Regulatory Impact Statement (“RIS”) and Regulatory Flexibility Analysis(“RFA”) fail to comply with a number of the mandates of SAPA. Several defects continue toexist in the current Revised Regulatory Impact Statement (“RRIS”) and the Revised RegulatoryFlexibility Analysis (“RRFA”) issued in conjunction with the Revised Proposed Regulations.Indeed, some of the defects have worsened. IOGA previously submitted substantial comments regarding the essential requirementthat the RIS detail the significant financial costs to industry to comply with the 2011 ProposedRegulations. See SAPA 202-a (3)(c)(i) & (iii). To aid with this effort, IOGA provided anassessment of the permitting and planning costs associated with the 2011 Proposed Regulations.The RRIS acknowledges receipt of these costs, but largely reports the numbers as speculativeand excessive, without documentation to support that claim. The RRIS notes some attempts thatwere made to obtain more information; however, it fails to provide “a statement setting forth itsbest estimate” in the absence of an analysis of costs as required by SAPA 202-a(3)(c)(iv).Rather than complying with these statutory requirements and either accepting the cost analysesprovided by industry or documenting meaningful alternative numbers, the Department bootstrapsthis issue by asserting that the cost will include the “potential costs that the regulated communityshould have expected from the mitigation measures and/or permit conditions that have beenidentified in the rdSGEIS.” NYS Dep’t of Environmental Conservation, Revised RegulatoryImpact Statement: High-Volume Hydraulic Fracturing - 6 NYCRR Parts 52, 190, 550-556, 560,and 750, Proposed Regulations (2013); available athttp://www.dec.ny.gov/regulations/87440.html. This position fails to recognize that the Revised Proposed Regulations and the mitigationstandards being developed under the SGEIS are being developed in tandem, on a parallel track.If the Department’s position were true, there never would be a requirement to assess the cost ofnew regulations if those regulations are evaluated under the State Environmental Quality ReviewAct. This, of course, is not true. Accordingly, the RRIS and related documents utterly fail toprovide a quantifiable best estimate of cost to demonstrate “the cost for the implementation of,and continuing compliance with, the rule to regulated persons.” See RRIS; SAPA § 202-a(3)(c)(i). Without this estimate, the enactment of the Revised Proposed Regulations violatesSAPA. More importantly, there is no assessment of the cost to comply with the RevisedProposed Regulations or a meaningful basis to assess less costly alternatives for industry.Accordingly, the Department has failed to comply with a number of statutory mandates ofSAPA, including those mandates which require that agencies minimize the cost to smallbusinesses. IOGA also notes that its prior estimate of cost is likely inaccurate now, as the RevisedProposed Regulations include a number of new regulatory requirements that will imposeadditional cost on the regulated community. As just one example out of a number of newrequirements imposing cost, additional water sampling is now required, both for baselineanalysis (including an increase in the number of sources that must be tested, as well as theparameters to be tested for), and flowback and production brine. This sampling will generatenew costs not previously assessed by IOGA and, critically, not addressed by the Department in 12
  • 15. the RRIS. This violates SAPA. Likewise, the Department has not provided any meaningfulanalysis of the cost to develop all of the plans that are required to support permit applications.These regulatory omissions must be corrected. When these direct costs are included with theindirect costs incurred in the many areas of the state that will be off limits to development,resulting in loss of investment in the leases, geologic assessments and the like, the conclusion isinescapable that the Department has violated SAPA. (To say nothing of the staggering cost ofcompliance with the Revised Proposed Regulations). Additionally, the Revised Proposed Regulations now contain a requirement that applicantsfor HVHF well permits “pay all permit fees required under the Environmental ConservationLaw” and that the “applicant . . . pay any costs assessed by the department pursuant to section 8-0109(7) of the Environmental Conservation Law and . . . sections 617.13 and 618.1” of 6NYCRR. See § 560.3(f). Although 6 NYCRR Section 617.13 putatively allows the Departmentto recoup its costs in preparing or reviewing an EIS, including “a chargeback to recover aproportion of the lead agencys actual costs expended for the preparation of a generic EIS,” thisis the first time that the Department has announced its intention to assess these costs againstindustry. Notably, even though the process to develop the SGEIS has been pending forapproximately four and one-half years, the Department never raised this issue publicly. As such,the Department should be estopped from asserting these costs retroactively at this point in theprocess. In addition, the RRIS fails to specify any estimate of the actual costs the Departmenthas expended in preparing the SGEIS, and has failed to provide any indication of how the coststo each applicant will be determined and assessed. As the costs to prepare the SGEIS areuniquely within the Department’s knowledge, omitting this information in its assessment of coststo industry in the RRIS cannot pass muster under SAPA. Indeed, the RRIS does not evenmention that there is a cost associated with this new application fee requirement, or any of theother new costs the Revised Proposed Regulations include. Lastly, the proposal to assert SEQRA fees through 6 NYCRR §§ 617.13 and 618.1 does noteven acknowledge the limits on those costs provided in the Department’s own SEQRAregulations. As provided in the regulations, those costs are limited to a percentage ofdevelopment and other costs set forth in Section 617.13(b), (c) and (d). Of course, theDepartment is required to follow its own regulations. See Era Steel Constr. Corp. v. Egan, 145A.D.2d 795, 799 (3d Dep’t 1988). Particularly relevant here is subparagraph (d), which limitscosts associated with applications regulated under the minerals program. Since the oil and gasprogram is part of the minerals program, the Department is limited by subparagraph (d) in theamount that can be charged to each applicant. Under that regulatory provision, each applicantcould be charged a maximum fee for each unit developed based upon a percentage of the totalcost to develop the well pad and the access road, and the cost to run any utilities, if any, to thewell pad. IOGA is willing to accept this limitation as a compromise concerning this issue. Thosecosts could be charged against the initial permit or permits that are part of the application leadingto the development of the well pad and access road within the unit established by the initialpermit application. Thereafter, no additional fees would be assessed against infill wells drilledfrom the common well pad. In addition to the violations noted above, SAPA Section 202-a(3)(g) requires a discussion ofalternatives and the reasons why those alternatives were not incorporated into the rule. IOGA 13
  • 16. previously commented that the RIS is required to have sufficient discussion of alternatives, andthat the RIS failed to do this, which was particularly egregious given the significant costs beingimposed on the regulated community and the failure of the Department to incorporate regulatoryflexibility into the Revised Proposed Regulations. Additionally, IOGA noted that its “commentsidentify a number of less costly alternatives to avoid and/or minimize” impacts to the regulatedcommunity, including small businesses. 2012 Comments, Tab 3, p.3. The RRIS fails toacknowledge that any alternatives were suggested in public comment, particularly by theindustry to be regulated, and instead continues to rely on the limited no-action alternative and the‘denial of permits’ alternative. This violates SAPA. A significant evaluation of additional, lesscostly alternatives is required to properly finalize and adopt the Revised Proposed Regulations.Once again, IOGA is submitting proposed changes to the Revised Proposed Regulations that willaccomplish the Department’s goal of protecting the environment while providing the industrywith necessary flexibility. Should the Department fail to adopt these changes, it will be, yetagain, in further violation of SAPA. Perhaps the most egregious violation of SAPA is the failure of the Department toacknowledge the significant regulatory impacts on small businesses and to identify measures tominimize those impacts. As the Department is well aware, SAPA contains a requirement for theDepartment to prepare a regulatory flexibility analysis. See SAPA § 202–b(2). IOGApreviously commented that the RFA failed to consider impacts to small businesses engaging inHVHF as required by SAPA. IOGA additionally provided letters from ten (10) separatecompanies intending to engage in HVHF operations in New York that meet SAPA’s definition of“small business.” Notably, at least eight (8) of those letters were from operators who identifiedtheir prior investments that were intended to develop shale resources in New York State, whichare in jeopardy, or were going to be sold because of the significant regulatory cost and burdenincluded in the 2011 Proposed Regulations.7 Each letter discussed the impacts that will beexperienced by that small business and many asked that the Department provide further reviewof the impact to small businesses and propose alternative, less costly requirements to allow smallbusinesses to be competitive in the HVHF field. Several of the letters also emphatically statedthat their businesses and the oil and gas industry in general, will be forced to stop doing businessin New York if the regulatory requirements remain as burdensome as then proposed. The RRFA does not acknowledge any of these comments or the many other comments thathave been received from small businesses. Instead, the RRFA outright states that “it is notexpected that small businesses . . . will be engaged in HVHF itself.” See NYS Dep’t ofEnvironmental Conservation, Revised Regulatory Flexibility Analysis for Small Businesses &Local Governments, p. 4 (2012), available at http://www.dec.ny.gov/docs/administration_pdf/rhvhfrfa2.pdf. This statement patently false, as is demonstrated by the small business lettersattached to the 2012 Comments and the new small business letters that are attached to thesecomments. See Exhibit C, attached. Notably, any impacts to small businesses that were reportedin the 2012 Comments have increased, as the Revised Proposed Regulations include a number ofnew requirements that will increase costs experienced by small businesses. The RevisedProposed Regulations, therefore, place an enormous new burden on small businesses,particularly those that intend to engage in HVHF operations (such as the companies who7 New small business letters are attached as Exhibit C, which includes letters from many of the same companies thatprovided letters in support of the 2012 Comments. 14
  • 17. previously commented), which requires that the RRFA make an effort to determine the impactsto those businesses. Accordingly, the RRFA is defective in its failure to consider any of these impacts to smallbusinesses that may engage in HVHF operations. This is a direct result of the failure of theDepartment to acknowledge that small businesses will be impacted by the Revised ProposedRegulations and to provide regulatory flexibility in the revised proposal to minimize the impactto small businesses. Of course, the Department can still make revisions to the Revised ProposedRegulations to incorporate regulatory flexibility and, therefore, minimize the impact to smallbusinesses. The best example is the need to provide general variance provisions, similar to thevariance provisions in the many other regulatory programs administered by the Department,consistent with IOGA’s comments above. Also, the Department must eliminate a number of theregulatory proposals identified above that clearly are in excess of the jurisdiction of theDepartment. IV. Technical Comments a. 551.6 – Financial Security As mentioned above, IOGA acknowledges the amendment to proposed Section 551.6 tospecify that the Department will approve a bonding cap for each owner. However, IOGApreviously cited bonding levels of $15,000 to $60,000 for Ohio and West Virginia, withPennsylvania considering a blanket bonding cap of $600,000. West Virginia ultimately adopteda bonding limit of $250,000 in Pennsylvania adopted a bonding limit of $600,000. TheDepartment did not acknowledge the expertise of its sister states currently engaging in HVHF.Further, this proposed regulation provides financial uncertainty for industry, as they will not beable to reliably predict the capital requirements for a particular permit requirement with noindication whatsoever of the bonding the Department may impose. This uncertainty also violatesSAPA, as discussed above. It warrants noting that the Department includes a variance procedurein at least two other regulatory programs (hazardous and radioactive waste) to allow an applicantto demonstrate financial responsibility and thereby be relieved from excessive financialassurances. See 6 NYCRR § 373-2.8 (allowing a variance from financial assurance requirementsunder the hazardous waste treatment, storage and disposal facilities program); see also 6NYCRR § 3.8 (allowing a variance from financial assurance requirements for hazardous wastefacilities); see also 6 NYCRR § 383-1.5 (providing procedure for variance from financialassurance requirements for low-level radioactive waste disposal facilities); see also 6 NYCRR §383-6.11 (providing for variance from financial assurance requirements for radioactive wasteland disposal facilities). A similar program could be incorporated in the Revised ProposedRegulations. Therefore, IOGA encourages the Department to adopt a reasonable cap on bondingconsistent with other states, and with the requirements of SAPA, including, as previouslyrequested in IOGA’s comments, a financial test for financial security. 15
  • 18. b. Part 553 – Well Spacing Requirements IOGA commends the Department for continuing to include a variance provision in thewell spacing provisions, consistent with the recognition in the statute that nonconforming unitsshould be available to operators. ECL § 23-0503(3). However, the Proposed RevisedRegulations do not go far enough in that they do not incorporate the statutory standards set forthin ECL § 23-0503(3) for establishing a unit that does not conform to statewide spacing.Recommended additions are set forth in the IOGA revisions to the Revised ProposedRegulations. See Exhibit A. Many operators believe that when prudent planning and efficientresource development considerations are put into effect together with the many restrictions andsetbacks that are proposed by the Department and the natural limitations of terrain andlandowners’ restrictions to surface access that it will be necessary to propose nonconformingunits and to propose wellbore paths that do not conform to the requirement to centralize theinitial wellbore. Accordingly, these variance provisions will be important to determiningwhether the development of deep shale resources can be conducted in New York on a practical,operable or profitable basis. c. 554.1(c)(1) Recycling to the “Maximum Extent Feasible” The Department modified proposed Section 554.1(c)(1) from the 2011 ProposedRegulations to incorporate changes that could create significant additional costs and regulatoryburdens upon industry. The 2011 Proposed Regulations based the requirement to prepare a fluiddisposal plan on whether there is a “probability . . . that brine, salt water or other polluting fluidswill be produced or obtained . . . in sufficient quantities to be deleterious to the surroundingenvironment.” Now, the Department has removed that limitation. Instead, a fluiddisposition/disposal plan is required for all permit applications, as well as “any operationreported to the department on the Sundry Well Notice and Report form that requires pre-approvalfrom the department.” See § 554.1(c)(1). This makes no distinction for de minimus generationof materials required for disposal, particularly for the Sundry Well Notice and Report formrequirement, which may involve changes that do not generate waste, and yet a fluid disposal planwould be required. Further, the spectrum of materials that must be managed in the plan has greatly increased.Previously, the Department proposed to require disposal plan for “fluids.” Now, the Departmenthas increased this to include “used drilling mud, flowback water, and production brine.” Id.Additionally, this proposed regulation now contains a requirement that “[t]he owner or operator [] state in its plan that it will maximize the reuse and/or recycling of used drilling mud, flowbackwater and production brine to the maximum extent feasible.” Id. While industry embraces reuseand/or recycling of materials resulting from the HVHF process, requiring reuse and/or recycling“to the maximum extent feasible” places an unclear and unmanageable burden on industry thatcould create frequent challenges to the sufficiency of a fluid disposition/disposal plan. Such astandard does not take cost or practicality into consideration, as various recycling or reusemethods may technically be “feasible,” but may be cost-prohibitive, or may generate impactsgreater than disposal methods that do not involve recycling or reuse; e.g., some of the recyclingtechnologies employ significant amounts of energy. In sum, this language is too absolute, and 16
  • 19. would require an operator to follow what is viewed as the maximum reuse/recycling solution,regardless of cost. This is an unreasonable burden to impose on industry and is yet anotherexample of where the Department has crafted the Revised Proposed Regulations in a manner thatis too restrictive and without the required regulatory flexibility. To address the unreasonableness of the requirement that recycling and/or reuse of useddrilling mud, flowback water and production brine be to the “maximum extent feasible,” whilestill accomplishing the goal to recycle and/or reuse materials as often as possible, IOGA hasprepared suggested revisions to Section 554.1(c)(1) in the attached Exhibit A. d. 556.2(b), (c); 560.6(c)(28)(29); EPA NSPS, 40 CFR 60 Subpart OOOO Flaring Issues The Department made some revisions to various proposed regulatory provisionsgoverning potential air emissions related to the HVHF process. See, e.g. 6 NYCRR §§ 556.2(b),(c), 560.6(c)(28), (29). The Revised Proposed Regulations require that venting gas duringflowback must be through a 30 foot flare stack (unless previous wells show no hydrogen sulfidein the gas) and must be ignited “whenever possible.” § 560.6(c)(28). The stack must have a selfigniting device. Id. The Revised Proposed Regulations also require that reduced emissionscompletions, with minimal venting and flaring, must be preformed if the infrastructure is in placeto transport or market the gas. Over this past summer and fall the United States Environmental Protection Agency(EPA) proposed and adopted New Source Performance Standards (NSPS) for oil and gas wellsincluding those that are completed using hydraulic fracturing unless more stringent state or localregulations are in place. “The rule covers any gas well that is an onshore well drilled principallyfor production of natural gas.’’ (Federal Register August 16, 2012; 77 FR 49490) Thisregulation became effective October 15, 2012. The federal regulations will be more stringentthan the Revised Proposed Regulations as of January 1, 2015, except for the New York flowbackand workover regulations at 6 NYCRR Part 556.2(b). Until this date, under the federalregulations, the owners/operators have the option of using reduced emissions completions(RECs) or completion combustion devices (with a continuous ignition source), the same as isrequired in the Revised Proposed Regulations. The federal regulations encourage the use ofREC and complete combustion devices in the interim. For fractured and refractured gas wells,the federal rule generally requires owners/operators to use reduced emissions completions, alsoknown as ‘‘RECs’’ or ‘‘green completions,’’ to reduce VOC emissions from well completions.To achieve these VOC reductions, owners and/or operators may use RECs or completioncombustion devices, such as flaring, until January 1, 2015. As of January 1, 2015, owners and/oroperators must use RECs and a completion combustion device. The rule does not require RECswhere their use is not feasible, as specified in the rule. (See 40 CFR 60.5375; 77 FR 49543-44;Federal Register August 16, 2012 [Emphasis added]) Well completions subject to the new federal standards are gas well completions followinghydraulic fracturing and refracturing operations. These completions include those conducted atnewly drilled and fractured wells, as well as completions conducted following refracturingoperations at various times over the life of the well. As was explained in the proposal preamble, 17
  • 20. a completion operation associated with refracturing performed at a well is considered amodification under CAA section 111(a), because physical change occurs to the well resulting inemissions increases during the refracturing and completion operation. (Federal Register August16, 2012). The Revised Proposed Regulations (6 NYCRR Part 556.2(b)) prohibit the release of gasto the atmosphere during a flowback or workover for more than 48 hours. Further, §556.2(c)indicates that flaring is considered a release of gas and must then be limited to 48 hours or havean extension filed on a per well basis. Such a requirement is infeasible as most well cleanoutswill exceed a 48 hour period allowing for no clean up or flowback time. To file for extension foreach well will be labor intensive. Furthermore, these restrictions exceed those required byEPA’s NSPS’s Subpart OOOO and may be operationally impossible to meet. IOGA recommends that the Revised Proposed Regulations follow, or incorporate byreference, the federal regulations. The federal regulations allow for more flexibility regardingREC use before January 1, 2015 and are not dependent on gathering lines. Moreover, theRevised Proposed Regulations will be out of date if they are not amended before January 1, 2015to be as strict as the federal regulations. There are no time limits on the flowback operations forcompletion in the federal regulations since completion times will vary from well to well.Flowback, as defined by the federal government, ends with either well shut in or when the well isproducing continuously to the flow line or to a storage vessel for collection, whichever occursfirst. See 77 FR 49497. This change should be made to the Revised Proposed Regulations. Thetime limits imposed by the Revised Proposed Regulations cannot be met, are burdensome tooperators, and would require more paperwork from the operators and unnecessarily consumetime of state employees. Moreover, since paperwork burden was not discussed in the RRIS it isyet a further violation of SAPA. e. 560.2(b)(4) Best Management Practices The Revised Proposed Regulations include a clarification to the proposed definition of“best management practices” at Section 560.2(b)(4). This section now defines “bestmanagement practices” to “mean measure or methods used to prevent or minimize potentialimpacts on air quality, biological resources, land, and water quality caused by drilling,deepening, plugging back or converting or producing a well subject to this Part.” § 560.2(b)(4)(emphasis added). The changes noted in this definition broaden the duration of operationsencompassed in the definition, as well as the scope of impacts that must be addressed.Additionally, no changes were made to make this definition consistent with the definition of bestmanagement practices contained in 6 NYCRR § 750-1.2 as IOGA previously suggested. Instead,a separate definition of “best management practices” applies to SPDES permits for HVHFoperations. This is yet another example of differences between the well permitting regulationsand the SPDES regulations, which should be eliminated or explained. Practically speaking, however, this definition is nearly meaningless as the RevisedProposed Regulations only employ the term in two places, in reference to invasive speciesrequirements and in reference to restoration of native plant cover associated with partial site 18
  • 21. reclamation. See § 560.3(a)(16) & (17). Nearly all of the impacts cited in the definition of bestmanagement practices are irrelevant to these topics. The definition should, therefore, be deleted. f. 560.2(b)(7); 560.3(d)(1); 560.5(h) Chemical Disclosure Requirements The Revised Proposed Regulations include new requirements to disclose chemicalscontained in hydraulic fracturing fluid, including most notably a new requirement to disclose thecontents of the hydraulic fracturing fluid after fracturing is complete, a requirement to postchemical constituents used in an HVHF well on an online chemical disclosure registry, andbetter defined trade secret protections. IOGA fully supports the Department’s efforts to increase transparency of chemicalconstituents through new sections 560.2(b)(7), 560.3(d)(1) and 560.5(h)(4). Members of theservice company industry who may seek protections for the chemical constituents withinhydraulic fracturing fluid are generally comfortable with the Department’s approach in theRevised Proposed Regulations; however, these companies have a few concerns. Preliminarily,the Department’s approach and the Revised Proposed Regulations vastly overstate the potentialimpact from additives to hydraulic fracturing fluid by referencing material safety data sheets(“MSDS”) instead of analyzing the actual make up of the fluid as a percentage. The RevisedProposed Regulations should provide at least some acknowledgement that any chemicals used inhydraulic fracturing fluid are diluted by substantial measure. This dilution is critical inevaluating the impact a chemical constituent has on the environment in relation to the HVHFprocess. Referencing an MSDS does not provide an accurate view of the impacts, because themake-up of the fracturing fluid contains such a small percentage (in the range of 1 percent) ofadditives. It is commonplace for substances used every day by consumers as well as industries tohave a standard based in parts per million, or even parts per billion. For example, chlorine isadded to drinking water used every day by millions of people, but in much less quantity than thatdescribed on the MSDS sheet, which makes the MSDS sheet not relevant to the impactsexperienced by water consumers. If a ppm or ppb standard was used for HVHF, it would giveperspective to the actual risk presented, instead of reviewing the potential dangers of a materialin its concentrated form as listed on the MSDS sheet. Such an approach allows the Departmentand the public to review the properties and any hazards associated with these substances indiluted form consistent with how industry utilizes all of the additives in the field.8 IOGA commends the Department for acknowledging protections for trade secrets inproposed Part 560 that are important to various sectors of the HVHF industry. Such a balanceserves both New York State’s right to know with the protections normally afforded confidentialtrade secret information. The FOIL protections and procedures are generally consistent betweenthe disclosure required during the well permit application process and the post-completionreporting, however; Section 560.5(h) contains an inconsistency in the protections affordedcompared with the protections contained in Section 560.3(d). When applying for a well permit,Section 560.3(d) allows the applicant to seek trade secret protections for the identity of each8 Industry acknowledges that an MSDS is relevant for emergency responders relative to the chemicals that are storedon site prior to use in the high volume hydraulic fracturing process. 19
  • 22. additive proposed for use (see § 560.3(d)(1)(ii) & (2)), while the identity of each additive is notprotected in the post-completion disclosures. See § 560.5(h)(1)(viii) & (2). This should becorrected. It is also noted that the proposed SPDES regulations require disclosure of “arepresentative assay of the concentrations of chemical constituents present” to apply fortreatment or disposal of HVHF wastewater for POTWs, privately owned disposal facilities, andfor UIC wells. See § 750-3.12(c)(2), (d)(2) & (f)(3). Additionally, the POTW and privatelyowned disposal facilities must maintain “a list of chemical constituents used in HVHF, alongwith a representative assay of the concentrations of chemical constituents present, as well asother parameters that may be present.” See § 750-3.12(c)(5) & (d)(5); see also (c)(7). However,there are no specific trade secret protections notwithstanding that those constituents are protectedduring the well permit application and completion stages. While the general SPDES regulations9allow an applicant to request confidentiality pursuant to 6 NYCRR Part 616, this does notprovide sufficient protection, especially given the broad disclosure requirements unique to theHVHF program and the tailored trade secret protections the Department proposes in Part 560.IOGA recommends, therefore, that proposed Part 750-3 be modified to incorporate the tradesecret protections contained in Section 560.3(d). See Exhibit A for proposed revisions to Section750-3.12. In addition, Section 560.3(d)(1) should do more to encourage flexibility in disclosingcomponents of hydraulic fracturing fluid as part of a permit application, such as allowing broadpotential ingredient lists to be filed, with clarifications as to which of those ingredients disclosedwere actually utilized provided in the later disclosure included in Section 560.5(h)(4). This typeof flexibility would take into account the fact that, very often, permit applications will be draftedmany months (6 to 12 months) before the well is actually drilled and before site-specificgeologic conditions are identified through the drilling phase of well development, which maynecessitate changes in the frac fluid composition. By allowing a broader array of potentialchemicals to be used in the hydraulic fracturing stimulation process, the Department will give theindustry, including the service sector of the industry, the flexibility that they need to makeadjustments at the time of stimulation consistent with the statutory mandate to promote theultimate recovery of the resource. IOGA previously submitted comments regarding the requirement to complete a “green”frac fluid analysis for each well permit contained in Section 560.3(d)(1)(v) (which is nowsubdivision (d)(1)(viii)), as well as Sections 750-3.7(k)(2). The 2012 Comments recommendedconducting a biennial master chemical review with the HVHF service companies instead of apermit specific review. As the Department did not accept this recommendation, all of IOGA’sprevious remarks regarding the “green” hydraulic fracturing fluid analysis are repeated andincorporated by reference here. Although IOGA supports the effort to encourage improvementsto the hydraulic fracturing process that have resulted in a reduction in the number of chemicalsused and improvements in efficacy, this is yet another example of the failure of the Departmentto implement regulatory flexibility.9 See 6 NYCRR § 750-1.22. 20
  • 23. Additionally, while IOGA acknowledges that the documentation making up the greenfrac fluid analysis requirement, both in Part 560 and Part 750-3.7, is now limited to “existingdata and studies,” industry is unclear as to the meaning and application of the requirement todocument that additives “exhibit reduced aquatic toxicity.” See §§ 560.3(d)(1)(viii), 750-3.7(k)(2). As with chemicals used in any industrial process, there are many substances that havenot been fully tested on all species. Presumably, the new language limiting the analysis toexisting data and studies would not require any additional aquatic toxicity studies, but this shouldbe clarified. Further, Section 560.6(c)(23)’s prohibition on the use of hydraulic fracturing fluids otherthan those identified in the well permit application without Department approval should beclarified to provide flexibility, i.e. by allowing the Department to approve changes verbally, withwritten approval following if necessary. Such flexibility is necessary, as noted above, because ofchanging conditions in the field that can only be discovered during the drilling and hydraulicfracturing process. Alternatively, allowing applicants to identify a broad array of chemicals thatmay be used in the stimulation process would solve this problem by allowing flexibility. Finally, IOGA notes that there is an inconsistency in the Revised Proposed Regulations.An applicant for a well permit must identify the proposed hydraulic fracturing service companypursuant to Section 560.3(d)(1)(vii). Practically speaking, this company may change during thesix to twelve months between submitting an application, receiving approval, and ultimatelyhydraulically fracturing a well, and there is no opportunity to amend this information in laterdisclosures or on the Pre-Frac Checklist and Certification. IOGA recommends that any changesto the service company be identified on the Pre-Frac Checklist and Certification. g. 560.3(a)(16) Invasive Species The Revised Proposed Regulations now include a requirement for an applicant to produce“a list of invasive species found at the well site and description of the best management practiceswhich will be used for preventing the spread of these invasive species, including measures beingused to prevent new invasive species from being transported to the site.” See § 560.3(a)(16).This provision, which is unique to any Department industrial or commercial permitting program,presents a number of concerns. In 2003, the State took initial steps to address the growing problem of invasive speciesand statutorily established the Invasive Species Task Force (Chapter 324 of the Laws of NewYork 2003). The Task Force studied the problem of invasive species and providedrecommendations to the Governor and Legislature in the Final Report of the New York StateInvasive Species Task Force (Task Force 2005). Subsequently, the Legislature implemented thefirst Task Force recommendation by establishing the NYS Invasive Species Council (Council)and the Advisory Committee to the Council (Chapter 26, Laws of New York, 2008,Environmental Conservation Law, Article 9, Title 17). According the to the New York State Invasive Species Management Strategy which wasprepared for and submitted to the Department, it is recommended that the Invasive SpeciesCouncil should “undertake an initiative to integrate invasive species concerns in all relevant state 21
  • 24. and local planning and construction projects.” New York State Invasive Species ManagementStrategy, § 4.3, p. 4-8 (2011). The recommendations clearly state this approach should focus itslimited resources and energies on state and local projects, not private sector activities.Additionally, the Management Strategy does not recommend best management practices orprotocols for construction projects or other industrial activities. The provisions of proposedsection 560.3(a)(16) call for the creation of a management strategy by industry that is not beencontemplated, vetted or recommended by the state’s own Invasive Species Council, is not part ofits Invasive Species Management Strategy nor is it discussed as part of the processes outlined bystatute and subsequent tasks forces to address real and challenging invasive species issues. Furthermore, the construction and surface disturbance activities associated with HVHFdiffer in no way from the historic development of conventional well sites or with thedevelopment of typical commercial sites such as shopping centers. As the Invasive SpeciesCouncil conducted a rigorous review of potential industrial and commercial activities that couldserve as conduit for the spread of invasive species and failed to identify oil/gas well sitedevelopment as a primary activity of concern, there is no basis for this requirement.Accordingly, IOGA believes that the Department is placing undue burden on the HVHF industrywithout any basis in law or policy, and without merit. Accordingly, Section 560.3(a)(16) shouldbe removed from the Revised Proposed Regulations. In the event that the Department does not remove this provision, IOGA recommends thatthe Revised Proposed Regulations include flexibility to develop and implement an operatorspecific invasive plan. Prescribed requirements on analysis, mapping, identification, biologicalassessment, requirements to reintroduce native (yet now currently absent) species, andsignificant vehicle washing requirements, should not be advanced as prescriptive requirements. Additionally, failure include the potential cost associated with developing 1) bestmanagement practices for preventing the spread of invasive species and 2) measures forpreventing transport of new invasive species to the site, violates SAPA, as described above.Indeed, in the absence of any guidance on how to control invasive species at an HVHF or similarindustrial site, the time and cost to develop such a program may likely be considerable.Currently, no Department regulations require a permit applicant to address invasive species, withthe exception of the transport of firewood. In the absence of any analysis as to cost in the RRISand RRFA, however, IOGA cannot be certain how much this will cost and what unintendedconsequences will occur. It is, therefore, critical that the Department remove this requirement orprovide significant changes so that it is workable for industry. h. 560.3(a)(17); 750-3.2(35) Partial Reclamation IOGA previously commented that the definition of “partial reclamation” was different inthe proposed Part 560 regulations (§ 560.2(b)(18)) and the proposed Part 750-3 regulations (§750-3.2(b)(35)), and that the Part 750 definition should be deleted, with a reasonable timeframeimposed for partial reclamation imposed in the Part 560 regulations. The Department acceptednone of these suggestions and, although modifications were made to the Part 750 definition of“partial reclamation,” these modifications to not adequately address IOGA’s concerns. Asindustry has made clear to the Department on a number of occasions, including in its 2012 22
  • 25. Comments, there will be a variety of factors that will dictate the rate at which wells aredeveloped on a common well pad. Well pads typically are not reclaimed at all until the well padhas had all of the wells drilled, the wells are hydraulically fractured and the wells have beenturned into production. Where full well pad development is spread out over time, the sites arestabilized and seeded & mulched, where necessary, but not reclaimed. Requiring unnecessaryreclamation promotes unnecessary land disturbance, which will actually increase the potential forimpacts from stormwater runoff. i. 560.3(e) Application Procedures The Revised Proposed Regulations now contain a procedure for submission and reviewof HVHF well applications, which, as mentioned above, is useful to industry. However, IOGA isconcerned that proposed Section 560.3(e)(5) will create an opportunity for inefficiency in thepermitting process. By allowing comments on “local and site specific issues that have not beenaddressed in the Final Generic Environmental Impact Statement,” the Department may openitself up to continual comment challenging the sufficiency of the SGEIS and its applicability to aparticular site. Additionally, this Section should make clear that the Part 560.3 regulationsgovern the application process and do not create any new requirements that might be interpretedas being subject to the Uniform Procedures Act, including any process that would give rise to theright to an adjudicatory hearing. j. 560.5(c) Non-Routine Incident Reporting The Revised Proposed Regulations include modifications to Section 560.5(c) regardingreporting of non-routine incidents. IOGA notes that a “non-routine incident” is described bystatute at ECL Section 23-0305(8)(h), and the Revised Proposed Regulations do not contain aspecific definition outside of proposed Section 560.5(c). IOGA recommends that a definition beadded to the Part 560 definitions section. This terminology could be used in a definition of “non-routine” incident. As currently proposed, the term “non-routine incident” includes incidents ofwater complaints and other items which were not really intended as a non-routine incident in thestatute. IOGA has revised proposed Section 560.5(c) to be more consistent with the statutorydefinition in Exhibit A, attached. This terminology could be used in a definition of “non-routineincident.” k. 560.5(d) Sampling Parameters IOGA reviewed and compared the Revised Proposed Regulations to industry’s standardpre-drill baseline water parameters completed in the neighboring states (PA & OH). IOGA has anumber of resulting comments. Section 560.5(d)(1) was modified to include a number ofminimum parameters that must be sampled for all required water testing. Even with the additionof these minimum parameters, this regulation still seems to be open-ended. IOGA suggestshaving a defined list without the caveat of as “specified by the department.” The modificationsto Section 560.5(d)(1) added a requirement to test Gross Alpha and Gross Beta. However, thissampling is not required in neighboring states such as Pennsylvania. 23
  • 26. Section 560.5(d)(1) added a requirement to test the Static Water Level (when possible),which requires, for accurate results, invasive measures on the subject water well. Performingthese procedures will greatly increase the risk of exposure for the landowner’s well/water sourceand expose industry to potential claims from landowners concerning adverse impacts to theirwell by reason of the invasive procedure. Currently, industry’s program is only through “non-invasive” measures, which means industry does not open or measure anything within theconfines of the water well or source. This minimizes the risk of a landowner claiming that theirwell has been contaminated, or damages to their water pump, flow or other water well featureshave occurred. Using any invasive measure for testing has a very high risk. Industry generally onlyperforms invasive measures like this where required by lease water clause requirement, which doexist but generally are not a common part of a typical industry’s program. IOGA also notes thatapplying the “when possible” provision to the static water level testing could be difficult, as thisSection contains no discussion on how the Department will determine if testing is possible. Section 560.5(d)(1) also adds Volatile Organic Compounds (VOCs), and specificallyBTEX, to water sampling parameters. Industry in other states currently reports BTEX in theirbaseline analyses; however, IOGA questions the need to require sampling of other VOCs as partof the water sampling requirements. Other VOCs are not compounds commonly used in theHVHF industry, so no later comparison would be needed. Further, operations in Pennsylvaniado not require this sampling. Sampling BTEX helps industry understand if there are legacyissues commonly associated with any underground storage tank (UST) and other downstreamindustry activity present. IOGA would, therefore, recommend deleting the requirement tosample VOCs other than BTEX. In the event the Department does not delete this requirement, industry requires a fullunderstanding of which VOCs the Department will want tested, particularly to be able to assesscost, as there would be an added cost per sample. If VOC testing is required, IOGA recommendsadopting a list of the VOCs that must be tested to the Revised Proposed Regulations in either atable within the regulations or an addendum. Section 560.5(d)(2) now includes a requirement that “all significant deviation(s) from thebaseline compositions” be reported to the Department. This needs to be better clarified as towhat is a “significant deviation” and the “timing” for when a “determination” is made. No otherstate has a requirement like this. Only one state (CO) currently has a “post-drill” samplingrequirement, but it does not have any notification of variances with analytical results. Animportant consideration here is that there are common and normal “natural,” “seasonal” and“analytical” variances that are acceptable in environmental analysis. If this becomes arequirement, then thresholds for acceptance need to be clearly defined. Industry has additional questions regarding the sampling requirements in general. Willthe sampling data be kept confidential? “Ambient” sampling might identify an individual wellissue that might affect a landowner’s private property value or result in an enforcement action onthe well owner. Section 560.5(d)(3) talks about submission of test results to New York StateDepartment of Health. Will that lead to public disclosure? If so, that landowner should know 24
  • 27. that going into the sampling process. The Revised Proposed Regulations do not appear to takeinto account or require any assessment of the well construction itself as part of this samplingrequirement or identification of existing pollution sources that might already be impacting thewell. Finally, what specifically constitutes a “reasonable attempt” to (1) obtain a landowner’spermission; and (2) to sample and test a well?” Industry needs to understand the outreachrequirements that will be in effect. l. 560.5(f) Internet Posting of Waste Tracking Forms The Revised Proposed Regulations have added a requirement for the owner and operatorto post completed Drilling and Production Waste Tracking Forms, for any wastes “disposedinstead of recycled or reused,” on the owner or operator’s website within 30 days of receipt ofthe waste by the disposal company. See § 560.5(f). As the Revised Proposed Regulations requirea Waste Tracking Form to be prepared “for any used drilling mud, flowback water, productionbrine and drill cuttings removed from the well site,” each time these materials move off a site toa disposal facility (i.e., each truckload), a form would have to be prepared. Id. For a given site,this could result in hundreds of postings per well. Initially, IOGA questions the legal authority for this requirement, which appears to bebased upon “right to know” principles rather than environmental mitigation. Any suchrequirement should have a statutory foundation, which is totally lacking here. In addition, thisrequirement appears to be an arbitrary requirement that is being imposed upon the natural gasindustry without any similar requirements being imposed upon other industries, includingindustries that engage in the business of generating, transporting or disposing of wastes. Indeed,the Department rarely requires posting of information on the internet and in no other case isindustry required to post information on its own website for informational purposes only.Further, no federal environmental law imposes this requirement on the permit holder as a meansof disclosure; the federal agency generally maintains and posts information of this nature in someform on its own website. All of this points to the conclusion that the Department is proceedingin excess of its legal authority. IOGA, therefore, recommends that the requirement to post Waste Tracking Forms on theoperator’s website be removed, or in the alternative, that the Department be responsible forposting the information on the Department’s website, perhaps in a similar manner to its currentenvironmental remediation sites and spill incidents or oil and gas well databases. m. 560.7(c) Mineral Oil Containing Drill Cuttings The Revised Proposed Regulations added a prohibition on the onsite burial of drillcuttings contaminated with polymer-based mud containing mineral oil lubricant. See § 560.7(c).This prohibition is unnecessary, and discourages flexibility and advances in technology. Thereare new nano-materials and advancing technology to render these materials inert and safely burythem onsite. These technological advances, should be properly evaluated and permitted by theDepartment pursuant to a Beneficial Use Determination or similar approval. IOGA, therefore,recommends removing this restriction and including a provision to allow these materials to beburied if proper approvals are received. 25
  • 28. The wording used in Section 560.7(c) related to “disposal” (and seemingly excludingbeneficial reuse opportunities) should also be revised for consistency with Section 554.1(c)(4).See Exhibit A for proposed revisions to this section. n. 560.7(i), (k); 750-3.7(k)(6) Radioactivity Issues A number of revisions were included in the Revised Proposed Regulations relating toradioactivity. For example, Section 560.7(i) now includes a requirement to analyze flowbackwater, production brine, and the soils adjacent to these fluids for radioactivity. The oil and gas industry conducts periodic external radiation surveys to detect thepresence of NORM in equipment and wastes. The finding of external radiation levels in excessof standards, which differ somewhat from state to state, triggers requirements to handle wastesand decommissioned equipment according to regulations. Survey results are also used todetermine the need for specific NORM management procedures to ensure appropriate industrialhygiene practices. It is also a routine practice to survey soils during the decommissioning ofsites. A practical suggestion is to require periodic external radiation surveys and to establish atrigger level above which wastes and surplus equipment must be treated according to NORMmanagement procedures. As the Department is well aware, data collected by the Department itself hasdemonstrated that flowback and produced water do not present significant NORM issues in NewYork State. In April, 1999 study entitled “An Investigation of Naturally Occurring RadioactiveMaterials (NORM) in Oil and Gas Wells in New York State” concluded that the amount ofNORM in produced water is relatively insignificant and does not amount to any public healthhazard. Specifically, the study included 43 brine (salty waters brought to the surface as abyproduct of gas production), 10 scale, two sludge, two water and one soil sample. Only twobrine and one scale sample indicated radium isotope concentrations that were greater than 5.0picocuries per gram (pCi/g) total radium (pCi/ml for liquid samples such as brines). The brineradium results, 0.95 and 24 picocuries per milliliter (pCi/ml) for one sample, and 3.8 and 7.7pCi/ml for the other (Ra-226 and Ra-228 respectively), were found not to pose any threat topublic health or the environment. This conclusion is supported by an analysis of road disposal ofthe brine with the U.S. Department of Energy’s (USDOE) Residual Radioactive MaterialGuideline computer model (RESRAD). The scale result, 11 pCi/g for Ra-226 and 3.8 pCi/g forRa-228, was also found not to pose any threat to public health or the environment due to the lowamount of scale deposited in gas plant piping. Based upon this analytical data the Departmentreached the following conclusions: 1. Several types of oil and gas well field wastes were found to contain slightly concentrated NORM but not at concentrations sufficiently high to pose a threat to the public health or the environment. These wastes include gas well field brines and well casing scales, and oil well sludges and sediments. 26
  • 29. 2. Scale build-up on gas well casings is limited and though one scale sample revealed slightly elevated NORM concentrations, the scale is neither radioactive enough nor present in sufficient quantities to pose an environmental threat. 3. Concentrations of NORM in tank bottom scales and sludges and in brine pit sediments were not found to pose a significant threat to the public health or environment. If construction did occur on a former brine pit, construction activities and filling would likely decrease potential exposure well below the NYSDEC TAGM-4003 cleanup guideline of 10 mrem/yr. Tank bottom sludges would not be present at a high enough concentration and/or in sufficient quantities to generate a hazard to the public health or the environment. 4. Disposal of brines on roads as an aid to snow and ice control does not pose any significant radiological dose to the public due to NORM constituents. This issue was examined extensively using U.S. D.O.E. RESRAD modeling to assess potential doses to the public 5. Recycling of oil and gas well equipment should not pose a public health or environmental threat due to the small quantities of scale present and the low concentration of NORM found present in the scale. 6. This investigation demonstrates that the concentrations of NORM in oil field wastes in New York State were at least two to three orders of magnitude lower than those found in the North Sea. The NORM concentrations found in New York State well field wastes do not pose any significant occupational or non- occupational radiological exposure to workers or residents. Against this backdrop, any effort to require extensive testing of water, soil or equipmentis without a scientific or factual basis and is based upon speculation that these media may haveNORM concentrations beyond those that are been documented in the field. Additionally, theinclusion of such excessive sampling requirements is arbitrary and capricious. The RevisedProposed Regulations, and the record, provide no scientific or other basis for the samplingproposed in Section 560.7(i) and (k). In light of the Department’s prior study of these veryissues, with the above-cited conclusions, it can only be described as arbitrary and capricious forthe Revised Proposed Regulations to ignore the Department’s own previous, extensive studiesand require significant, unnecessary sampling without any justification for contradicting thefindings of those studies. IOGA therefore, recommends, at a minimum, that further clarificationis needed as to how often the Department expects the flowback water or production brine to besampled & tested for NORM. The Revised Proposed Regulations currently suggest that anyvolume of flowback, or produced fluids that are being taken off site requires sampling andtesting for NORM. This is clearly excessive and must be corrected. Specifically, the Revised Proposed Regulations require “[f]lowback water . . . must betested for naturally occurring radioactive material prior to removal from the site,” and a similarrequirement for fluids recovered during production. See § 560.7(i). The term “tested for”included in 560.7(i) in relation to testing of naturally occurring radioactive materials (“NORM”) 27
  • 30. is vague as it could include full quantification of the concentrations of various radionuclides orjust screening for the presence of same. This should be clarified. If this section intends torequire sampling for every well, it seems to be a bit excessive. Based on industry’s experience inthis area, it does not seem very likely that there will be enough NORM in the water phase to bedetectable with instruments that can be used on site; therefore, a lab analysis would most likelybe required. Furthermore, industry expects that the NORM concentrations in the initial flowbackwill be very low as during these stages it is mainly injected water that is produced. Additionally, if flowback water or production brine is coming from the same formation,the quality of the material isn’t going to change dramatically, especially if it’s coming from thesame well pad or a well pad in close proximity geographically. For all of these reasons, havingto sample every load or well seems excessive, and the Department should specify the samplingrequirements in a practical manner or allow operators to develop a sampling plan as part of theirFluid Disposal Plan required pursuant to proposed Section 554.1(c). IOGA suggests onecomposite sampling over a 24 hr period and testing one time per well pad prior to those liquidsbeing taken to disposal, or that a periodic analysis of water (e.g. quarterly) occur, and only if thewater is to go to a POTW. If the water is to be disposed of by injection or reused, then theNORM content is irrelevant. Industry is unaware of any requirement to analyze NORMconcentrations in produced water disposed of by injection anywhere else. The most efficientmanner to address with this issue is, as is noted above, to review the needs of a specific site andits geology and include necessary sampling in the Fluid Disposal Plan required pursuant toproposed Section 554.1(c). Regarding the requirement to analyze production brine and flowback water for Ra226and Ra228, industry reports that these parameters are commonly evaluated for drinking water(DW) sources. Based on industry’s prior experience, for high salt/barium concentrated sampleslike flowback water, the selection of analytical methods is critical. The standard DW method forthese (e.g. – EPA 903/904) are very problematic to matrix interferences. The method requiresthe sample to be spread on a dish (called planchete) and higher salts will cause the material to“crack” causing errors in the emission counting process. Additionally, these methods commonlyuse barium as the surrogate of choice to show the accuracy and recovery of the method in acontrolled environment. Since barite is used in some drilling fluids for a weighting material, thisinterferes with a possible biased high result thereby limiting the usefulness of the data.Therefore, use of Gamma Spectroscopy (Gamma Spec) is preferred when the analysis of highsalts/barium potentially exists. The problem with Gamma Spec is that one has to make certainassumptions of equilibrium since the isotopes of Radium (226 and 228) are alpha and betaemitters and not a gamma emitter. Normally this is done through the inference/assumption ofBismuth 214 (Bi214) in equilibrium of Radium 228 in after a 21-day in growth process. Bi214 isa gamma emitter and can be measured through gamma spec. This method is more resilient to thematrix complications of high salts/barium concentrations; however, the detection limit isnormally not to the 1 pCi/L standard EPA methods (903/904) use. Commonly, the wastewaterlimit of 30 pCi/L is often used for these samples and that limit is achievable with gamma spec. Accordingly, it is evident that this sampling requirement could cause confusion if asampling method is not carefully considered in advance of analysis. Further, significant delayscould result. Radiochemistry is very complex and interpretation of the data is a very detailed 28
  • 31. process. The analysis alone takes 21 days to complete accurately with a common turnaroundtime of 28-30 days from an analytical lab. Given that all flowback water and production brinemust be removed from a well site within 45 days after completion of drilling and simulation, thislengthy turnaround time could jeopardize an owner or operator’s ability to properly managewater within this timeframe. See § 560.7(a). Also, for the duration of sampling review andanalysis, additional storage on site may be required, which would cause additional surfacedisturbance. IOGA also notes that commonly, the costs per sample for a suite of NORM testingwould approximately be $300-$500 per sample. This would not include sampling costs(consultant if collected third-party). Therefore, a significant cost burden is imposed by thissampling requirement. IOGA also recommends that the requirement for testing “other analytes as directed by thedepartment” should be eliminated from the Revised Proposed Regulations or specified,particularly in light of the potential significant cost and delay in turnaround time on receiving theresults. For the testing of soils and other solids, the sampling issues are even more complex,which will result in further costs and delays. Again, this is an issue that does not have a factualor scientific basis to support the proposal. As the Department is well aware, New York alreadyhas significant experience with the handling and disposal of solids from Marcellus wells inPennsylvania. Several landfills are already handling these materials and at least one landfill, theChemung County Landfill, was required to develop and implement a screening procedure toscreen for NORM concentrations in drill cuttings emanating from Marcellus shale wells inPennsylvania that are being disposed of at that landfill. That landfill utilizes radiation detectors atthe scale which weighs all wastes coming into the landfill. The detector is regularly calibratedand detection levels have been set under Department supervision. Notably, even though thatsystem has been operational for several years, there have been no loads of drill cuttings that havedetected concentrations of NORM at the detection levels specified by the Department. As an alternative to a prescriptive regulation requiring testing, IOGA recommends thatthe Department allow the industry to apply best management practices for the assessment ofpotential NORM accumulation in soils and equipment. Integral to these management practices isthe use of commercially available direct reading hand-held radiation detection instrumentationalong with risk-based action criteria. Sample equipment is as follows:ANALOG Ludlum model 3-97 NORM meter with internal and external probesThis is a very robust NORM meter used in industry. Meter employs 2 probes with dual meter scale. • External pancake probe that detects alpha, beta and gamma radiation and is used to frisk personnel for NORM contamination and measure contamination on equipment surfaces. • Internal scintillation probe is built into the base of meter. This probe detects penetrating gamma 29
  • 32. radiation and is used to identify or flag potentially NORM contaminated process equipment(even when in operation) This probe can also be used to measure gamma dose rates in occupiedareas.This single meter is a very cost effective unit as compared to purchasing 2 separate meters, eachdedicated to a scintillation & pancake probe. Note this meter is not intrinsically safe10.ANALOG Ludlum model 3IS meter connected to 44-2 scintillation probe This meter and probe gives the user a robust and "Intrinsically Safe" instrument that detects penetrating gamma radiation and is used to identify & flag potentially NORM contaminated process equipment (even when in operation). This probe can also be used to measure gamma dose rates in occupied areas. Such management practices are in use in many oil / gas producing states and countriesand have been shown to be protective of the both worker and public health and effective inscreening equipment / solid wastes for proper disposal / disposition. Typical triggers strive toderive soil and equipment NORM criteria that is protective of public health in accordance withTitle 10, Part 20 of the Code of Federal Regulations applying a public exposure criteria of100mREM/yr. The evaluation of worker exposures should continue to follow existing FederalDepartment of Labor Regulations. These management practices and measurement practiceswould also be effective for the evaluation of NORM accumulation at the well head and otherequipment and would be applicable to detecting NORM affected equipment that requireadditional management practices as well as equipment that can be released for recycle / reuseand or disposal. Such protocols would limit the need for confirmation laboratory analysis toavoid delays that could impact operations. IOGA is willing to work with the Department to define the basis of the requiredmanagement practices that is aligned with existing federal regulations and recommendation ofthe NRCP that would be both protective of human health and cost effective. Each operatorshould be allowed to specify the screening methodology, screening levels and required testing ifa screening level is exceeded as part of their Fluid and/or Cuttings Disposal Plan requiredpursuant to proposed Section 554.1(c)(1) and (4), as appropriate. This would be similar to thescreening methodology that was approved for use at the Chemung County Landfill, which, asnoted above, has been operational for several years.10 A device that is not intrinsically safe is a device that should not be used in a confined space atmosphere. 30
  • 33. PROPOSED PART 750-3 IOGA commends the Department for its efforts to harmonize the water qualityregulations with the well permitting regulations. However, as noted above, there are stilldifferences between definitions and there are requirements that are imposed in the water qualityregulations that are not required for well permitting. Every effort should be made to harmonizethe two regulatory programs and explain any differences that are necessary. In addition, the Department has not responded to IOGA’s comments in the 2012Comments to simplify the water quality regulations. As currently drafted, this program isdifficult to follow as an HVHF SPDES Permit can either be an individual permit or a generalpermit. Section 750 – 3.2(b)(26). Although we recognize that there may be some draftingefficiencies in allowing the term to be used interchangeably for either an individual permit or ageneral permit, it creates regulatory confusion. More importantly, once again, the entire program seems to be drafted with the intent ofdisqualifying operators from obtaining general permits and requiring individual SPDES permits.For example, pursuant to the proposed Section 750-3.11(d), there are number of disqualifiers thatdisqualify eligibility for a general permit, including distance-based limitations from intermittentstreams, wetlands, storm drains and the like. Likewise, pursuant to paragraph (f) of that sameregulatory provision, inherently vague standards, such as adverse effect to threatened species orits critical habitat or adverse effect to a property listed or eligible for listing on the NationalRegister of Historic Places can serve as a basis to disqualify an operator from obtaining a generalpermit. As was explained in the 2012 Comments, activities at well sites, including those that usehigh-volume hydraulic fracturing for stimulation, are no different from the stormwater standpointthan many other industrial commercial sites which operate under general permits in New YorkState. Moreover, they are no different from the thousands of well sites that have been constructedin New York under the regulatory auspices of the Division of Minerals or with a general permit,without any documented problem resulting from discharges from the oil and gas industry.11 Theentire focus of the regulatory scheme should be changed to presume the general permits will beapplicable and only require individual permits in very unique circumstances. Lastly, the Department has failed to comprehend the 2012 Comments, which pointed outthat a number of operators design and operate well pads in a manner such that there are nodischarges during active phases of drilling and completion. Those operators collect allstormwater and utilize that stormwater as part of water that is used in the drilling or completionprocess. In other contexts, the Department has recognized that if the site is operated withoutdischarges of stormwater, that no individual SPDES permit or general permit is required. TheRevised Proposed Regulations should include an exemption for sites that do not discharge stormwater.11 To be distinguished are the old, orphaned and abandoned sites which were created without regulatory standardsand present another set of regulatory challenges that are not relevant to modern day oil and gas drilling. 31
  • 34. o. 750-3.7(o) Groundwater Monitoring Requirement The Revised Proposed Regulations now include a provision authorizing the Departmentto require groundwater monitoring in relation to either an individual or general SPDES Permit.See § 750-3.6(o), 3.7(o). There is no indication as to when or under what criteria the Departmentwill require groundwater monitoring. IOGA questions this provision, because it lacks anydefinition concerning the number of groundwater monitoring wells that will be required, thefrequency of sampling, the sampling parameters or the amount of baseline data that must becollected prior to drilling. In rare circumstances, groundwater monitoring wells may serve toanalyze groundwater conditions after drilling, but the Department should proceed cautiously withgroundwater monitoring as a condition to drilling. First, it takes months to establish baselinedata from groundwater monitoring. Will this delay drilling? In addition, groundwatermonitoring wells could serve as a mechanism to promote methane migration if the wells are notcompleted properly. Groundwater monitoring wells are not constructed with the precautions thatare required in New York State for casing and cementing oil and gas producing wells. Sincemethane is known to exist in the shallow horizons in a number of places across the SouthernTier, this requirement could exacerbate those conditions. Finally, there was no mention of thecosts associated with the imposition of this requirement under the RRIS. As such, thisrequirement should be deleted from the regulations. Again, since this requirement has not been explained, it is not surprising that the cost ofthis requirement has not been evaluated. This is yet, again, a further violation of SAPA. p. 750-3.11(f)(4) SPDES General Permit Prohibitions IOGA previously requested deletion of the prohibition from use of the HVHF SPDESgeneral permit where “HVHF operations [ ] adversely affect a property that is listed or eligiblefor listing on the State or National Register of Historic Places” absent agreements with relevantgovernment agencies to mitigate effects. § 750-3.11(f)(4). With the addition of yet moreproposed multiple, independent and redundant safeguards to preclude contamination fromleaving the site, IOGA repeats its comment that this prohibition should be deleted, as should theprohibition on use of the HVHF General Permit for HVHF operations that adversely affect alisted or proposed to be listed endangered or threatened species or its critical habitat. § 750-3.11(f)(3). Additionally, these prohibitions ignore the temporal nature of HVHF operations. Evenincluding time to construct the well pad, the HVHF process occurs for only a matter of a fewmonths at a given site, after which the impacts from the well producing natural gas are virtuallynon-existent. The industry has a long history of working with officials at the New York StateOffice of Parks, Recreation and Historic Preservation siting well pads in a manner to avoidadverse impacts to historic resources. That system should remain in place without creating yetanother potential obstacle to drilling in New York State. 32
  • 35. q. 750-3.11(h)(v) Fluid Disposal Plan Requirements Proposed Part 750-3 within the Revised Proposed Regulations contains a requirement toprepare a Fluid Disposal Plan as part of an application for either an individual HVHF SPDESpermit, or for use of the HVHF General Permit. See §§ 750-3.6(d), 3.11(h)(v). In addition to theredundancy of this provision, as Section 554.1(c) requires preparation of such a plan, the RevisedProposed Regulations also contain an inconsistency. While Section 554.1(c) states that acontingency plan “may also be required at the department’s discretion,” Part 750-3 requires that anapplicant submit a contingency plan. §§ 750-3.6(d), 3.11(h)(v). This discrepancy should beresolved, with the fluid disposal plan being submitted as part of the permitting process and not duringthe SPDES process and the requirement for submission of a contingency plan being left to theDepartment’s discretion. 33
  • 36. EXHIBIT A
  • 37. EXHIBIT A Proposed Modifications to the Revised Proposed Regulations1 PROPOSED REVISIONS TO PARTS 553-5606 NYCRR Part 553, Well Spacing(Statutory authority: Conservation Law, §§ 70, 73, 75, 77 , Environmental Conservation Law §§23-0501, 23-0503 )Subdivisions (a) through (c) of Section 553.1 are re-lettered subdivision (d) through (f), andnew subdivisions (a) through (c) are added to read:(a) Statewide spacing means spacing units for gas or oil wells that are within ten percent of thefollowing sizes, as applicable, unless another percentage is specifically stated:(1) For Medina gas pools at any depth, 40 acres with the wellbore within the target formation noless than 460 feet from any unit boundary, plus, if applicable, the number of additional acresnecessary and sufficient to ensure that any horizontal wellbore within the target formation is notless than 460 feet from any unit boundary;(2) For Onondaga reef or Oriskany gas pools at any depth, 160 acres with the wellbore within thetarget formation no less than 660 feet from any unit boundary, plus, if applicable, the number ofadditional acres necessary and sufficient to ensure that any horizontal wellbore within the targetformation is not less than 660 feet from any unit boundary;(3) For fault-bounded Trenton and/or Black River hydrothermal dolomite gas pools where themajority of the pool is between 4,000 and 8,000 feet deep, 320 acres with the proposedproductive section of the wellbore within the target formation no less than one-half mile fromany other well in another unit in the same pool and no less than 1,000 feet from any unitboundary that is not defined by a field-bounding fault but in no event less than 660 feet from anyunit boundary;1 These proposed revisions are not intended to be an exhaustive list of recommendations. IOGA includes theseexcerpts to illustrate some of the more important revisions that, in IOGA’s view, are necessary to make the RevisedProposed Regulations workable, while also reiterating all of its remarks contained in the formal comments submittedherewith. 1
  • 38. (4) For fault-bounded Trenton and/or Black River hydrothermal dolomite gas pools where themajority of the pool is below 8,000 feet, within five percent of 640 acres with the proposedproductive section of the wellbore within the target formation no less than one mile from anyother well in another unit in the same pool and no less than 1,500 feet from any unit boundarythat is not defined by a field-bounding fault but in no event less than 660 feet from any unitboundary;(5) For shale gas pools at any depth, for a vertical well outside any existing spacing unit for thesame formation, 40 acres with the wellbore within the target formation no less than 460 feet fromany unit boundary;(6) For shale gas pools at any depth, for a horizontal well outside any existing spacing unit forthe same formation and with a written commitment from the well operator to drill infill wellspursuant to subdivision (c) of this section, notwithstanding the ten percent tolerance , up to 640acres with the initial horizontal wellbore or wellbores within the target formation approximatelycentered in the spacing unit and no wellbore in the target formation less than 330 feet from anyunit boundary;(7) For shale gas pools at any depth, for a horizontal well outside any existing spacing unit forthe same formation and in the absence of a written commitment from the well operator to drillinfill wells pursuant to subdivision (c) of this section, 40 acres with the wellbore within the targetformation no less than 330 feet from any unit boundary plus the number of additional acresnecessary and sufficient to ensure that the wellbore within the target formation is not less than330 feet from any unit boundary;(8) For all other gas pools where the majority of the pool is above the depth of 4,000 feet, 80acres with the wellbore within the target formation no less than 460 feet from any unit boundary,plus, if applicable, the number of additional acres necessary and sufficient to ensure that anyhorizontal wellbore within the target formation is not less than 460 feet from any unit boundary;(9) For all other gas pools where the majority of the pool is 4,000 to 6,000 feet deep, 160 acreswith the wellbore within the target formation no less than 660 feet from any unit boundary, plus,if applicable, the number of additional acres necessary and sufficient to ensure that anyhorizontal wellbore within the target formation is not less than 660 feet from any unit boundary;(10) For all other gas pools where the majority of the pool is 6,000 to 8,000 feet deep, 320 acreswith the wellbore within the target formation no less than 1,000 feet from any unit boundary, 2
  • 39. plus, if applicable, the number of additional acres necessary and sufficient to ensure that anyhorizontal wellbore within the target formation is not less than 1,000 feet from any unitboundary;(11) For all other gas pools where the majority of the pool is below 8,000 feet, within fivepercent of 640 acres with the wellbore within the target formation no less than 1,500 feet fromany unit boundary, plus, if applicable, the number of additional acres necessary and sufficient toensure that any horizontal wellbore within the target formation is not less than 1,500 feet fromany unit boundary;(12) For oil pools in the Bass Island, Trenton, Black River, Onondaga reef or other oil-bearingreefs at any depth, 40 acres with the wellbore within the target formation no less than 460 feetfrom any unit boundary, plus, if applicable, the number of additional acres necessary andsufficient to ensure that any horizontal wellbore within the target formation is not less than 460feet from any unit boundary; and(13) For all other oil pools at any depth, the wellbore within the target formation shall be no lessthan 165 feet from any lease boundary.(b) Wells completed under a well permit issued pursuant to paragraph (12) or (13) of subdivision(a) of this section that do not produce oil may not commence production of natural gas prior tomodification of the spacing unit pursuant to section 553.3 of this Part.(c) The department may issue permits to drill infill wells on a reasonably uniform pattern withinthe spacing unit after an integration order has been issued, if required, and only if it determinesthat drilling infill wells is necessary to satisfy the policy objectives of Part 550 of this Title. Thedistances from the unit boundaries set forth in this section shall apply to any infill wells. Forpurposes of this section, new lateral wellbores drilled from the original wellbore in the unit arenot considered infill wells if they are drilled prior to the first product sales from the originalsurface location. In a spacing unit established pursuant to paragraph (6) of subdivision (a) of thissection, infill wells shall be deemed necessary.Newly re-lettered subdivisions (d) and (e) are amended to read:(d) Except as provided in subdivisions [(b) and (c)](a) and (e) of this section and absent adepartment order establishing spacing units, a well drilled, deepened, plugged back, or convertedfor the production of oil and gas cannot be located less than 660 feet from any boundary line of 3
  • 40. the lease, integrated leases or unit and cannot be closer than 1,320 feet from any other oil and gaswell in the same pool.(e) Absent a department order establishing spacing units, a well which is on a lease, integratedleases, or unit having as one of its boundary lines the New York[] - Pennsylvania border may notbe drilled, deepened, plugged back, or converted for the production of oil and gas within 330 feetof that border.A new subdivision (g) is added to Section 553.1 to read:(g) Gas wells drilled, deepened, plugged back or converted in natural gas fields or pools, whichwere discovered, developed and operated prior to January 1, 1995 and which are not beingextended, are not subject to the provisions of subdivision (a) of this section.Section 553.2 is unchanged.Subdivisions (d) and (e) of Section 553.3 are repealed, subdivisions (a) though (c) are re-lettered subdivisions (c) through (e), and new subdivisions (a) and (b) are added to read:(a) The department shall issue a permit to drill, deepen, plug back or convert a well, if allapplicable requirements are met and the proposed spacing unit conforms to statewide spacingprovided in section 553.1 of this Part.(b) For wells which meet statewide spacing requirements, issuance of a permit to drill, deepen,plug back or convert a well shall establish the spacing unit for the permitted well.Newly re-lettered subdivisions (c) through (e) of Section 553.3 are amended to read:(c) [To] For wells exempt from statewide spacing requirements or wells that do not meet suchstatewide spacing requirements as provided in section 553.1 of this Part, an order establishingwell spacing may be issued by the department to promote effective development, use orconservation of the natural resources of oil and gas[, an order establishing well spacing may bepromulgated by the department]. The Department must find that such proposed spacing unitsatisfies the policy objectives established by ECL 23-0301. (1) To make this determination, the Department must issue a notice of intent to issue apermit and spacing order, which shall be published in a form and manner prescribed by thedepartment. The notice of intent to issue a permit and spacing order must include anyadjustment of allowables as set forth in subdivision (2) herein. 4
  • 41. (2)For proposed spacing units that are not of a uniform size and shape with other spacingunits for the field or pool, the Department may make such adjustment of the allowableproduction from the well to be drilled thereon so that the owners in the spacing unit receive theirjust and equitable shares of the production from the pool. (3)Any comments regarding a notice of intent to issue a permit and spacing order must bereceived by the department within thirty days of the date of the notice of intent and must meetthe substantive and significant requirement for establishing an issue for adjudication. (4) Any challenge to a spacing unit must contain: (i) a description and a map of the proposed alternative spacing unit; (ii) a technical justification of the proposed alternative spacing unit, which shall include adescription and analysis of the scientific data intended by the owner to support its proposedspacing unit configuration; and (iii) the name, address and experience of any expert witness proposed to support theproposed alternative spacing unit configuration. (3) The department may request the owner challenging the spacing unit to present itsscientific data to the department. (4) Based on the application for a spacing order and any comments received on the noticeof intent to issue a permit and spacing order, the department shall determine whether substantiveand significant issues have been raised. If the department receives no comments or if thecomments do not raise a substantive and significant issue, the department shall issue the permitand the final spacing order. If the department determines that substantive and significant issueshave been raised in a timely manner, the department shall schedule an adjudicatory hearing.(d) Prior to [promulgation] issuance of any spacing order, a public hearing on the matter will beconducted by the department acting either on its own [motion] initiative or upon receipt of anapplication therefore from any interested owner or operator.(e)Any application for a spacing order shall be made in writing and should include anyinformation the applying owner or operator deems relevant to the following factors which thedepartment will consider in deciding upon a spacing order:(1) the lease and unit boundaries of the lands underlaid by the pool; 5
  • 42. (2) the plan of well spacing currently being employed and that proposed for the pool;(3) the depth at which production from said pool has been found;(4) the nature and character of the stratum containing the pool and the fluids contained therein;(5) an estimate of the maximum area which may be drained efficiently and economically by onewell; and(6) any other available information pertaining to said pool which may be of probative value tothe department in determining the proper spacing therefore, with due and relative allowance forprotection of correlative rights and prevention of waste.A new subdivision (f) is added to Section 553.3 to read:(f) The Department may, upon its own initiative or at the request of the owner or operator, upongood cause shown, modify an order establishing a spacing unit or a spacing unit which conformsto statewide spacing without conducting a hearing if a finding has been made that no facts are indispute after all affected persons have been provided a reasonable opportunity to comment. Forspacing units established pursuant to paragraph (6) of subdivision (a) of section 553.1 of thisPart, failure to drill infill wells pursuant to subdivision (c) of section 553.1 of this Part shallconstitute good cause for the department to initiate a modification of the spacing unit.Section 553.4 is amended to read:553.4 [Exceptions] Variances[Where in its opinion there exists good and sufficient reason to permit an exception to the wellspacing provision of sections 553.1, 553.2 and 553.3 of this Part, the] (a) The department maypermit reasonable well location [exceptions which will] variances to the well spacing provisionsof subdivisions (a) (d) and (e) of section 553.1 and sections 553.2 and 553.3 of this Part, in orderto protect correlative rights and prevent waste. Any application for such [an exception] avariance shall be made [in writing in triplicate] on a form prescribed by the department, as aseparate attachment to the application for permit as outlined in section 552.1 of this Title andshall set forth in ample detail the reason or reasons for such [exception] variance request. Uponreceipt of this [exception] variance request, the department shall [promptly schedule a publichearing to facilitate a decision on the application] publish a notice of intent to issue a permit andspacing variance in the environmental notice bulletin and provide for a public comment period ofat least 15 days . The owner or operator shall also, in advance of the 15-day public comment 6
  • 43. period required by this subdivision, provide notice by publication of the request for a variance, ina manner prescribed by the department. When a location [exception] variance is granted, thedepartment may adjust the production from such well or take such other action as it may deemnecessary for the protection of correlative rights or to prevent waste.(b) Following the public comment period required by subdivision (a) of this section, thedepartment shall determine whether substantive and significant issues have been raised. If thedepartment receives no comments or if the comments do not raise a substantive and significantissue, the department may issue the variance. If the department determines that substantive andsignificant issues have been raised in a timely manner, the department shall schedule a hearing tofacilitate a decision on the variance application. 7
  • 44. Part 554, Drilling Practices and ReportsSubdivisions (a) and (b) of Section 554.1 are unchanged.Paragraph (1) of subdivision (c) of Section 554.1 is amended and a new paragraph (4) isadded to read:(1) Prior to the issuance of a [well-drilling] permit [for any operation in which the probabilityexists that brine, salt water or other polluting fluids will be produced or obtained during drillingoperations in sufficient quantities to be deleterious to the surrounding environment,] to drill,deepen, plug back or convert a well, or for any operation reported to the department on theSundry Well Notice and Report form that requires pre-approval from the department the owneror operator must submit and receive approval for a plan for the environmentally safe and properultimate disposition and/or disposal of [such] used drilling mud, flowback water and productionbrine . [For purposes of this subdivision, drilling muds are not considered to be polluting fluids.]The owner or operator must state that the in its plan is designed to that it will maximize the reuseand/or recycling of used drilling mud, flowback water and production brine to the best,economically-maximum feasible extent feasible. Before [requesting] approving a plan fordisposition and/or disposal of such fluids, the department will take into consideration the knowngeology of the area, the sensitivity of the surrounding environment to [the polluting] such fluids ,and the history of any other drilling operations in the area. Depending on the method or methodsof disposal chosen by the [applicant] owner or operator , a permit for discharge and/or disposalmay be required by the department in addition to the [well-drilling] permit to drill, deepen, plugback or convert a well . An [applicant] owner or operator may also be required at thedepartments discretion to submit an acceptable contingency plan, the use of which shall berequired if the primary plan is unsafe or impracticable at the time of disposition or disposal.(4) [Prior] If applicable, prior to the issuance of a permit to drill, deepen, plug back or convert awell or for any operation noticed to the department on the Sundry Well Notice and Report formthat requires pre-approval from the department, the owner or operator must submit and receiveapproval of a plan for the environmentally safe and proper disposal or beneficial re-use of drillcuttings on-site or off-site. 8
  • 45. Proposed Variance Provision to be Added to Part 560.3:A new paragraph (g) is added to Section 560.3 to read:(g) Variances. (1) Unless otherwise precluded by law, the department may, upon written application from any person who is subject to this Part, grant a variance from one or more specific provisions of this Part under the conditions set forth in this subdivision. (2) Every application for a variance must: (i) identify the specific provisions of this Part from which a variance is sought; (ii) demonstrate that compliance with the identified provisions would, on the basis of conditions unique to the persons particular situation, impose an unreasonable economic, technological or safety burden on the person or the public; and (iii) demonstrate that the proposed activity will have no significant adverse impact on the public health, safety or welfare, the environment or natural resources and will be consistent with the provisions of the ECL and the performance expected from application of this Part. (3) In granting any variance under this subdivision, the department may impose specific conditions necessary to assure that the subject activity will have no significant adverse impact on the public health, safety or welfare, the environment or natural resources. 9
  • 46. 560.4 Setbacks(a) No well pad or portion of a well pad may be located:(1) within 500 feet from a residential water well, domestic supply spring or water well or springused as a water supply for livestock or crops;(2) within 500 feet from an inhabited dwelling or place of assembly;(3) within a primary aquifer and a 500-foot buffer from the boundary of a primary aquifer;(4) within a 100-year floodplain; and(5) within 2,000 feet of any public water supply (municipal or otherwise, or the boundaries ofany public water supply reservoir, natural lake or man-made impoundment (except engineeredimpoundments constructed for fresh water storage associated with fracturing operations) .(b)All distances noted above are measured from the closest edge of the well pad.(c)The department may permit reasonable well location variances to the setback requirements insections 560.4(a) (1), 560.4(a) (2) and 750-3.3 (a)(61) of this Title. Any such variance to thesetback requirement of section 560.4(a) (1) or Section 750-3.3(a)(61) of this Title shall besubject to the written consent of the landowner or landowners whose residential water well,domestic supply spring, or water well or spring used for livestock or crops is located within 500feet of the proposed well pad. Any variance to the setback requirement of section 560.4(a) (2) ofthis Part shall be subject to the written consent of the landowner of the inhabited dwelling orplace of assembly within 500 feet of a well pad, and, in the case of an inhabited dwelling, thewritten consent of all tenant(s), if any. The applicant for a variance must show that there are noreasonable allowable alternative locations within the spacing unit where the well pad could besited consistent with the setback requirements of this section and the well spacing requirementsof Part 553 of this Title. In approving a variance, the department shall maximize the separationdistance by granting the minimum variance that it deems necessary and adequate. Thedepartment shall have the authority to impose such reasonable and necessary conditions tominimize any adverse impact on the water supplies, inhabited dwellings or places of assemblywithin 500 feet of the well pad. 10
  • 47. 560.5(c) Testing, Recordkeeping and Reporting Requirements(c) Any non-routine incident of potential environmental and/or public safety significance duringaccess road and well pad construction, well drilling and stimulation, well production, and wellplugging that may affect the health, safety, welfare, or property of any person must be verballyreported to the department within two four hours of the incidents known occurrence ordiscovery, with a written report detailing the non-routine incident to follow within twenty-fourhours of the incidents known occurrence or discovery. Non-routine incidents of potentialenvironmental and/or public safety significance may include, but are not limited to,: casing, drillpipe or hydraulic fracturing equipment failures;, cement failures, ; fishing jobs, ; fires;, seepages,; blowouts,; surface chemical spills,; observed leaks in surface equipment, observed pit linerfailure, surface effects at previously plugged or other wells, observed effects at water wells or atthe surface, complaints of water well contamination, anomalous pressure and/or flow conditionsindicated or occurring during hydraulic fracturing operations and other incidents during drilling,completion, producing, plugging or replugging operations that may affect the health, safety,welfare or property of any person,., or other potentially polluting non-routine incident or incidentthat may affect the health, safety, welfare, or property of any person. Provided the environmentand public safety would not be further endangered, The first event in a series of related eventsshall be considered the reportable event. Aany action and/or condition known or suspected ofcausing and/or contributing to a non-routine incident must cease immediately upon knownoccurrence or discovery of the incident, and appropriate initial remedial actions commenced. Therequired written non-routine incident report noted above must provide details of the incident andinclude, as necessary, a proposed remedial plan for department review and approval. In the caseof suspended hydraulic fracturing pumping operations and non-routine incident reporting ofsuch, the owner or operator must receive department approval prior to recommencing hydraulicfracturing activities in the same well. The department may issue an order to take appropriateactions consistent with this subdivision, including an order to cease all activities. 11
  • 48. 560.7 Waste Management and Reclamation(a) Fluids must be removed from any on-site pit and the pit reclaimed no later than 45 days aftercompletion of drilling and stimulation operations at the last well on the pad, unless thedepartment grants an extension pursuant to paragraph 554.1(c)(3) of this Title. Flowback watermust be removed from on-site tanks within the same time frame.(b) Removed pit fluids including used drilling mud must be disposed, recycled or reused asdescribed in the approved fluid disposal plan submitted pursuant to paragraph 554.1(c)(1) of thisTitle. Transport off-site of used drilling mud, flowback water and production brine by vehiclemust be undertaken by a waste transporter permitted pursuant to Part 364 of this Title.(c) Drill cuttings must be disposed of or reused as described in the approved drill cuttingsdisposal/beneficial reuse plan submitted pursuant to paragraph 554.1(c)(4) of this Title. Cuttingscontaminated with oil-based mud or polymer-based mud containing mineral oil lubricant must becontained and managed in a closed-loop tank system and may not be buried on site, and must beremoved from the site for disposal in a solid waste disposal facility. Transport off-site of drillcuttings, except cutting samples collected upon the request of the department or for analyticalpurposes by the owner or operator, and the pit liner by vehicle must be undertaken by a wastetransporter permitted pursuant to Part 364 of this Title. Disposal or on-site burial of cuttingsassociated with other drilling fluids and any associated pit liner must conform to all applicabledepartment regulations.(d)The pit liner must be ripped and perforated prior to any department-approved burial on-siteand to the extent practical, excess pit liner material must be removed and disposed of properly.(e)Permission of the surface owner is required for any department-approved on-site burial ofcuttings and pit liner, regardless of type of drilling proposed for use, listed byfluids used.(f) Burial of any other solid waste on-site is specifically prohibited and all such waste must beremoved from the site and disposed of properly.(g) A site-specific acid rock drainage mitigation plan must be prepared by the owner or operator,approved by the department and followed for on-site burial of cuttings from any horizontaldrilling in the Marcellus if the owner or operator elects to bury these cuttings. The approved planmust be available on-site to a department inspector while activities addressed by the plan aretaking place. 12
  • 49. (h) Unless otherwise approved by the department, well pads and access roads constructed fordrilling and production operations must be scarified or ripped to alleviate compaction prior toreplacement of topsoil. Reclaimed areas must be seeded and mulched after topsoil replacement.Any proposal by the owner or operator to waive these reclamation requirements must beaccompanied by documentation of the landowners consent.(i) Flowback water recovered after high-volume hydraulic fracturing operations must be testedfor naturally occurring radioactive material prior to removal from the site. Fluids recoveredduring the production phase (i.e., production brine) must also be tested for naturally occurringradioactive material prior to removal. Radiological analyses of flowback water and productionbrine must include analysis for combined radium (Ra-226 and Ra-228) and other analytes asdirected by the department. The soils adjacent to the flowback water and production brine tanksmust be measured for radioactivity upon removal of the tanks, and at such other times as thedepartment may require. For soil samples, analyses must at a minimum include gammaspectroscopy for all naturally occurring gamma emitters including Ra-226 and Ra-228 (asdetermined from the presence of their decay products).(j) Production brine is prohibited from being directed to or stored in any on-site pit or freshwaterimpoundment. Covered watertight steel, fiberglass or plastic tanks, or covered watertight tanksconstructed of another material approved by the department, are required for production brinehandling and containment on the well pad. Production brine tanks, piping and conveyances,including valves, must be constructed of suitable materials, be of sufficient pressure rating andbe maintained in a leak-free condition.(k) Radiation surveys of the well head, piping, and flowback water and production brine tanksmust be performed using instrumentation, and on a schedule, prescribed by the department.(l) Partial reclamation and final reclamation of any well pad and access road must be performedin conformance with plans approved by the department. 13
  • 50. PROPOSED REVISIONS TO PART 750-3 14
  • 51. 750-3.3 Prohibited Activities and Discharges(a) The prohibitions in this section are in addition to those listed in section 750-1.3 of this Part,unless in conflict, superseded or expressly stated otherwise in this section. Well pads for HVHFoperations are prohibited, and no SPDES permit will be issued authorizing any such activity ordischarge:(1) within any of setbacks set forth in 6 NYCRR 560.4(a)(1)-(5), provided that, a variance maybe obtained from any of these setbacks consistent with the terms of 6 NYCRR 560.4(c).(2) within 4,000 feet of, and including, an unfiltered surface drinking water supply watersheds;and (2) within 500 feet of, and including, a primary aquifer;(3) within 100-year floodplains;(4) within 2,000 feet of any public (municipal or otherwise) drinking water supply well,reservoir, natural lake,man-made impoundment, or spring; and(53) within 2,000 feet around a public (municipal or otherwise) drinking water supply intake inflowing water with an additional prohibition of 1,000 feet on each side of the main flowingwaterbody and any upstream tributary to that waterbody for a distance of one mile from thepublic drinking water supply intake; and(6) within 500 feet of a private water well or domestic use spring, or water supply for crops orlivestock, unless the Department has granted a variance from the setback pursuant tosubparagraph 560.4(c) of this Title, adopted on XX, 20XX.(b) All distances noted above are measured from the closest edge of the HVHF well pad. 15
  • 52. Proposed Variance Provision to be Added to Part 750-3.5:Section 750-3.5 is amended to read: Exceptions and VariancesA new paragraph (f) is added to Section 750-3.5 to read:(f) Variances. (1) Unless otherwise precluded by law, the department may, upon written application from any person who is subject to this Part, grant a variance from one or more specific provisions of this Part under the conditions set forth in this subdivision. (2) Every application for a variance must: (i) identify the specific provisions of this Part from which a variance is sought; (ii) demonstrate that compliance with the identified provisions would, on the basis of conditions unique to the persons particular situation, impose an unreasonable economic, technological or safety burden on the person or the public; and (iii) demonstrate that the proposed activity will have no significant adverse impact on the public health, safety or welfare, the environment or natural resources and will be consistent with the provisions of the ECL and the performance expected from application of this Part. (3) In granting any variance under this subdivision, the department may impose specific conditions necessary to assure that the subject activity will have no significant adverse impact on the public health, safety or welfare, the environment or natural resources. 16
  • 53. 750-3.12 Disposal of HVHF wastewater(a) All HVHF wastewater must be treated, recycled, or otherwise properly disposed through thelife of the well in accordance with all applicable federal and state laws.(b) The discharge of flowback to the ground is prohibited. The discharge of drilling fluids,formation fluids and production brine to the ground is prohibited, except in accordance with theterms and conditions of a BUD.(c) Requirements for acceptance, treatment, and disposal of HVHF wastewater at a POTW:(1) HVHF wastewater may be accepted only by a POTW that has a valid SPDES permit and apretreatment program approved by EPA or a mini-pretreatment program approved by thedepartment, and is permitted by the department to accept HVHF wastewater.(2) Prior to being permitted to accept HVHF wastewater, the POTW must perform a headworksanalysis for the HVHF wastewater and submit the analysis for review and approval by thedepartment and EPA. The headworks analysis must meet the requirements of 40 CFR Part 403,including a representative assay of the concentrations of chemical constituents present, as well asother parameters that may be present in the HVHF wastewater. The headworks analysis mustdemonstrate that the HVHF wastewater will not cause a violation of the POTWs effluent limitsor sludge disposal criteria, and will not result in pass through of substances present in HVHFwastewater, or adversely affect the POTWs treatment processes.(3) Once the headworks analysis is approved by both the department and EPA, the departmentshall include in the POTWs SPDES permit, or may modify the POTWs existing SPDES permitto include appropriate monitoring, recording, and reporting requirements, and effluent limitationsassociated with HVHF wastewater.(4) Any HVHF wastewater to be treated by the POTW must be introduced to the headworks ofthe POTW, unless otherwise permitted by the department.(5) For each introduction of HVHF wastewater to the headworks of the POTW, the followingdocumentation must be maintained by the POTW:(i) the source well of the HVHF wastewater, including the identity of the HVHF well owner oroperator; 17
  • 54. (ii) a list of chemical constituents used in HVHF, along with a representative assay of theconcentrations of chemical constituents present, as well as other parameters that may be present;and(iii) the volume of wastewater to be accepted by the POTW.(6) Prior to being permitted to accept HVHF wastewater the POTW must demonstrate that it hasan approved method for transport and disposal of residuals in compliance with Parts 360, 364,380 and 381 and subdivision 750-2.8(e) of this Part.(7) All POTWs shall provide adequate notice to the Department and to EPA of the following:(i) Any new introduction of pollutants to the POTW from an indirect discharger that would besubject to section 301 or 306 of the CWA if it were directly discharging those pollutants;(ii) Any substantial changes in the volume or character of pollutants being introduced into thatPOTW by a source introducing pollutants into the POTW at the time of issuance of the permit(iii) For the purposes of this paragraph, adequate notice shall include information on:(a) the quality and quantity of effluent introduced into the POTW; and(b) any anticipated impact of the change on the quantity or quality of effluent to be dischargedfrom the POTW.(d) Requirements for offsite acceptance, treatment, recycling, and disposal of HVHF wastewaterat a privately owned industrial wastewater treatment facility:(1) HVHF wastewater may be accepted only by a facility that has a valid SPDES permit and ispermitted by the department to accept HVHF wastewater.(2) Prior to being permitted to accept HVHF wastewater, the facility must complete anapprovable treatability analysis for the HVHF wastewater. The treatability analysis mustdemonstrate that the HVHF wastewater will not cause a violation of the facilitys effluent limitsor sludge disposal criteria, and will not result in pass through of substances present in HVHFwastewater, or adversely affect the facilitys treatment processes. The treatability analysis mustinclude the following:(i) each source of HVHF wastewater to be accepted and the identity of each HVHF well owneror operator; 18
  • 55. (ii) the total volume of HVHF wastewater to be accepted by the facility from each source ofHVHF wastewater, and the proposed rate of introduction into the facility;(iii) for each identified source of HVHF wastewater, a representative assay of the concentrationsof chemical constituents present, as well as other parameters that may be present in the HVHFwastewater;(iv) the expected effluent concentrations of all chemical constituents present, as well as otherparameters that may be present in the HVHF wastewater; and(v) the volume of treated HVHF wastewater to be discharged as effluent and the volume oftreated HVHF wastewater to be generated for reuse.(3) Once the treatability analysis is approved by the department, the department shall include inthe facilitys SPDES permit, or may modify the facilitys existing SPDES permit to include,appropriate monitoring, recording and reporting requirements, and effluent limitations associatedwith HVHF wastewater.(4) Any HVHF wastewater to be treated by the facility must be introduced to the headworks ofthe facility, unless otherwise permitted by the department.(5) For each introduction of HVHF wastewater to the headworks of the facility, the followingdocumentation must be maintained by the facility:(i) the source well of the HVHF wastewater, including the identity of the HVHF well owner oroperator;(ii) a list of all chemical constituents used in HVHF, along with a copy of the representativeassay required in subparagraph (2) (iii) above; and(iii) the volume of wastewater to be accepted by the facility.(6) Prior to being permitted to accept HVHF wastewater, the facility must also demonstrate thatit has an approved method for transport and disposal of residuals in compliance with Parts 360,364, 380 and 381 and subdivision 750-2.8(e) of this Part.(e) Requirements for onsite treatment and recycling of HVHF wastewater:(1) Facilities constructed specifically for the onsite treatment of HVHF wastewater are prohibitedfrom directly discharging to the waters of the State pursuant to 40 CFR Part 435. These onsitefacilities are not eligible to obtain a SPDES permit. All HVHF wastewater accepted and treated 19
  • 56. by these onsite facilities must be either reused, as approved by the department, or transported foroffsite disposal at a permitted facility.(2) Prior to acceptance of any HVHF wastewater , the onsite facility must demonstrate to thedepartment that it has an approved method of disposal of residuals in compliance with Parts 360,364, 380, and 381 of this Title and subdivision 750-2.8(e) of this Part.(f) Requirements for deep well injection of HVHF wastewater:(1) HVHF wastewater may be accepted only by a deep well injection facility that has a validSPDES permit and is permitted by the department to accept HVHF wastewater.(2) The owner or operator of the disposal well must obtain a permit, or a modification to anexisting permit, under the EPA Underground Injection Control (UIC) program for disposal wellsprior to applying for a SPDES permit, or a modification to an existing SPDES permit, inaccordance with this subpart and subpart 750-1.(3) The SPDES permit application for a new deep well injection facility or modification of anexisting deep well injection facility SPDES permit to accept HVHF wastewater must include thefollowing:(i) each source of HVHF wastewater and the identity of each HVHF well owner or operator;(ii) the total volume of HVHF wastewater from each source of HVHF wastewater, and theproposed rate of introduction into the disposal well;(iii) for each identified source of HVHF wastewater, a representative assay of the concentrationsof chemical constituents present, as well as other parameters that may be present in the HVHFwastewater;(iv) geotechnical information regarding the ability of the disposal stratum to accept and retain theinjected fluid, including an estimate of available capacity;(v) a water quality analysis of the receiving stratum for chemical constituents present, as well asother parameters that may be present in the HVHF wastewater; and(vi) injection well construction and operational control information showing that the well meetsthe applicable EPA UIC injection well standards as promulgated under 40 CFR Parts 144-148and sections 1423 and 1425 of the Safe Drinking Water Act. 20
  • 57. (4) The SPDES permit application for an existing deep well injection facility that has alreadybeen approved to accept HVHF wastewater, but wishes to accept another source of HVHFwastewater must include the items listed in paragraph 750-3.12 (f)(3).(5) In addition to the requirements of the EPA UIC program, the department may proposeappropriate monitoring, recording and reporting requirements and effluent limitations in theSPDES permit, including:(i) effluent limitations, pursuant to Parts 701-706 of this Title for chemical constituents present,as well as other parameters that may be present in the HVHF wastewater;(ii) the proposed well construction and operation program; and(iii) installation of upgradient and downgradient monitoring wells and a monitoring programwith periodic monitoring for chemical constituents present, as well as other parameters that maybe present in the HVHF wastewater.(g) (1) In the event the department or any governmental agency administering the relevantPOTW, privately owned industrial wastewater treatment facility, and/or deep well injectionfacility is required by this Part or other governing law to disclose to the public the informationsubmitted pursuant to paragraphs 750-3.12(c)(2), (c)(5), (c)(7), (d)(2), (d)(5), (f)(3) and/or (f)(4)of this subdivision, owner or operators or other persons who supply information subject toparagraphs 750-3.12(c)(2), (c)(5), (c) (7), (d)(2), (d)(5), (f)(3) and/or (f)(4) of this subdivisionmay request such records to be exempt from disclosure as trade secret as provided by Part 616 ofthis Title.(3)To the extent that information considered trade secret has already been submitted to thedepartment and/or any other governmental agency holding records in relation to paragraphs 750-3.12(c)(2), (c)(5), (c)(7), (d)(2), (d)(5), (f)(3) and/or (f)(4) of this subdivision, whether inconnection with a prior application made pursuant to 6 NYCRR Part 560, this Part, or otherwise,the prior submission may be referenced in the information submitted pursuant to paragraphs 750-3.12(c)(2), (c)(5), (c)(7), (d)(2), (d)(5), (f)(3) and/or (f)(4) of this subdivision, in lieu ofsubmitting duplicative trade secret information. 21
  • 58. EXHIBIT B
  • 59. The following is a list of all the regulatory variance provisions the Department has enacted forthe numerous programs it administers. Each provision allows applicants to vary or modify therequirements under the governing regulations.6 NYCRR 225-1.4-Exceptions Contingent Upon Fuel Shortage (Air Resources- FuelComposition & Use-Sulfur Limitations)(a) Upon application by an air contamination source owner or a fuel supplier, or upon his own initiative, the commissioner may issue an order granting a temporary variance from the provisions of this Subpart where it can be shown, to the commissioners satisfaction, that there is an insufficient supply of conforming fuel, either: (1) of the proper type required for use in a particular air contamination source; or (2) generally throughout an area of the State.(b) The Commissioner of the State Energy Office must certify that there exists an insufficient supply of fuel which conforms to the standards in this Subpart before a sulfur-in-fuel variance may be granted under this subdivision.(c) The commissioner may grant a sulfur-in-fuel variance contingent upon a fuel shortage for a period not longer than 45 days.(d) The commissioner may grant a sulfur-in-fuel variance contingent upon a fuel shortage for a period longer than 45 days but not longer than one year only after a public hearing is held to gather information relevant to such a variance. The applicant for the variance must publish notice of such hearings, in a form acceptable to the commissioner, in a newspaper of general circulation in the area for which the variance is sought. The applicant will bear the cost of publication of the notice, of the hearing transcript, and for rental of space in which the hearing is conducted.(e) An economic adjustment fee must be deposited with the commissioner before a variance will be granted. The economic adjustment fee is computed by multiplying the cost per unit of conforming fuel, less the cost per unit of nonconforming fuel, by the quantity of nonconforming fuel allowed to be supplied by the variance.6 NYCRR 225-1.5-General Variances (Air Resources-Fuel Composition & Use- SulfurLimitations)(7) The owner or operator may obtain a variance from the requirements of this subdivision if the commissioner finds, as a result of a demonstration by the owner or operator, either: that alternative design and operating practices together with location characteristics will prevent the migration of hazardous waste or hazardous constituents into the ground water or surface water at least as effectively as secondary containment during the active life of the tank system; or that in the event of a release that does migrate to ground water or surface water, no substantial present or potential hazard will be posed to human health or the environment. New underground tank systems may not, per a demonstration in accordance with subparagraph (ii) of this paragraph, be exempted from the secondary containment requirements of this subdivision. Application for a variance as allowed in this paragraph does not waive compliance with the requirements of this section for new tank systems. (i) In deciding whether to grant a variance based on a demonstration of equivalent protection of ground water and surface water, the commissioner will consider: (a) the nature and quantity of the waste; (b) the proposed alternate design and operation; 1
  • 60. (c) the hydrogeologic setting of the facility, including the thickness of soils between the tank system and ground water; and (d) all other factors that would influence the quality and mobility of the hazardous constituents and the potential for them to migrate to ground water or surface water.(ii) In deciding whether to grant a variance, based on a demonstration of no substantialpresent or potential hazard, the commissioner will consider: (a) the potential adverse effects on ground water, surface water, and land quality taking into account: (1) the physical and chemical characteristics of the waste in the tank system, including its potential for migration; (2) the hydrogeological characteristics of the facility and surrounding land; (3) the potential for health risks caused by human exposure to waste constituents; (4) the potential for damage to wildlife, crops, vegetation, and physical structures caused by exposure to waste constituents; and (5) the persistence and permanence of the potential adverse effects; (b) the potential adverse effects of a release on ground water quality, taking into account: (1) the quantity and quality of ground water and the direction of ground water flow; (2) the proximity and withdrawal rates of water in the area; (3) the current and future uses of ground water in the area; and (4) the existing quality of ground water, including other sources of contamination and their cumulative impact on the ground water quality; (c) the potential adverse effects of a release on surface water quality, taking into account: (1) the quantity and quality of ground water and the direction of ground water flow; (2) the patterns of rainfall in the region; (3) the proximity of the tank system to surface waters; (4) the current and future uses of surface waters in the area and any water quality standards established for those surface waters; and (5) the existing quality of surface water, including other sources of contamination and the cumulative impact on surface water quality; and (d) the potential adverse effects of a release on the land surrounding the tank system, taking into account: (1) the patterns of rainfall in the region; and (2) the current and future uses of the surrounding land.(iii) The owner or operator of a tank system, for which a variance from secondarycontainment had been granted in accordance with the requirements of subparagraph (i) ofthis paragraph, at which a release of hazardous waste has occurred from the primary tanksystem but has not migrated beyond the zone of engineering control (as established in thevariance), must: 2
  • 61. (a) comply with the requirements of subdivision (g) of this section, except paragraph (4); and (b) decontaminate or remove contaminated soil to the extent necessary to: (1) enable the tank system, for which the variance was granted, to resume operation with the capability for the detection of and response to releases at least equivalent to the capability it had prior to the release; and (2) prevent the migration of hazardous waste or hazardous constituents to ground water or surface water; and (c) if contaminated soil cannot be removed or decontaminated in accordance with clause (b) of this subparagraph, comply with the requirements of paragraph (h)(2) of this section. (iv) The owner or operator of a tank system, for which a variance from secondary containment had been granted in accordance with the requirements of subparagraph (i) of this paragraph, at which a release of hazardous waste has occurred from the primary tank system and has migrated beyond the zone of engineering control (as established in the variance), must: (a) comply with the requirements of paragraphs (g)(1)-(4) of this section; (b) prevent the migration of hazardous waste or hazardous constituents to ground water or surface water, if possible, and decontaminate or remove contaminated soil. If contaminated soil cannot be decontaminated or removed, or if ground water has been contaminated, the owner or operator must comply with the requirements of paragraph (h)(2) of this section; and (c) provide secondary containment in accordance with the requirements of paragraphs (1)-(6) of this subdivision if repairing, replacing, or reinstalling the tank system, or reapply for a variance from secondary containment and meet the requirements for new tank systems in subdivision (c) of this section if the tank system is replaced. The owner or operator must comply with these requirements even if contaminated soil can be decontaminated or removed, and ground water or surface water has not been contaminated.(8) The following procedures must be followed in order to request a variance from secondarycontainment. (i) The commissioner must be notified in writing by the owner or operator that the owner or operator intends to conduct and submit a demonstration for a variance from secondary containment as allowed in paragraph (7) of this subdivision according to the following schedule: (a) for existing tank systems, at least 24 months prior to the date that secondary containment must be provided in accordance with paragraph (1) of this subdivision; and (b) for new tank systems, at least 30 days prior to entering into a contract for installation of the tank system. (ii) As part of the notification, the owner or operator must also submit to the commissioner a description of the steps necessary to conduct the demonstration and a timetable for completing each of the steps. The demonstration must address each of the factors listed in subparagraph (7)(i) or (ii) of this subdivision. 3
  • 62. (iii) The demonstration for a variance must be completed and submitted to the commissioner within 180 days after notifying the commissioner of intent to conduct the demonstration.6 NYCRR 225-3.5-Exceptions & Variances-Volatility (Air Resources-Fuel Composition &Use-gasoline)(b) Effective September 16, 1989, upon application, the commissioner, after consultation withthe President of the New York State Energy Research and Development Authority, may grant atemporary variance from the requirements of section 225-3.3 of this Subpart if the applicant forsuch an exception can demonstrate to the commissioner that quantities of gasoline sufficient tomeet the demand in New York State cannot be manufactured in time to meet all the requirementsof section 225-3.3 of this Subpart. (1) The President of the New York State Energy Research and Development Authority, must certify that there exists an insufficient supply of fuel which conforms to the standards in section 225-3.3 of this Subpart before a temporary variance may be granted under this subdivision. (2) The commissioner shall impose an interim volatility standard and/or restrictions on the quantity of gasoline permitted to be supplied as conditions of a variance granted pursuant to this subdivision. (3) The commissioner shall require that an economic adjustment fee must be deposited with the commissioner before a temporary variance will be granted. The economic adjustment fee shall equal the economic benefit that may accrue because of the lower cost of gasoline that does not comply with section 225-3.3 of this Subpart, in comparison with gasoline that does.6 NYCRR 230.8-Variances (Air Resources-Gasoline Dispensing Sites & TransportVehicles)Where it can be shown to the satisfaction of the commissioner that a gasoline dispensing site orgasoline transport vehicle cannot comply with the requirements of this Part for reasons oftechnological or economic feasibility, the commissioner may, upon submission of satisfactoryevidence, grant to the source owner or operator a variance from the requirements of this Part andaccept a lesser degree of control or an alternate compliance schedule.6 NYCRR 231-7.4-General Requirements (Air Resources- New Major Facilities andModifications to Existing Non-Major Facilities in Attainment Areas (Prevention ofSignificant Deterioration)(5) Federal class I variances. The owner or operator of a proposed new or modified facility may demonstrate to the Federal land manager that the emissions from the new or modified facility would have no adverse impact on the air quality related values (including visibility) of any such lands, notwithstanding that the change in air quality resulting from emissions from the new or modified facility would cause or contribute to concentrations which would exceed the maximum allowable increases for a Federal class I area. If the Federal land manager concurs with such demonstration and so certifies, provided that the applicable requirements of this section are otherwise met, the State may issue the permit with such emission limitations as may be necessary to assure that emissions of SO2, PM, and NOx would not exceed the 4
  • 63. maximum allowable increases over minor source baseline concentration as listed in table 7 of Subpart 231-13 of this Part.(6) SO2 variance by Governor of the Federal class I area with Federal land managers concurrence. The owner or operator of a proposed new or modified facility which cannot be approved under paragraph (4) of this subdivision may demonstrate to the governor of the Federal class I area that the new or modified facility cannot be constructed by reason of any maximum allowable increase for SO2 for a period of 24 hours or less applicable to any Federal class I area, and that a variance under this clause would not adversely affect the air quality related values of the area (including visibility). The governor of the Federal class I area, after consideration of the Federal land managers recommendation (if any) and subject to his concurrence, may, after notice and public hearing, grant a variance from such maximum allowable increase. If such variance is granted, the department will issue a permit to the new or modified facility, provided that the applicable requirements of this Subpart are otherwise met. In this instance, the SO2 concentrations must meet the maximum allowable increase in SO2 concentrations in table 8 of Subpart 231-13 of this Part. 6 NYCRR 231-8.5 – General Requirements (Air Resources-Modifications to Existing Major Facilities in Attainment Areas (Prevention of Significant Deterioration)(5) Federal Class I variances. The owner or operator of a proposed new or modified facility may demonstrate to the Federal land manager that the emissions from the new or modified facility would have no adverse impact on the air quality related values (including visibility) of any such lands, notwithstanding that the change in air quality resulting from emissions from the new or modified facility would cause or contribute to concentrations which would exceed the maximum allowable increases for a Federal Class I area. If the Federal land manager concurs with such demonstration and so certifies, provided that the applicable requirements of this section are otherwise met, the State may issue the permit with such emission limitations as may be necessary to assure that emissions of SO2, PM, and NOx would not exceed the maximum allowable increases over minor source baseline concentration as listed in Table 7 of Subpart 231-13 of this Part.(6) SO2 variance by Governor of the Federal Class I area with Federal land managers concurrence. The owner or operator of a proposed new or modified facility which cannot be approved under Paragraph 231-8.5(f)(4) of this Subdivision may demonstrate to the Governor of the Federal Class I area that the new or modified facility cannot be constructed by reason of any maximum allowable increase for SO2 for a period of 24 hours or less applicable to any Federal Class I area, and that a variance under this Clause would not adversely affect the air quality related values of the area (including visibility). The Governor of the Federal Class I area, after consideration of the Federal land managers recommendation (if any) and subject to his concurrence, may, after notice and public hearing, grant a variance from such maximum allowable increase. If such variance is granted, the department will issue a permit to the new or modified facility, provided that the applicable requirements of this Subpart are otherwise met. 5
  • 64. 6 NYCRR 232.3- Variances (Air Resources-Perchloroethylene Dry Cleaning Facilties)(a) Unless otherwise precluded by federal statute, or subdivision (d) of this section, theDepartment may, upon written application from any person who is subject to this Part, grant avariance from one or more specific provisions of this Part under the conditions set forth in thissection. However, it should be noted that variances will only be granted under exceptional orextraordinary circumstances.(b) Every application for a variance must: (1) identify the specific provisions of this Part from which a variance is sought; (2) demonstrate that compliance with the identified provisions would, on the basis of conditions unique to the persons particular situation in contrast to the rest of the industry or any segment thereof, tend to impose an unreasonable economic, technological, or safety burden on the person or the public; and (3) demonstrate that the proposed activity will have no significant adverse impact on the public health, safety, or welfare, the environment or natural resources and will be consistent with the provisions of the Environmental Conservation Law (ECL) and the performance expected from an activity permitted under the provisions of this Part.6 NYCRR 235-8.1-Variances (Air Resources-Consumer Products)(a) Any person who cannot comply with the requirements set forth in Subpart 235-3 of this Part,because of extraordinary reasons beyond the persons reasonable control may apply in writing tothe director, Division of Air Resources, Department of Environmental Conservation for avariance. When approved by the director, Division of Air Resources, Department ofEnvironmental Conservation, the variance will be submitted to the United States EnvironmentalProtection Agency as a State Implementation Plan revision for approval. The varianceapplication shall set forth: (1) the specific grounds upon which the variance is sought; (2) the proposed date(s) by which compliance with the provisions of Subpart 235-3 of this Part will be achieved; and (3) a compliance report reasonably detailing the method(s) by which compliance will be achieved.(b) No variance shall be granted unless all of the following findings are made: (1) that, because of reasons beyond the reasonable control of the applicant, requiring compliance with Subpart 235-3 of this Part would result in extraordinary economic hardship; (2) that the public interest in mitigating the extraordinary hardship to the applicant by issuing the variance outweighs the public interest in avoiding any increased emissions of air contaminants which would result from issuing the variance; and (3) that the compliance report proposed by the applicant can reasonably be implemented, and will achieve compliance as expeditiously as possible.6 NYCRR 239-7.1 Variances (Air Resources – Portable Fuel Container Spillage Control)(a) Any person or manufacturer who cannot comply with the requirements set forth in Subpart239-3 of this Part, due to extraordinary reasons beyond the persons reasonable control, mayapply in writing to the department for a variance. The variance application must set forth: (1) the specific grounds upon which the variance is sought; 6
  • 65. (2) the proposed date(s) by which compliance with the provisions of Subpart 239-3 of this Part will be achieved; and (3) a compliance report detailing the method(s) by which compliance will be achieved.(b) No variance may be granted unless all of the following findings are made: (1) that, due to reasons beyond the reasonable control of the applicant, required compliance with Subpart 239-3 of this Part would result in extraordinary economic hardship; (2) that the public interest in mitigating the extraordinary hardship to the applicant by issuing the variance outweighs the public interest in avoiding any increased emissions of air contaminants that would result from issuing the variance; and (3) that the compliance report proposed by the applicant can reasonably be implemented, and will achieve compliance as expeditiously as possible.6 NYCRR 360-1.7-Permit Requirements, Exemptions & Variances (Quality Services-General Provisions)(c) Variances. (1) Unless otherwise precluded by law, the department may, upon written application from any person who is subject to this Part, grant a variance from one or more specific provisions of this Part under the conditions set forth in this subdivision. In any event, no variance will be granted which would authorize a municipal solid waste landfill to be designed, constructed or operated at standards less stringent then those defined under 40 CFR part 258, Criteria For Municipal Solid Waste Landfills. (2) Every application for a variance must: (i) identify the specific provisions of this Part from which a variance is sought; (ii) demonstrate that compliance with the identified provisions would, on the basis of conditions unique to the persons particular situation, and to impose an unreasonable economic, technological or safety burden on the person or the public; and (iii) demonstrate that the proposed activity will have no significant adverse impact on the public health, safety or welfare, the environment or natural resources and will be consistent with the provisions of the ECL and the performance expected from application of this Part. (3) In granting any variance under this subdivision, the department will impose specific conditions necessary to assure that the subject activity will have no significant adverse impact on the public health, safety or welfare, the environment or natural resources.6NYCRR 361.1-General (Quality Services-Siting of Industrial Hazardous Waste Facilities)(e) Variances. (1) Upon written application from any person who is subject to this Part, the department and, after constituting of a board, the board, may grant a variance from one or more specific provisions of this Part, consistent with this subdivision. (2) Any application for a variance hereunder must: (i) identify the specific provisions of this Part from which a variance is sought; (ii) demonstrate that compliance with the identified provisions would, on the basis of conditions unique and peculiar to the applicants particular situation, tend to 7
  • 66. impose a substantial financial, technological, or safety burden on the applicant or the public; and (iii) demonstrate that the proposed activity will have no significant adverse impact on the health, safety, welfare, natural resources, or environment of the People of the State and will be consistent with the provisions of the ECL, the purpose of these rules and regulations, and the performance expected from application of these rules and regulations.6 NYCRR 364-1(e)(4) General (Quality Services-Waste Transporter Permits)(4) The department may, upon written application from a transporter who is subject to this Part,grant approval for exemption of vehicles owned and operated by the transporter from specifiedpermit requirements of this Part. Any such transporter is still subject to the requirements ofsubparagraph (ii) of this paragraph and other conditions which the department may impose onthe granting of such approval, which are reasonably necessary to effectuate the purposes of thisPart. (i) Any application for such an exemption must demonstrate: (a) That compliance with the specified permit requirement provisions would create a hardship on the applicants business activities; (b) The transporter owns and operates a minimum of 500 vehicles which operate in interstate commerce; (c) The applicant does not have any vehicles specifically designated for the transport of regulated waste and that such designation would create a hardship; (d) The transport of regulated waste accounts for no greater than one percent of the applicants total annual cargo; and (e) The transport of regulated waste is over irregular routes on a non-regularly scheduled call-on-demand basis. (ii) An exemption pursuant to this paragraph is subject to the following terms and conditions: (a) The transporter shall comply with all applicable manifest requirements under Part 372 of this title; (b) A copy of the departments approval for exemption shall be carried in all vehicles transporting regulated waste in this state; (c) A waste transporter annual report shall be submitted to the department on forms issued or approved by the department; (d) Vehicles used for transporting regulated waste shall not be used for transporting any food for human consumption or animal feed or any articles destined for sale to the general public whose use normally involves physical contact with humans (e.g., clothing). This prohibition shall not apply if the vehicle has been properly cleaned in accordance with all applicable federal and state regulations governing decontamination or other methods approved by the department; and (e) Other requirements specified by the Commissioner. (iii) The exemption shall be valid for the specific time period as indicated in the exemption letter and under no circumstances for longer than one year. Any exemption granted hereunder may be revoked for any violation of the terms of such exemption or for a violation of any other applicable rules and regulations of the department related to the 8
  • 67. transportation of regulated waste, or upon a showing that the transporter no longer meets the requirements for exemption. Such revocation will be subject to the procedures specified in the Uniform Procedures Act and Part 621 of this Title.6 NYCRR 364.1(g)-General (Quality Services- Waste Transporter Permits)(g) Variances. (1) The department may, upon written application from any person who is subject to this Part, grant a variance from one or more specific provisions of this Part, consistent with this subdivision. (2) Any application for a variance hereunder must: (i) identify the specific provisions of this Part from which a variance is sought; (ii) demonstrate that compliance with the identified provisions would, on the basis of conditions unique and peculiar to the applicants particular situation, impose a substantial financial, technological or safety burden on the applicant or the public; and (iii) demonstrate that the proposed activity will have no significant adverse impact on public health, safety or welfare, the environment or natural resources, and will be consistent with the provisions of the ECL, the purpose of this Part and the performance expected from applications of this Part. (3) In granting any variance hereunder, the department may impose specific conditions reasonably necessary to assure that the subject activity will have no significant adverse impact on public health, safety or welfare, the environment or natural resources.6 NYCRR 370.3-Variances (Quality Services- Hazardous Waste Management System:General)(a) General. (1) Any person may petition the commissioner to use an equivalent testing or analytical method, to exclude a waste produced at a particular facility from the requirements of Part 370 through 374, and 376 of this Title, to be granted a variance from classification as a solid waste or to be granted a variance to be classified as a boiler. This subdivision sets forth general requirements which apply to these petitions. Subdivision (b) of this section sets forth additional requirements for petitions to use a testing or analytical method that varies from the methods specified in Part 371 and Subparts 373-2 and 373-3 of this Title. Subdivision (c) of this section sets forth additional requirements for petitions to exclude a waste at a particular facility from subdivision 371.1(d) and section 371.4 of this Title. Subdivisions (d) and (e) of this section set forth additional requirements for petitions to be granted a variance from classification as a solid waste under subdivision 371.1(c) of this Title. Subdivision (f) of this section sets forth additional requirements for petitions to be granted a variance to be classified as a boiler. (2) Each petition must be submitted to the commissioner and must include: (i) the petitioners name and address; (ii) a statement of the petitioners interest in the proposed action; (iii) a description of the proposed action; (iv) a statement of the need and justification of the proposed action, including any supporting tests, studies, or other information; and 9
  • 68. (v) the following statement signed by the petitioner or an authorized representative: “I certify under penalty of law that I have personally examined and am familiar with the information submitted in this demonstration and all attached documents, and that, based on my inquiry of those individuals immediately responsible for obtaining the information, I believe that the submitted information is true, accurate, and complete. I am aware that submitting false information is punishable under 210.45 of the State Penal Law, including the possibility of fine and imprisonment.“ (3) The commissioner will determine if sufficient information has been submitted in order to grant or deny a petition. (i) If the commissioner determines that sufficient information has been submitted, a tentative decision will be made to grant or deny a petition. A notice of such tentative decision will be published by the department in the Environmental Notice Bulletin for written public comment. In the case of a petition under subdivisions (d) and (f) of this section, notification of this tentative decision will also be provided by newspaper advertisement and radio broadcast in the locality where the petitioners facility is located. The public will be provided a minimum comment period of thirty days. (ii) If the commissioner determines that additional information is needed, the commissioner will notify the petitioner in writing of the needed information. (4) Upon the written request of any interested person, the commissioner may then hold a legislative public hearing to consider oral comments on the tentative decision. A person requesting a hearing must state the issues to be raised and explain why written comments would not suffice to communicate the persons views. The commissioner may in any case decide to initiate a motion to hold a legislative public hearing. (5) After evaluating all public comments, the commissioner will make a final decision and shall publish notice of the decision in the Environmental Notice Bulletin.(b) Petitions for equivalent testing or analytical methods. (1) Any person seeking to add a testing or analytical method to Part 371, Subpart 373-2, or Subpart 373-3 of this Title must first petition the EPA Administrator for a regulatory amendment under 40 CFR 260.21 and 40 CFR 260.20, as incorporated by reference in subdivision 370.1(e) of this Part. Upon approval by the EPA Administrator, the petitioner must then demonstrate to the commissioner that the proposed method is equal to or superior to the corresponding method prescribed in Part 371 and Subparts 373-2 and 373- 3 of this Title, in terms of its sensitivity, accuracy and precision (i.e., reproducibility). (2) Each petition must include, in addition to the information required by paragraph (a)(2) of this section: (i) a full description of the proposed method, including all steps and equipment used in the method; (ii) a description of the types of wastes or waste matrices for which the proposed method may be used; (iii) comparative results obtained from using the relevant or corresponding methods prescribed in Part 371 and Subparts 373-2 and 373-3 of this Title; (iv) an assessment of any factors which may interfere with or limit the use of the proposed method; and 10
  • 69. (v) a description of the quality control procedures necessary to ensure the sensitivity, accuracy and precision of the proposed method.(c) Petitions to exclude a waste produced at a particular facility. (1) Any person seeking to exclude a waste from the lists in section 371.4 of this Title at a particular generating facility must first petition the EPA Administrator for a regulatory amendment under 40 CFR 260.22 and 40 CFR 260.20, as incorporated by reference in subdivision 370.1(e) of this Part. Upon approval by the EPA Administrator, the petitioner may then seek concurrence from the commissioner under this subdivision and subdivision (a) of this section. To be successful: (i) The Petitioner must demonstrate to the commissioner that the waste produced by a particular generating facility does not meet any of the criteria under which the waste was listed as a hazardous or an acutely hazardous waste; and (ii) based on a complete petition, the commissioner must determine, where there is a reasonable basis to believe that factors (including additional constituents) other than those for which the waste was listed could cause the waste to be a hazardous waste, that such factors do not warrant retaining the waste as a hazardous waste. A waste which is so excluded, however, is a hazardous waste if it fails one of the characteristic tests of section 371.3 of this Title. (2) The procedures in this subdivision and subdivision (a) of this section may also be used to petition the commissioner for an exclusion from section 371.1(d)(1)(ii)(b) and (d)(3) of this Title, a waste which is described in those sections and is either a waste listed in section 371.4, or is derived from a waste listed in section 371.4. This exclusion may only be used for a particular generating storage, treatment, or disposal facility. The petitioner must make the same demonstration as required by paragraph (1) of this subdivision. Where the waste is a mixture of solid waste and one or more listed hazardous wastes or is derived from one or more hazardous wastes, the petitioners demonstration may be made with respect to the waste mixture as a whole; analysis must be conducted for not only those constituents for which the waste contained in the mixture was listed as hazardous, but also for factors (including additional constituents) that could cause the waste mixture to be a hazardous waste. A waste which is so excluded is still a hazardous waste if it exhibits any of the characteristics identified in section 371.3 of this Title. (3) If the waste is listed with codes “I“, “C“, “R“, or “E“ in section 371.4 of this Title: (i) the petitioner must show that the waste does not exhibit the relevant characteristic for which the waste was listed as defined in section 371.3(b),(c),(d), or (e) of this Title using any applicable methods prescribed therein. The petitioner also must show that the wastes does not exhibit any of the other characteristics defined in section 371.3(b), (c), (d), or (e)of this Title using any applicable methods prescribed therein; and (ii) based on a complete petition, the commissioner must determine, where there is a reasonable basis to believe that factors (including additional constituents) other than those for which the waste was listed could cause the waste to be a hazardous waste, that such factors do not warrant retaining the waste as a hazardous waste. A waste which is so excluded, however, is a hazardous waste if it fails one of the characteristic tests of section 371.3 of this Title. (4) If the waste is listed with code “T“ in section 371.4 of this Title: 11
  • 70. (i)(a) the petitioner must demonstrate that the waste does not contain the constituent or constituents (as defined in Appendix 22 of this Title) that caused the commissioner to list the waste, using the appropriate test methods prescribed in “Test Methods for Evaluating Solid Waste, Physical/Chemical Methods,“ EPA Publication SW-846, as incorporated by reference in subdivision 370.1(e) of this Part; or (b) the waste, although containing one or more of the hazardous constituents (as defined in Appendix 22 of this Title) that caused the commissioner to list the waste, does not meet the criterion of section 371.2(b)(1)(iii) of this Title when considering the factors in clauses (a) through (k) of such section under which the waste was listed as hazardous; and (ii) the petitioner must demonstrate that the waste does not exhibit any of the characteristics defined in section 371.3(b),(c),(d), and (e) of this Title using any applicable method prescribed therein; (iii) based on a complete petition, the commissioner must determine, where there is reasonable basis to believe that factors (including additional constituents) other than those for which the waste was listed could cause the waste to be a hazardous waste, that such factors do not warrant retaining the waste as a hazardous waste; and (iv) a waste which is so excluded, however, is a hazardous waste if it fails one of the characteristic tests of section 371.3 of this Title.(5) If the waste is listed with the code “H“ in section 371.4 of this Title: (i) (a) the petitioner must demonstrate that the waste does not meet the criterion for listing acute hazardous wastes of section 371.2(b)(1)(ii) of this Title; and (b) the waste does not exhibit any of the characteristics defined in section 371.3(b), (c), (d) and (e) of this Title using any applicable methods prescribed therein; (ii) based on a complete petition, the commissioner must determine, where there is reasonable basis to believe that additional factors (including additional constituents) other than those for which the waste was listed could cause the waste to be a hazardous waste, that such factors do not warrant retaining the waste as a hazardous waste; and (iii) a waste which is so excluded, however, is a hazardous waste if it fails one of the characteristic tests of section 371.3 of this Title.(6) Demonstration samples must consist of enough representative samples, but in no caseless than four samples, taken over a period of time sufficient to represent the variabilityor the uniformity of the waste.(7) Each petition must include, in addition to the information required by paragraph (a)(2)of this section; (i) the name and address of the laboratory facility performing the sampling or tests of the waste; (ii) the names and qualifications of the persons sampling and testing the waste; (iii) the dates of sampling and testing; (iv) the location of the generating facility; 12
  • 71. (v) a description of the manufacturing processes or other operations and feed materials producing the waste and an assessment of whether such processes, operations, or feed materials can or might produce a waste that is not covered by the demonstration; (vi) a description of the waste and an estimate of the average and maximum monthly and annual quantities of waste covered by the demonstration; (vii) pertinent data on and discussion of the factors delineated in the respective criterion for listing a hazardous waste, where the demonstration is based on the factors in section 371.2(b)(1)(iii) of this Title; (viii) a description of the methodologies and equipment used to obtain the representative sample; (ix) a description of the sample handling and preparation techniques, including techniques used for extraction, containerization and preservation of the samples; (x) a description of the tests performed (including results); (xi) the names and model numbers of the instruments used in performing the tests; and (xii) the following statement signed by the generator of the waste or an authorized representative: “I certify under penalty of law that I have personally examined and am familiar with the information submitted in this demonstration and all attached documents, and that, based on my inquiry of those individuals immediately responsible for obtaining the information, I believe that the submitted information is true, accurate, and complete. I am aware that submitting false information is punishable under section 210.45 of the State Penal Law, including the possibility of fine and imprisonment.“ (8) After receiving a petition for an exclusion, the commissioner may request any additional information reasonably required to evaluate the petition. (9) An exclusion will only apply to the waste generated by the individual facility covered by the demonstration and will not apply to waste from any other facility. (10) The commissioner may exclude only part of the waste for which the demonstration is submitted where there is reason to believe that variability of the waste justifies a partial exclusion.(d) Variances from classification as a solid waste. (1) In accordance with the standards and criteria in subdivision (e) and the procedures in subdivision (a) of this section, the commissioner may determine on a case-by-case basis that the following recycled materials are not solid wastes: (i) materials that are accumulated speculatively without sufficient amounts being recycled (as defined in paragraph 371.1(a)(1) of this Part); (ii) materials that are reclaimed and then reused by the same person within the original production process in which they were generated; and (iii) materials that have been reclaimed but must be reclaimed further before the materials are completely recovered.(e) Standards and criteria for variances from classification as a solid waste. (1) The commissioner may grant requests for a variance from classifying as a solid waste those materials that are accumulated speculatively without sufficient amounts being recycled if the applicant demonstrates that sufficient amounts of the material will be recycled or transferred for recycling in the following year. If a variance is granted, it is 13
  • 72. valid only for the following year, but can be renewed, on an annual basis, by filing a new application. The commissioners decision will be based on the following criteria: (i) the manner in which the material is expected to be recycled, when the material is expected to be recycled, and whether, because of past practices, market factors, the nature of the material, or contractual arrangements, the recycling is likely to occur; (ii) the reason that the applicant has accumulated the material for one or more years without recycling at least 75 percent of the volume accumulated at the beginning of the year; (iii) the quantity of material already accumulated and the quantity expected to be generated and accumulated before the material is recycled; (iv) the extent to which the material is handled to minimize loss; (v) other relevant factors. (2) The commissioner may grant requests for a variance from classifying as a solid waste those materials that are reclaimed and then reused as feedstock within the original production process in which the materials were generated if the reclamation operation is an essential part of the production process. This determination will be based on the following criteria: (i) how economically viable the production process would be if it were to use virgin materials, rather than reclaimed materials; (ii) the prevalence of the practice on an industry-wide basis; (iii) the extent to which the materials is handled before reclamation to minimize loss; (iv) the time periods between generating the material and its reclamation, and between reclamation and return to the original primary production process; (v) the location of the reclamation operation in relation to the production process; (vi) whether the reclaimed material is used for the purpose for which it was originally produced when it is returned to the original process, and whether it is returned to the process in substantially its original form; (vii) whether the person who generates the material also reclaims it; and (viii) other relevant factors. (3) The commissioner may grant requests for a variance from classifying as a solid waste those materials that have been reclaimed but must be reclaimed further before recovery is completed if, after initial reclamation, the resulting material is commodity-like (even though it is not yet a commercial product, and has to be reclaimed further). This determination will be based on the following factors: (i) the degree of processing the materials has undergone and the degree of further processing that is required; (ii) the value of the material after it has been reclaimed; (iii) the degree to which the reclaimed material is like an analogous raw material; (iv) the extent to which an end market for the reclaimed material is guaranteed; (v) the extent to which the reclaimed material is handled to minimize loss; and (vi) other relevant factors.(f) Variance to be classified as a boiler. (1) In accordance with the standards and criteria in section 370.2(b) of this Part (definition of “boiler“), and the procedures in subdivision (a) of this section, the 14
  • 73. commissioner may determine on a case-by-case basis that certain enclosed devices using controlled flame combustion are boilers, even though they do not otherwise meet the definition of boiler contained in section 370.2(b), after considering the following criteria: (i) the extent to which the unit has provisions for recovering and exporting thermal energy in the form of steam, heated fluids, or heated gases; (ii) the extent to which the combustion chamber and energy recovery equipment are of integral design; (iii) the efficiency of energy recovery, calculated in terms of the recovered energy compared with the thermal value of the fuel; (iv) the extent to which exported energy is utilized; (v) the extent to which the device is in common and customary use as a “boiler“ functioning primarily to produce steam, heated fluids, or heated gases; and (vi) other relevant factors.6 NYCRR 373-1.1 (Quality Services-Hazardous Waste Treatment, Storage & DisposalFacility Permitting Requirements)(e) Variances. The department may, upon written application from any person who is subject tothis Part, grant a variance from one or more specific provisions of this Part under the followingconditions: (1) Any application for a variance must: (i) identify the specific provisions of this Part from which a variance is sought; (ii) demonstrate that compliance with the identified provision would, on the basis of conditions unique and peculiar to the applicants particular situation, tend to impose a substantial financial, technological, or safety burden on the applicant or the public; and (iii) demonstrate that the proposed activity will have no significant adverse impact on the public health, safety or welfare, the environment or natural resources. (2) The commissioner will not grant any variance which would result in regulatory controls less stringent than those in the RCRA delegated program. (3) In granting any variance, the commissioner may impose specific conditions necessary to assure that the subject activity will have no significant adverse impact on the public health, safety or welfare, the environment or natural resources.6 NYCRR 373-2.8-Financial Requirements (Quality Services-Final Status Standards forOwners and Operators of Hazardous Waste Treatment, Storage and Disposal Facilities)(3) Request for variance. If an owner or operator can demonstrate to the satisfaction of thecommissioner that the levels of financial responsibility required by paragraph (1) or (2) of thissubdivision are not consistent with the degree and duration of risk associated with treatment,storage, or disposal at the facility or group of facilities, the owner or operator may obtain avariance from the commissioner. The request for a variance must be submitted to thecommissioner as part of the application under section 373-1.5(a) of this Part for a facility thatdoes not have a permit, or pursuant to the procedures for permit modification under section 373-1.7 for a facility that has a permit. If granted, the variance will take the form of an adjusted levelof required liability coverage, such level to be based on the commissioners assessment of thedegree and duration of risk associated with the ownership or operation of the facility or group offacilities. The commissioner may require an owner or operator who requests a variance to 15
  • 74. provide such technical and engineering information as is deemed necessary by the commissionerto determine a level of financial responsibility other than that required by paragraph (1) or (2) ofthis subdivision. Any request for a variance for a permitted facility will be treated as a request fora permit modification under section 373-1.7.6 NYCRR 373-3.8-Financial Requirements (Quality Services-Interim Status StandardsRegulations for Owners and Operators of Hazardous Waste Facilities)(3) Request for variance. If an owner or operator can demonstrate to the satisfaction of thecommissioner that the levels of financial responsibility required by paragraphs (1) or (2) of thissubdivision are not consistent with the degree and duration of risk associated with treatment,storage, or disposal at the facility or group of facilities, the owner or operator may obtain avariance from the commissioner. The request for a variance must be submitted in writing to thecommissioner. If granted, the variance will take the form of an adjusted level of required liabilitycoverage, such level to be based on the commissioners assessment of the degree and duration ofrisk associated with the ownership or operation of the facility or group of facilities. Thecommissioner may require an owner or operator who requests a variance to provide suchtechnical and engineering information as is deemed necessary by the commissioner to determinea level of financial responsibility other than that required by paragraph (1) or (2) of thissubdivision. The commissioner will process a variance request as if it were a permit modificationrequest under section 373-1.7 of this Part and subject to the procedures of Part 621 of this Title.Notwithstanding any other provision, the commissioner may hold a public hearing at his or herdiscretion or whenever the commissioner finds, on the basis of requests for a public hearing, asignificant degree of public interest in a tentative decision to grant a variance.6 NYCRR 373-3.10-Tank Systems (Quality Services- Interim Status Standards Regulationsfor Owners and Operators of Hazardous Waste Facilities)(7) The owner or operator may obtain a variance from the requirements of this subdivision if thecommissioner finds, as a result of a demonstration by the owner or operator, either: thatalternative design and operating practices together with location characteristics will prevent themigration of hazardous waste or hazardous constituents into the ground water or surface water atleast as effectively as secondary containment during the active life of the tank system; or that inthe event of a release that does migrate to ground water or surface water, no substantial presentor potential hazard will be posed to human health or the environment. New underground tanksystems may not, per a demonstration in accordance with subparagraph (ii) of this paragraph, beexempted from the secondary containment requirements of this subdivision. Application for avariance as allowed in this paragraph does not waive compliance with the requirements of thissection for new tank systems. (i) In deciding whether to grant a variance based on a demonstration of equivalent protection of ground water and surface water, the commissioner will consider: (a) the nature and quantity of the waste; (b) the proposed alternate design and operation; (c) the hydrogeologic setting of the facility, including the thickness of soils between the tank system and ground water; and (d) all other factors that would influence the quality and mobility of the hazardous constituents and the potential for them to migrate to ground water or surface water. 16
  • 75. (ii) In deciding whether to grant a variance, based on a demonstration of no substantialpresent or potential hazard, the commissioner will consider: (a) the potential adverse effects on ground water, surface water, and land quality taking into account: (1) the physical and chemical characteristics of the waste in the tank system, including its potential for migration; (2) the hydrogeological characteristics of the facility and surrounding land; (3) the potential for health risks caused by human exposure to waste constituents; (4) the potential for damage to wildlife, crops, vegetation, and physical structures caused by exposure to waste constituents; and (5) the persistence and permanence of the potential adverse effects; (b) the potential adverse effects of a release on ground water quality, taking into account: (1) the quantity and quality of ground water and the direction of ground water flow; (2) the proximity and withdrawal rates of water in the area; (3) the current and future uses of ground water in the area; and (4) the existing quality of ground water, including other sources of contamination and their cumulative impact on the ground water quality; (c) the potential adverse effects of a release on surface water quality, taking into account: (1) the quantity and quality of ground water and the direction of ground water flow; (2) the patterns of rainfall in the region; (3) the proximity of the tank system to surface waters; (4) the current and future uses of surface waters in the area and any water quality standards established for those surface waters; and (5) the existing quality of surface water, including other sources of contamination and the cumulative impact on surface water quality; and (d) the potential adverse effects of a release on the land surrounding the tank system, taking into account: (1) the patterns of rainfall in the region; and (2) the current and future uses of the surrounding land.(iii) The owner or operator of a tank system, for which a variance from secondarycontainment had been granted in accordance with the requirements of subparagraph (i) ofthis paragraph, at which a release of hazardous waste has occurred from the primary tanksystem but has not migrated beyond the zone of engineering control (as established in thevariance), must: (a) comply with the requirements of subdivision (g) of this section, except paragraph (4); and (b) decontaminate or remove contaminated soil to the extent necessary to: (1) enable the tank system, for which the variance was granted, to resume operation with the capability for the detection of and response to releases at least equivalent to the capability it had prior to the release; and 17
  • 76. (2) prevent the migration of hazardous waste or hazardous constituents to ground water or surface water; and (c) if contaminated soil cannot be removed or decontaminated in accordance with clause (b) of this subparagraph, comply with the requirements of paragraph (h)(2) of this section. (iv) The owner or operator of a tank system, for which a variance from secondary containment had been granted in accordance with the requirements of subparagraph (i) of this paragraph, at which a release of hazardous waste has occurred from the primary tank system and has migrated beyond the zone of engineering control (as established in the variance), must: (a) comply with the requirements of paragraphs (g)(1)-(4) of this section; (b) prevent the migration of hazardous waste or hazardous constituents to ground water or surface water, if possible, and decontaminate or remove contaminated soil. If contaminated soil cannot be decontaminated or removed, or if ground water has been contaminated, the owner or operator must comply with the requirements of paragraph (h)(2) of this section; and (c) provide secondary containment in accordance with the requirements of paragraphs (1)-(6) of this subdivision if repairing, replacing, or reinstalling the tank system, or reapply for a variance from secondary containment and meet the requirements for new tank systems in subdivision (c) of this section if the tank system is replaced. The owner or operator must comply with these requirements even if contaminated soil can be decontaminated or removed, and ground water or surface water has not been contaminated.(8) The following procedures must be followed in order to request a variance from secondarycontainment. (i) The commissioner must be notified in writing by the owner or operator that the owner or operator intends to conduct and submit a demonstration for a variance from secondary containment as allowed in paragraph (7) of this subdivision according to the following schedule: (a) for existing tank systems, at least 24 months prior to the date that secondary containment must be provided in accordance with paragraph (1) of this subdivision; and (b) for new tank systems, at least 30 days prior to entering into a contract for installation of the tank system. (ii) As part of the notification, the owner or operator must also submit to the commissioner a description of the steps necessary to conduct the demonstration and a timetable for completing each of the steps. The demonstration must address each of the factors listed in subparagraph (7)(i) or (ii) of this subdivision. (iii) The demonstration for a variance must be completed and submitted to the commissioner within 180 days after notifying the commissioner of intent to conduct the demonstration.6 NYCRR 375-1.8- Remedial Program (Quality Services-General Remedial ProgramRequirements)(c) Source removal and control measures. The following is the hierarchy of source removal andcontrol measures which are to be used, ranked from most preferable to least preferable: 18
  • 77. (1) Removal and/or treatment. All sources, concentrated solid or semi-solid hazardous substances, dense non-aqueous phase liquid, light non-aqueous phase liquid and/or grossly contaminated media shall be removed and/or treated; provided however, if the removal and/or treatment of all such contamination is not feasible, such contamination shall be removed or treated to the greatest extent feasible. (2) Containment. Any source remaining following removal and/or treatment set forth in this subdivision shall be contained; provided however, if full containment is not feasible, such source shall be contained to the greatest extent feasible. (3) Elimination of exposure. Exposure to any source remaining following removal, treatment and/or containment set forth in this subdivision shall be eliminated through additional measures, including but not limited to, as applicable, the timely and sustained provision of alternative water supplies and the elimination of volatilization into buildings; provided however, if such elimination is not feasible such exposure shall be eliminated to the greatest extent feasible. (4) Treatment of source at the point of exposure. Treatment of the exposure resulting from a source of environmental contamination at the point of exposure, as applicable, including but not limited to, wellhead treatment or the management of volatile contamination within buildings, shall be considered as a measure of last resort.6 NYCRR 375-3.8-Remedial Program (Quality Services-Brownfield Clean Up Program)(e) Cleanup tracks. For sites or portions of sites where the Department has determined thatremediation is needed to meet the remedial program requirements, each remedial alternative thatis developed and evaluated shall, in addition to all other requirements in this section and section375-1.8(c), conform to the requirements of one of the following cleanup tracks. (1) Track 1: Unrestricted use. The following provisions apply to a site, or portion thereof, being addressed pursuant to Track 1: (i) the remedial program shall achieve a cleanup level that will allow the site to be used for any purpose without any restrictions on the use of the site as described in subparagraph 375-1.8(g)(1)(i); (ii) the soil component of the remedial program shall achieve the unrestricted soil cleanup objectives as set forth in Table 375-6.8(a) for all soils above bedrock. (iii) the remedial program shall not include the use of long-term institutional or engineering controls; provided, however, that a restriction on groundwater use may be included as a component of the remedial program if the applicant: (a) is a volunteer; and (b) has demonstrated to the Departments satisfaction that there has been a bulk reduction in groundwater contamination to asymptotic levels; (iv) the remedial program may include the use of short-term employment of institutional or engineering controls provided: (a) the remedial program includes an active treatment system, either ex- situ or in-situ, which will operate for, or require, no more than 5 years to meet the applicable contaminant-specific soil cleanup objectives or remedial goals established for other contaminated media; (b) the remedial program requires the institutional control to assure the operation and integrity of the remedy, as well as to address potential human health exposures during this period; and 19
  • 78. (c) the remedial program includes a provision for the applicant to implement an alternative remedy to meet the soil cleanup objectives in the event that the short-term institutional period is exceeded; and (v) the Department may require the Applicant, or the Applicant may request, to develop a soil cleanup objective for a contaminant not included in Table 375- 6.8(a) as set forth in section 375-6.9.(2) Track 2: Restricted use with generic soil cleanup objectives. The following provisionsapply to a site, or portion thereof, being addressed pursuant to Track 2: (i) the remedial program may provide for the restriction of the use of the site as described in subparagraph 375-1.8(g)(2)(i); (ii) the soil component of the remedial program shall achieve the lowest of the three applicable contaminant-specific soil cleanup objectives for all soils above bedrock, as set forth in sections 375-6.4, 375-6.5 and 375-6.6, except as provided in subparagraph (iii) below; (iii) the requirement to achieve contaminant-specific soil cleanup objectives as set forth in Table 375-6.8(2) for all soils above bedrock shall not apply to soils at a depth greater than 15 feet below ground surface, provided that: (a) the soils below 15 feet do not represent a source of contamination; (b) the environmental easement for the site requires that any contaminated soils remaining at depth will be managed along with other site soils, pursuant to a site management plan; (c) off-site groundwater does not exceed standards; and (d) on-site groundwater use is restricted; and (iv) the remedial program shall not use long-term institutional or engineering controls to achieve the restricted soil cleanup objectives. The use of short-term institutional or engineering controls is allowed, provided: (a) the remedial program includes an active treatment system, either ex- situ or in-situ, which will operate for, or require, no more than 5 years to meet the applicable contaminant-specific soil cleanup objectives or remedial goals established; (b) the remedial program requires the institutional control to assure the operation and integrity of the remedy, as well as to address potential human health exposures during this period; and (c) the remedial program includes a provision for the applicant to implement an alternative remedy to meet the soil cleanup objectives in the event that the short-term institutional period is exceeded; (v) the remedial program may include the use of long-term institutional or engineering controls to address contamination related to other media including, but not limited to groundwater and soil vapor; and (vi) the Department may require the remedial party, or the remedial party may request, to develop a soil cleanup objective for a contaminant not included in Table 375-6.8(b) as set forth in section 375-6.9.(3) Track 3: Restricted use with modified soil cleanup objectives. The remedial programfor a site being addressed pursuant to Track 3 shall satisfy the provisions for a Track 2remedial program; provided, however, the Department may approve the modification ofone or more of the contaminant-specific soil cleanup objectives set forth in Table 375- 20
  • 79. 6.8(b) based upon site-specific data. Any such modification shall be performed inaccordance with section 375-6.9.(4) Track 4: Restricted use with site-specific soil cleanup objectives. The followingprovisions apply to a site, or portion thereof, being addressed pursuant to Track 4: (i) in developing the site-specific soil cleanup objectives, the Applicant may, solely or in combination: (a) use the soil cleanup objectives, as set forth in subpart 375-6; (b) develop or modify site specific soil cleanup objectives, as set forth at section 375-6.9; or (c) propose site-specific soil cleanup objectives which are protective of public health and the environment; (ii) the remedial program may include the use of long-term institutional or engineering controls to address all media; and (iii) exposed surface soils in a Track 4 remedy will be addressed as follows: (a) for residential use: (1) the top two feet of all exposed surface soils which exceed the site background values for contaminants of concern and are not otherwise covered by the components of the development of the site (e.g. buildings, pavement), shall not exceed the applicable contaminant-specific soil cleanup objectives as set forth in subparagraph (2)(ii) above; and (2) where it is necessary to utilize off-site soil to achieve this requirement, the soil brought to the site will satisfy the requirements of subdivision 375-6.7(d); (b) for commercial use: (1) the top one foot of all exposed surface soils which exceed the site background values for contaminants of concern and are not otherwise covered by the components of the development of the site (e.g. buildings, pavement), shall not exceed the applicable contaminant-specific soil cleanup objectives as set forth in subparagraph (2)(ii) above; and (2) where it is necessary to utilize off-site soil to achieve this requirement, the soil brought to the site will satisfy the requirements of subdivision 375-6.7(d); (c) for industrial use: (1) the top one foot of all exposed surface soils which exceed the site background values for contaminants of concern and are not otherwise covered by the components of the development of the site (e.g. buildings, pavement), shall not exceed the applicable contaminant-specific soil cleanup objectives as set forth in subparagraph (2)(ii) above; and (2) where it is necessary to utilize off-site soil to achieve this requirement, the soil brought to the site will satisfy the requirements of subdivision 375-6.7(d);(5) All Tracks. For remedial programs under all Tracks, the threat to public health and theenvironment resulting from contamination in environmental media other than soil shall 21
  • 80. be evaluated in the development of remedial alternatives and addressed in the alternatives analysis to ensure that the remedial program meets the requirements of ECL 27-1415(1), subdivisions 375-3.8(a) and (f), and section 375-6.7.6 NYCRR 376.1-General (Quality Services-Land Disposal Restrictions)(5) The commissioner may authorize an exemption, extension, or variance from any provision ofthis Part, so long as such action will not result in requirements that are less broad or less stringentthan the requirements of 40 CFR Part. 268 (see 370.1(e) of this Title). If an exemption,extension, or variance from the land disposal provisions of 40 CFR Part 268 (see 370.1(e) of thisTitle has been granted by the EPA Administrator pursuant to 40 CFR sections 268.5, 268.6,268.42(b), or 268.44, the commissioner must, if such action is to become effective in New YorkState, subsequently also approve such action, but the commissioner shall not grant approval inany way as to make such action broader in scope, longer in duration, or less stringent thanauthorized by the person of the obligation to comply with all other applicable provisions of thisPart. Applications for exemptions, extensions, or variances by any generator or facility shall bein accordance with the petition provisions of subdivision 373-1.1(e) of this Title.6 NYCRR 376.4- Treatment Standards (Quality Services-Land Disposal Restrictions)(e) Variance from a Treatment Standard. (1) Based on a petition filed by a generator or treater of hazardous waste with the EPA Administrator, pursuant to 40 CFR section 268.44 and the commissioner, the commissioner may approve a variance from an applicable treatment standard if: (i) It is not physically possible to treat the waste to the level specified in the treatment standard, or by the method specified as the treatment standard. To show that this is the case, the petitioner must demonstrate that because the physical or chemical properties of the waste differ significantly from waste analyzed in developing the treatment standard, the waste cannot be treated to the specified level or by the specified method; or (ii) It is inappropriate to require the waste to be treated to the level specified in the treatment standard or by the method specified as the treatment standard, even though such treatment is technically possible. To show that this is the case, the petitioner must either demonstrate that: (a) Treatment to the specified level or by the specified method is technically inappropriate (for example, resulting in combustion of large amounts of mildly contaminated environmental media); or (b) For remediation waste only, treatment to the specified level or by the specified method is environmentally inappropriate because it would likely discourage aggressive remediation. (iii) The EPA Administrator must also have approved the variance pursuant to 40 CFR section 268.44. (2) Each petition must be submitted in accordance with the procedures in 6 NYCRR Part 370.3(a). (3) Each petition must include the following statement signed by the petitioner or an authorized representative: “I certify under penalty of law that I have personally examined and am familiar with the information submitted in this petition and all attached documents, and that, based on my 22
  • 81. inquiry of those individuals immediately responsible for obtaining the information, I believe that the submitted information is true, accurate, and complete. I am aware that there are significant penalties for submitting false information, including the possibility of fine and imprisonment.“ (4) After receiving a petition for variance from a treatment standard, the commissioner may request any additional information or samples which he may require to evaluate the petition. Additional copies of the complete petition may be requested as needed.6 NYCRR 380-3.5-Variances (Quality Services-Permits for Discharge and Disposal ofRadioactive Material to the Environment)(a) Unless otherwise precluded by law, the department may, upon written application from anyperson who is subject to this Part, grant a variance from one or more specific provisions of thisPart under the conditions set forth in this section.(b) Every application for a variance must: (1) be submitted to the department in writing; and (2) be submitted in conjunction with an application for a permit, where a permit is also required pursuant to this Part; and (3) identify the specific provisions of this Part from which a variance is sought; and (4) demonstrate that compliance with the identified provisions would, on the basis of conditions unique to the persons particular situation, tend to impose an unreasonable economic, technological, or safety burden on the person or the public, and (5) demonstrate that the proposed activity will have no significant adverse impact on the public health and safety and the environment,will be consistent with the provisions of the ECL, and will meet all other provisions of this Part.(c) An application for a permit, for approval of proposed procedures to discharge or dispose ofradioactive material subject to this Part not otherwise authorized by Subpart 380.4 of this Part,must also meet the following: (1) The application must satisfy the general requirements for complete applications contained in Part 621 of this Title; and (2) The application must include all information required in section 380-3.2(b) of this Subpart; and (3) The application must include: (i) A description of the waste containing radioactive material to be disposed of, including the physical and chemical properties relevant to risk evaluation, and the proposed manner and conditions of waste disposal; and (ii) an analysis and evaluation of pertinent information on the nature of the environment; and (iii) the nature and location of other potentially affected licensed and unlicensed facilities; and (iv) analyses and procedures to ensure that doses are maintained ALARA and within the dose limits in section 380-5.1 of this Part. 23
  • 82. 6NYCRR 381.8- Permit Application Procedures (Quality Services- Transporters of Low-Level Radioactive Waste)(b) Variances. (1) The department may, upon written application from any person who is subject to this Part, grant a variance from one or more specific provisions of this Part, consistent with this subdivision. (2) Any application for a variance hereunder must: (i) identify the specific provisions of this Part from which a variance is sought; (ii) demonstrate that compliance with the identified provisions would, on the basis of conditions unique and peculiar to the applicants particular situation, impose a substantial financial, technological or safety burden on the applicant or the public; and (iii) demonstrate that the proposed activity will have no significant adverse impact on public health, safety or welfare, the environment or natural resources, and will be consistent with the provisions of the ECL, the purpose of this Part and the performance expected from applications of this Part.6 NYCRR 382.22- Additional Siting Criteria for Aboveground & Belowground Disposal(Quality Services - Regulation of Low-Level Radioactive Waste Disposal FacilitiesSiting Criteria for Low-Level Radioactive Waste Disposal Sites)(b) Groundwater and hydrogeology. (1) The disposal site must have sufficient depth to the water table that groundwater intrusion, perennial or otherwise, will not contact the disposal units. An exception to this requirement that would allow disposal below the water table may be approved by the department if it can be conclusively shown that disposal site characteristics will result in molecular diffusion being the predominant means of radionuclide movement and the rate of movement will result in compliance with the performance objectives of sections 382.10 - 382.15 of this Part. In no case will the waste disposal units be permitted in the zone of fluctuation of the water table.6 NYCRR 382.4- Variances & Exemptions (Quality Services -Regulation of Low-LevelRadioactive Waste Disposal Facilities)(a) The department may grant a variance from any of the provisions of this Part except theperformance objectives in sections 382.10 - 382.15. The department may grant such a variance ifan applicant establishes, to the satisfaction of the department, that: (1) compliance with the provision from which the variance is sought would impose on the applicant or the public an unreasonable safety or economic hardship; (2) with the requested variance in effect, the proposed land disposal facility would meet the performance objectives in sections 382.10 - 382.15 of this Part; and (3) the requested variance would have no significant adverse impact on the public health, safety or welfare, the environment or natural resources, and would be consistent with the provisions of the ECL and the purpose of this Part.(b) In granting any variance pursuant to this section, the department may impose specificconditions reasonably necessary to ensure that the granting of such variance will have no adverseimpact on the environment, natural resources, or on the public health, safety or welfare. 24
  • 83. 6 NYCRR 383-1.5-Variances (Quality Services -Regulations for Low-Level RadioactiveWaste Disposal Facilities Financial Assurance Requirements)(a) Unless otherwise precluded by law, the department may, upon written application from anyperson who is subject to this Part, grant a variance from one or more provisions of this Partexcept the performance objectives under the conditions set forth in this Subpart. An applicationfor a variance must: (1) identify the specific provisions of this Part from which a variance is sought; (2) demonstrate to the satisfaction of the department that compliance with the identified provision would impose on the applicant or the public an unreasonable safety or economic hardship; (3) demonstrate to the satisfaction of the department that, with the requested variance in effect, there would be reasonable assurance that the performance objectives would be met; and (4) demonstrate to the satisfaction of the department that the requested variance would: (i) cause no significant adverse impact on the environment, natural resources, or the public health, safety and welfare; and (ii) would be consistent with the other provisions of the ECL and this Part and Part 382 of this Title.(b) In granting a variance pursuant to this section, the department may impose specificconditions reasonably necessary to ensure that the granting of such variance will cause nosignificant adverse impact on the environment, natural resources, or on the public health, safety,or welfare.6 NYCRR 383-6.11- Other Provisions (Quality Services-Radioactive Waste Land DisposalFacilities Financial Assurance Requirements)(a) Modification/variance. (1) The department may, upon written application from any person who is subject to this Subpart, concurrent with an application for a new permit, or for a modification or renewal of an existing permit, grant a modification/variance from one or more specific provisions of this Subpart under the conditions set forth in this section. (2) Every application for modification/variance must: (i) identify the specific provisions of this Subpart from which a modification/variance is sought; (ii) demonstrate that compliance with the identified provisions, on the basis of conditions unique and peculiar to the applicants particular situation, is unnecessary or inappropriate consistent with the public interest; (iii) demonstrate that the proposed modification/variance will have no significant adverse impact on the public health, safety or welfare, the environment or natural resources; (iv) demonstrate that the minimum requirements of this Subpart which ensure proper facility closure based upon the estimates approved pursuant to this Subpart and coverage of personal injury and property damage to third parties caused by the operation of the land disposal facility will not be reduced or eliminated. (3) The commissioner may, in his discretion, grant a modification/variance from any provision of this Subpart upon a written finding that each of the demonstrations identified in paragraph (2) of this section are successfully made, and that such 25
  • 84. modification/variance is consistent with public interest and the purposes of this Subpart; provided, however, the commissioner shall not grant a modification/variance from the minimum requirements of this Subpart which insure proper facility closure and coverage of personal injury and property damage to third parties caused by the operation of the facility.6 NYCRR 422.1-General Provisions (Quality Services- Mined Land-Use Plan)(f) The department may modify any of the substantive requirements of this Part upon a showingby the applicant that the proposed modification will achieve the same degree of environmentalprotection as would be achieved by compliance with the provision for which modification isrequested. Requests for modification must be in writing in the original application, renewalapplication or by amendment.6 NYCRR 422.2- Mining Plans, Specific Provisions (Quality Services- Mined Land-UsePlan)(3) a description of the mining method indicating the method of extraction, the sequence of cutsand excavations, the disposition of materials other than through sale, exchange, commercial,industrial or municipal use, and the use of haulageways. The applicant shall be governed by thefollowing standards when submitting the required information. (i) the method of extraction shall mean removal such as by drilling and blasting, the use of mechanical equipment (backhoe, shovel, front end loader, dragline) or by dredging. (ii) Any cut or excavation within the permit area, whether it is for the purpose of gaining access to a mineral, mining a mineral, or of transporting a mineral shall be considered to affect the reclamation plan unless the applicant can demonstrate otherwise. Shafts, drifts, adits, tunnels, lifts,and inclines shall be considered types of cuts and excavations. (iii) The perimeter of a temporary or permanent mine floor shall not be established closer to either the property line most nearly adjacent to the affected land or to any easement within or adjacent to the affected land that the following: a distance of 25 feet measured in a horizontal plane when the adjacent property or easement is at or below the proposed final elevation of the affected land; a distance equal to the sum of 25 feet plus one and one-half times the height of the mine face in an unconsolidated material or a distance equal to the sum of 25 feet plus one and one-quarter times the height of the mine face in a consolidated material, when the adjacent property is at al higher elevation than the affected land. The applicant may, with the approval of the department, modify the distance requirements contained in this subparagraph. (iv) The perimeter of a stockpile or spoil bank shall not be established closer to either the property line most nearly adjacent to the affected land or to any easement within or adjacent to the affected land than a distance of 25 feet. The applicant may, with the approval of the department, modify the distance requirement contained in this subparagraph. 26
  • 85. 6 NYCRR 422.3- Reclamation Plan, Specific Provisions (Quality Services- Mined Land-UsePlan)([b]) All ridges, peaks and slopes created either by excavation of a mineral or by the disposal ofspoil shall be left no steeper than the following: rock (ledge or bedrock)-90 degrees dependingupon the condition and characteristics of the formation as it exists in the mine; talus (brokenrock)-37 degrees, or a slope of one vertical on one and one-quarter horizontal, unless the talus isto be covered and revegetated in which case the slope shall not exceed that which is required forfine sand, silt and clay; coarse sand and gravel-33 degrees, or a slope of one vertical on one andone-half horizontal; fine sand, silt and clay-26 degrees or a slope of one vertical on twohorizontal. The slope provisions contained in this clause may be modified with the approval ofthe department.6 NYCRR 500.12- Variances (Resource Management Services- Floodplain ManagementRegulations Development Permits)(a) Persons seeking a variance from the provisions of this Part must submit a written request tothe regional permit administrator. Such request will be treated as an application for adevelopment permit modification for purposes of the procedures specified in this Part and in Part621 of this Title. The variance request must: (1) state the name and address of the applicant; (2) describe the location and scope of the proposed project; (3) indicate the basis for the applicants claim of unnecessary hardships or practical difficulties in complying with any provisions of this Part. Insufficient lot size does not constitute an unnecessary hardship or a practical difficulty; and (4) be accompanied by such information as the regional permit administrator deems necessary for the request for the variance to be considered complete as prescribed in Part 621 of this Title.(b) A variance will be granted if the department determines that: (1) the applicant has shown good and sufficient cause; (2) failure to grant the variance would result in exceptional hardship to the applicant; (3) granting the variance will not result in increased flood heights, additional threats to public safety or extraordinary public expense, create nuisances, cause fraud on or victimization of the public relative to the goals and objectives of the National Flood Insurance Program or conflict with local laws or ordinances; (4) the terms of the variance, if granted, would be the minimum necessary to afford relief considering the flood hazard; and (5) if the proposed project is located within a designated regulatory floodway, the applicant has provided an engineering report certified by a licensed professional engineer which demonstrates through hydrologic and hydraulic analyses performed in accordance with standard engineering practice that the proposed encroachment will not result in any increase in flood levels within the community during the occurrence of the base flood discharge. 27
  • 86. 6 NYCRR 502.8- Variance Provisions for State Agencies (Resource Management Services-Floodplain Management Criteria for State Projects)(a) Variances to the provisions of this Part may be granted by the department in accord with this section. No project or activity which requires a variance to any provision of this Part shall be commenced unless the department grants a variance in accord with this section.(b) Requests for variances to the provisions of this Part shall be submitted in writing to the department by the State agency requesting such variance. Any request for a variance pursuant to this section shall be filed, by the State agency requesting the variance, with the department at the earliest time practicable in the planning of the project or activity involved, and to the maximum extent possible prior to the submission of a formal budget request for the funding of said project or activity.(c) The procedures for the submission of requests for variances under this section, time periods for department action thereon, provisions relating to minor projects, and notice and hearing requirements, shall be governed by the provisions of Part 621 of this Title. A copy of the departments decision shall be sent by mail to the State agency requesting the subject variance and to the director of the Division of the Budget.(d) Variances shall not be issued by the department for any project or activity within any designated regulatory floodway if any increase in flood levels would result during the base flood discharge.(e) Variances shall be issued by the department only upon: (1) a showing of good and sufficient cause; (2) a determination that the project will, consistent with social, economic and other essential considerations of State policy, be undertaken in accordance with the purposes of this Part to the maximum extent possible; (3) a determination that the granting of a variance will not result in materially increased flood damages, add additional threats to public safety, result in extraordinary public expense, or create nuisances or cause victimization of the public; and (4) a determination that the variance granted is the minimum necessary, considering flood hazard, to afford relief.(f) The department may attach to any variance issued, pursuant to this section, such conditions as are necessary to insure that any action taken pursuant to said variance is consistent with the purposes and limitations of sections 502.4, 502.5 and 502.6 of this Part to the maximum extent possible.6 NYCRR 502.9 – Variance Provisions Relating to Certain Facilities & Lands Owned orFormerly Owned by the State (Resource Management Services – Floodplain ManagementCriteria for State Projects)(e) Standards for the granting of a variance. (1) The petitioner shall establish to the satisfaction of the commissioner that he will suffer an unnecessary hardship if the variance is not granted, or that there are practical difficulties in the way of carrying out the strict letter of the requirements of the covenant and use restriction. In the absence of a satisfactory showing of good and sufficient cause, no variance will be issued. (2) The basis for the granting of a variance shall be a determination that the petitioner has established: 28
  • 87. (i) that the proposed project or use of such lands is consistent with the findings and purposes of the New York State Legislature as expressed in section 36-0101 of the Environmental Conservation Law; and (ii) that the public safety and welfare will be secured and substantial justice done.6 NYCRR 505.13- Variances (Resource Management Services –Coastal ErosionManagement)(a) When an applicant can demonstrate that the strict application of the restrictions orrequirements of sections 505.7 - 505.9 of this Part will cause practical difficulty or unnecessaryhardship, any such restriction or requirement may be varied or modified, provided that thefollowing criteria are met: (1) no reasonable, prudent, alternative site is available; (2) all responsible means and measures to mitigate adverse impacts on natural systems and the functions and protective values described in section 505.3 of this Part have been incorporated into the project design and will be implemented at the developers expense; (3) the development will be reasonably safe from flood and erosion damage; (4) the variance requested is the minimum necessary to overcome the practical difficulty or hardship which was the basis for requesting it; and (5) where public funds are utilized, the public benefits clearly outweigh the long-term adverse effects for any proposed activities and development.(b) Any person wishing to make a request for a variance must do so in writing. The variancerequest must specify the standard, restriction or requirement to be varied and how the requestedvariance meets the criteria established in subdivision (a) of this section. The burden ofdemonstrating that the requested variance meets these criteria rests entirely with the applicant.6 NYCRR 553.4- Exceptions (Resource Management Services- Well Spacing)Where in its opinion there exists good and sufficient reason to permit an exception to the wellspacing provisions of sections 553.1, 553.2 and 553.3 of this Part, the department may permitreasonable well location exceptions which will protect correlative rights and prevent waste. Anyapplication for such an exception shall be made in writing in triplicate as a separate attachment tothe application for permit as outlined in section 552.1 of this Title and shall set forth in ampledetail the reason or reasons for such exception request. Upon receipt of this exception request,the department shall promptly schedule a public hearing to facilitate a decision on theapplication. When a location exception is granted, the department may adjust the productionfrom such well or take such other action as it may deem necessary for the protection ofcorrelative rights or to prevent waste.6 NYCRR 554.5- Deviation (Resources Management Services-Drilling Practices & Reports)(a) The maximum point at which a well penetrates a producing formation shall not vary unreasonably from the vertical drawn from the center of the hole at the surface. Minor deviations will be permitted, however, without special permission for short distances, to straighten the hole, to sidetrack junk, or to correct other mechanical difficulties.(b) If for any reason the department feels that a well has been deviated excessively, it shall have the right to require the operator to have a complete angular deviation and directional survey made in the well by an approved well surveying company and certified as to correctness at the operators sole cost, risk and expense. In the event the survey reveals any unreasonable 29
  • 88. violations of the applicable well location or spacing regulations, the department may either require the excessively deviated well to be redrilled or to be plugged and abandoned at the option of the operator.(c) Any owner or operator so desiring, also may petition the department for permission to have an angular deviation and directional survey made in any wells on leases or units offsetting the leases or units of the interested owner or operator. If after public hearing on the petition, the department feels the request is justified, and the petitioner has deposited good and sufficient security or bond, the department may issue an order authorizing the survey to be made by an approved well surveying company and certified as to correctness at the sole cost, risk and expense of the petitioner. In the event the survey reveals an unreasonable violation of the applicable well location or spacing requirements, the department then will assess all the costs of the survey to the violator and may either require any excessively deviated well to be redrilled or to be plugged and abandoned at the option of its operator.(d) Controlled directional drilling also shall be permitted upon the approval of the department. Any operator desiring to intentionally deviate a well from the vertical shall first make written application to the department. The application, which shall be in addition to the permit application as provided in section 552.1 of this Title, must contain the following information: (1) names of the county, field or area, pool and lease and well number; (2) description of the surface location and of the target bottomhole location in feet from the two nearest lease boundaries; (3) reason for the proposed intentional deviation; (4) names and addresses of the offsetting operators and a statement that each has been sent a copy of the application by registered mail, and the date of such mailing.(e) The application must be accompanied by a neat, legible plat drawn to scale which shows the well, all offsetting leases and the wells located thereon, the pool in which they are completed, and the names of the offsetting operators.(f) Concurrently with the filing with the department of the application to intentionally deviate the well, the applicant must send a copy of said application and accompanying plat or plats by registered mail to the operators of all leases or units offsetting the lease or unit on which the well is to be drilled.(g) Upon receipt of the application to intentionally deviate the well, the department will hold same for 10 days. If within said 10-day period any offset operator reciting reasonable cause, shall file in writing with the department a protest to such intentional deviation, or if the department is not in accord with the proposed deviation, the application shall be scheduled for public hearing. If no objection from either an offset operator or the department is interposed within the 10-day period, and all other things being in order, the application shall be approved and written permission for the intentional deviation shall be issued by the department. The compulsory 10-day waiting period shall not be required if the application for permission to intentionally deviate the well is accompanied by the written consent of the operators of all leases or units offsetting the lease or unit containing the well proposed for deviation.(h) Within 30 days after the completion of an intentionally deviated well, a complete angular deviation and directional survey of the well obtained by an approved well surveying company and certified as to correctness shall be filed with the department. 30
  • 89. 6 NYCRR 598.1-General (Resources Management Services-Handling & Storage ofHazardous Substances)(e) Variances. (1) The Department may, upon written request from any person subject to this Part, grant a variance from one or more specific provisions of this Part. An application for a variance must: (i) identify the specific provisions of this Part from which a variance is sought; (ii) demonstrate that compliance with the identified provisions would, on the basis of conditions unique to the persons particular situation, tend to impose a substantial economic, technological or safety burden on the person; and (iii) demonstrate that the proposed activity will have no significant adverse impact on the public health, safety, welfare or the environment and will be consistent with the provisions of the ECL and the performance expected from application of this Part.6 NYCRR 599.1-General (Resources Management Services-Standards for New or ModifiedHazardous Substance Storage Facilities)(e) Variances. (1) The department may, upon written request from any person subject to this Part, grant a variance from one or more specific provisions of this Part. An application for a variance must: (i) identify the specific provisions of this Part from which a variance is sought; (ii) demonstrate that compliance with the identified provisions would, on the basis of conditions unique to the persons particular situation, tend to impose a substantial economic, technological or safety burden on the person; and (iii) demonstrate that the proposed activity will have no significant adverse impact on the public health, safety, welfare or the environment and will be consistent with the provisions of the ECL and the performance expected from application of this Part. (2) The department may not grant any variance which would result in regulatory controls less stringent than those in 40 CFR Parts 280 and 281 (see section 598.1[j] of this Title). (3) In granting any variance, the department may impose specific conditions necessary to assure that the subject activity will have no significant adverse impact on the public health, safety, welfare or the environment.6 NYCRR 614.1-General (Resources Management Services-Standards for New andSubstantially Modified Petroleum Storage Facilities)(e) Variances. The department may, upon written application from any person subject to thisPart, grant a variance from one or more specific provisions of this Part. In granting a variance,the department may impose specific conditions necessary to assure that the variance will have nosignificant adverse impact on the environment or public health. An application for a variancemust: (1) identify the specific section or sections from which a variance is sought; and (2) provide the department with evidence including data, plans, specifications and test results that show the new or alternative designs, practices or methods protect the environment in a manner equal to or greater than the requirements of this Part. 31
  • 90. 6 NYCRR 621.3-General Requirements for Applications (General Regulations-UniformProcedures Permit Application Procedures)(5) If variances from permit standards are sought and are specifically provided for in a permitprograms implementing regulations, then the application must include a request and justificationfor such variances as outlined in the programs implementing regulations.6 NYCRR 645-8.2- Procedure (Independent Agencies Within the Department- VarianceProcedures)(a) Any person seeking a variance from the commission shall submit an application for avariance to the commission on such form as the commission may prescribe. The application for avariance shall be processed as a permit application in accordance with the procedures specifiedin Subpart 645-5 of this Part.(b) At a minimum, any application for a variance must: (1) identify the specific provisions of the regulations of the commission from which a variance is sought; (2) demonstrate that compliance with the identified provisions would, on the basis of conditions unique and peculiar to the applicants particular situation, impose a substantial technological, financial or safety burden upon the applicant or the public; and (3) demonstrate that the proposed activity will have no adverse impact on the public health, safety or welfare, the environment or the natural resources of the park.6 NYCRR 645-8.3-Standard (Independent Agencies Within the Department- VarianceProcedures)(a) No variance shall be granted under this Subpart unless the applicant shall establish bysubstantial, credible evidence unnecessary hardship.(b) In order to establish unnecessary hardship, an applicant must demonstrate: (1) unique and peculiar conditions to the applicants particular situation which impose a substantial technological, financial or safety burden upon the applicant or the public; (2) that because of such uniqueness, there is no reasonable possibility that the applicants property or, if no property is involved, the continuation of the applicants business, enterprise, use or activity will bring a reasonable return following conformity with the regulations of the commission; (3) that the proposed activity will have no adverse impact on the public health, safety or welfare, the environment or the resources of the park; and (4) that the granting of a variance will not alter the essential character of the area in which the proposed use or activity is located, and will not lead to congestion in the park.6 NYCRR 646-4.18- Variances from Stormwater Regulatory Programs (IndependentAgencies Within the Department- Stormwater Management)(d) A permit application involving a variance shall be processed in accordance with Subpart 645-5 of this Title except that no variance shall be granted unless the commission finds that theapplicant has demonstrated entitlement to the variance pursuant to the criteria in section 267-b3.(b) of the New York State Town Law. The decision on a variance under municipal jurisdictionshall be in accordance with sections 267-a and 267-b of the New York Town Law in the case ofa town or sections 7-712-a and 7-712-b of the New York State Village Law in the case of avillage, and any amendments thereto provided, however, that the grant of any variance to the 32
  • 91. shoreline or cutting restrictions of section 806 of the Adirondack Park Agency Act (ExecutiveLaw, article 27) must be in compliance with that section and section 807 of the act, if applicable.6 NYCRR 646-8.5-Variances (Independent Agencies Within the Department- SubstantiveRegulations)Any person who experiences unnecessary hardship by reason of this Subpart may apply to theLake George Park Commission for a variance from this Subpart subject to the standards,procedures and conditions required by 6 NYCRR Subpart 645-8. Notwithstanding the failure ofan applicant to demonstrate unnecessary hardship, the commission may grant a variance upon ashowing by the applicant that the proposed project or activity incorporates best technologiesavailable, as determined by the commission, for wastewater and stormwater management. Uponany application for a variance, the commission may coordinate its review of the varianceapplication with the review of the project or activity by other involved agencies.6 NYCRR 653.6- Variances (Division of Water Resources- Approval of RealtySubdivisions)(a) The commissioner may on written application grant a variance from a specific provision of this Part in a particular case, subject to appropriate conditions, where such variance is in harmony with the general purpose and intent of this Part.(b) The commissioner may impose more stringent requirements in a specific case when necessary to assure an adequate and satisfactory water supply and sewerage facility for the subdivision.6 NYCRR 661.11-Variances (Division of Water Resources-Tidal Wetlands-Land UseRegulations)(a) Where there are practical difficulties in the way of carrying out any of the provisions ofsection 661.6 of this Part or where in the departments judgment the strict application of theprovisions of section 661.6 would be contrary to the purposes of this Part, the department shallhave authority in connection with its review of an application for a permit under this Part to varyor modify the application of any provisions in such a manner that the spirit and intent of thepertinent provisions shall be observed, that public safety and welfare are secured and substantialjustice done and that action pursuant to the variance will not have an undue adverse impact onthe present or potential value of any tidal wetland for marine food production, wildlife habitat,flood and hurricane and storm control, cleansing ecosystems, absorption of silt and organicmaterial, recreation, education, research, or open space and aesthetic appreciation. Any personwishing to make application for a variance shall do so in writing in conjunction with his or herapplication for a permit under this Part and shall specify the proposed variance, which elementsof section 661.6 Development Restrictions, relief is sought from, the minimum relief that isnecessary, the practical difficulties claimed, a discussion of alternate site possibilities, adiscussion of change of project objective possibilities and a discussion of environmental impactreduction and/or mitigation measures to be employed. The burden of showing that a variance tosuch provisions should be granted shall rest entirely on the applicant. 33
  • 92. 6 NYCRR 665.8-Variances From Statewide Minimum Land-use Regulations (Division ofWater Resources- Local Government Implementation of the Freshwater Wetlands Act &Statewide Land-use Regulations for Freshwater Wetlands)(a) In accordance with subdivision 24-0903.2 of the act, a local government that has assumed regulatory authority pursuant to this part may submit within six months of receipt, and then annually to the commissioner a proposed variance from the statewide minimum land-use regulations in section 665.7(G) of this Part to govern wetlands within its boundaries.(b) Such a proposed variance must be consistent with the purposes of the act and may be more or less restrictive than the statewide minimum land-use regulations. Where less restrictive, the proposed variance must be accompanied by supporting material setting forth, among other things, that there are overriding economic and social considerations vital to the growth and economic base of the local government that clearly require such variance.6 NYCRR 666.9-Variances from the Regulations (Division of Water Resources-Regulationor Administration and Management of the Wild, Scenic and Recreational Rivers System inNew York State Excepting Private Land in the Adirondack Park )(a) No variance may authorize any development or improvement prohibited by the act. Thedepartment, upon receipt of a written request made in conjunction with a permit applicationpursuant to this Part, may vary or modify any provision of this Part relating to allowable landuses or development so long as it is the minimum variance necessary and only if: (1) in the case of a request for a use variance, the provision(s) to be varied or modified would cause an unnecessary hardship for the applicant. In order to prove such unnecessary hardship the applicant must demonstrate that: (i) the provision(s) to be varied or modified deprive the applicant of all economic use or benefit from the property in question, which deprivation must be established by competent financial evidence; (ii) the alleged hardship relating to the property in question is unique, and does not apply to a substantial portion of the river corridor; (iii) the requested use variance, if granted, will not alter the essential character of the river corridor; and (iv) the alleged hardship has not been self-created; and (2) in the case of a request for an area variance, the area or dimensional provision(s) to be varied or modified would cause practical difficulty for the applicant. In making its determination, the department will consider the benefit to the applicant if the variance is granted, as weighed against the adverse impacts upon river resources. The department will also consider: (i) whether and to what extent a change will be produced in the character of the river corridor or a detriment to nearby properties will be created by the granting of the area variance; (ii) whether the benefit sought by the applicant can be achieved by some method, feasible for the applicant to pursue, other than an area variance; (iii) whether the requested area variance is substantial; (iv) whether the proposed variance will have an adverse effect or impact on the physical or environmental conditions in the river corridor; and (v) whether the alleged practical difficulty was self-created, which consideration will be relevant to the decision of the department, but will not necessarily 34
  • 93. preclude the granting of the area variance.In addition to addressing the foregoing considerations, an applicant for an area variance has the option of seeking to prove, by competent financial evidence, that the strict application of the subject provision(s) of this Part will result in significant economic injury. Such evidence will be limited to the effect of such provision(s) upon the value of the property in question; whether the value would be enhanced were a variance granted will not be relevant. If the applicant demonstrates significant economic injury, the burden is on the department to establish that the strict application of the subject provision(s) is reasonably related to the purpose and policy of the act and this Part. (3) in the case of applicants which are State agencies or municipal corporations, the granting of a variance must be equally as environmentally protective of the river values identified in section 666.2(e) of this Part as compliance with the provision(s) to be varied and must fulfill a public health, safety or welfare function.(b) A written request for a variance will contain each of the following: (1) a description of the variance requested; (2) a listing of each standard to be varied; (3) a statement of the minimum relief necessary from each standard to be varied; (4) a map of the area showing the location of the requested variance, proposed mitigation, property boundaries, and adjacent owners of record, if deemed necessary by the department; (5) in the case of a request for a use variance, the applicant may be required to provide financial evidence which may include the following: (i) the rate of return on the property both with and without the requested variance; (ii) the owners investment in the property, including purchase price, taxes, expenses, carrying costs, and cost of improvements; and (iii) income, if any, produced by the property; (6) a discussion of alternative site possibilities outside the river area; and (7) a discussion of proposals for environmental impact reduction and/or mitigation. Such proposed mitigation must comply with the following: (i) the mitigation must occur on or in the immediate vicinity of the site of the proposed variance if possible; (ii) the location of the proposed mitigation must be subject to regulation under the act and this Part upon completion; and (iii) the mitigation must provide substantially the same or more benefits than will be lost through the proposed activity.(c) Any mitigation required in connection with the grant of a variance will be included as apermit condition and must be completed if other work is commenced.(d) Any land use or development which, but for this subdivision, would require a variance due tononcompliance with one or more specific standards or criteria in this Part, may be permitted bythe department without such variance if: (1) the department determines that the project, if approved, will not adversely impact any affected river resource; and (2) the project satisfies all other applicable standards and criteria, including the standards for permit issuance set forth in section 666.8 of this Part. 35
  • 94. For the purposes of this subdivision, a determination of complete application pursuant to Part621 of this Title shall not preclude the department from requiring an applicant to submitadditional information in the event that one or more potential significant adverse impacts areidentified and a variance is necessary for the project to proceed.6 NYCRR 702.17-Variances to Effluent Limitations Based on Standards and GuidanceValues (Division of Water Resources- Derivation & Use of Standards & Guidance Values(a) The department may grant, to an applicant for a SPDES permit or to a SPDES permittee, avariance to a water quality-based effluent limitation or groundwater effluent limitation includedin a SPDES permit. (1) A variance applies only to the permittee identified in such variance and only to the pollutant specified in the variance. A variance does not affect or require the department to modify a corresponding standard or guidance value. A variance does not affect or require the department to modify a corresponding groundwater effluent limitation for the groundwater as a whole. (2) A variance shall not apply to a new or recommencing discharger in the Great Lakes System unless the proposed discharge is a temporary one that is necessary to alleviate an imminent and substantial danger to the public health or the environment that is greater than the danger from not achieving the standard or guidance value. For the purpose of this Part, an imminent and substantial danger to the public health or the environment shall include, but not be limited to, a significant threat to the environment as defined in Part 375 of this Title. (3) A variance shall not be granted that would likely jeopardize the continued existence of any endangered or threatened species or result in the destruction or adverse modification of such species critical habitat. (4) A variance shall not be granted if standards or guidance values will be attained by implementing effluent limits required under section 750-1.11(a) of this Title and by the permittee implementing cost-effective and reasonable best management practices for nonpoint source control. (5) A variance term shall not exceed the term of the SPDES permit. Where the term of the variance is the same as the permit, the variance shall stay in effect until the permit is reissued, modified or revoked.(b) A variance may be granted if the requester demonstrates that achieving the effluent limitationis not feasible because: (1) naturally occurring pollutant concentrations prevent attainment of the standard or guidance value; (2) natural, ephemeral, intermittent or low flow conditions or water levels prevent attainment, unless these conditions may be compensated for by the discharge of sufficient volume of effluent to enable the standard or guidance value to be met without violating water conservation requirements; (3) human-caused conditions or sources of pollution prevent attainment of the standard or guidance value and cannot be remedied or would cause more environmental damage to correct than to leave in place; (4) dams, diversions or other types of hydrologic modifications preclude attainment of the standard or guidance value, and it is not feasible to restore the waterbody to its 36
  • 95. original condition or to operate such modification in a way that would result in such attainment; (5) physical conditions related to the natural features of the waterbody, such as the lack of a proper substrate cover, flow, depth, pools, riffles, and the like, unrelated to chemical water quality, preclude attainment of the standard or guidance value; or (6) controls more stringent than those required by section 750-1.11(a) of this Title would result in substantial and widespread economic and social impact.(c) In addition to the requirements of subdivision (b) of this section, the requestor shall alsocharacterize, using adequate and sufficient data and principles, any increased risk to humanhealth and the environment associated with granting the variance compared with attainment ofthe standard or guidance value absent the variance, and demonstrate to the satisfaction of thedepartment that the risk will not adversely affect the public health, safety and welfare.(d) The requestor shall submit a written application for a variance to the department. Theapplication shall include: (1) all relevant information demonstrating that achieving the effluent limitation is not feasible based on subdivision (b) of this section; and (2) all relevant information demonstrating compliance with the conditions in subdivision (c) of this section.6 NYCRR 750-1.6-Application to Obtain Individual SPDES Permits (Division of WaterResources-Obtaining a Spdes Permit)(f) A permit for a sewage disposal system or approval of a sewer extension serving or intended toserve more than one separately owned property shall be issued only to either a governmentalagency, municipality, or sewage disposal corporation formed and regulated pursuant to article 10of the Transportation Corporations Law. The commissioner may, on written application, grant avariance from this provision in a particular case, subject to appropriate conditions, includingbonding requirements, where such variance is in harmony with the general purposes and intent ofthis Chapter. 37
  • 96. EXHIBIT C